ML20148T437
| ML20148T437 | |
| Person / Time | |
|---|---|
| Issue date: | 11/02/1978 |
| From: | Stoiber C NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Ahearne J, Bradford P, Gilinsky V, Hendrie J, Kennedy R NRC COMMISSION (OCM) |
| References | |
| REF-10CFR9.7 NUDOCS 7812050118 | |
| Download: ML20148T437 (5) | |
Text
, ~
/[
UNITED STATES -
, O NUCLEAR REGULATORY COMMISSION p'
5{
't WASHINGTON. D. C. 20555 f.
f*.D
/
November 2, 1978, MEMORANDUM FOR:
Chairaan Hendrie Commis.11oner Gilinsky Commissioner Kennedy-Commissioner Bradford Commissioner Ahearne l
/ arlton R. Stoiber
'FROM:
h C
\\ / Assistant General Counsel
SUBJECT:
PETITION FOR FURTHER TARAPUR HEARINGS The Commission now formally has before'it export license application XSNM-1222, the' latest in the* series of appli-cations by the Edlow Internatienal Company seeking 1
authorization to ship low-enriched uranium to India as fuel for the Tarapur Atomic Power Station.
Before acting-upon the application the. commission'must address a_ motion filed by the Natural Resources Defense Council, Union of.
Concerned Scientists, auui the Sierra' Club on February 13, 1978 requesting a public hearing by the Commission on that application.
On October 31, 1972.. petitioners filed the attached supplemental pleading..~1n support of its earlier motion.
j The following analysis outlines the procedural background, the petitioners' contentions, and the legal options available to the Commission.
Procedural Background On February 13, 1978, Petitioners filed motions with the Commission requesting that the Commission: (a) resume" the July 197.6 hearing it had granted to consider issues arising from the export of low-enriched uranium to India for use at the Tarapur' Atomic Power Station; and_.(b) that consideration of applications Nos. ISNM-1060 and XSNM-1222 be consolidated.
CONTACT:
~
Trip Rothschild 4-1465 781205oII9 g
.yer--h-c--
,,,,w,-
-~4-w-
t The Commission 2
On March 6, 1978 the Commission consolid'ated the two license applications.
. [CLI-78-4, 7 NRC 3113 On April
- 1978, the Commission voted 3 to deny the motion req.
ng a public hearing:with respect to XSNM-1060, and to defer action on whether a public hearing should be held on XSNM-1222 until Executive Branch views on the merits of that application had been received.
[CLI-78-9, 7 NRC 455]
On September 18, 1978 NRC-received the Executive Branch views recommending issuance of XSNM-1222.
Under Section 126(b) of the Atomic Energy Act the Commission has 120 days (until January 16, 1979) to act upon the application.
If the Commissicn has not completed action by that date the President, after making certain findings set forth in the Atomic Energy Act, may authorize the export by Executive Order.
This'120-day period for Commission action is extended if the Commission has submitted requests for additional information to,the Executive
- Branch during the first 60 days of its review (in this matter, until November
- 17) or if it orders procedures for public participation.
In such cases the Commission would have 60 days to act from the time it received the information requested from the Executive Branch or the public proceedings are completed.
Petitioner's% Contentions In their February 13, 1978 metion, petitioners stated'that public hearings should examine four topics:
(1) the need for fuel; (2) the implications of the 1976 SSIR report with respect to the adequacy of IAEA safeguards at Tarapur; (3) the adequacy of Indian Prime Minister Desai's assurances that "he will not authorize nuclear explosive devises or further nuclear explosions"; and (4) the status of U.S.
India negotiations to return spent fuel from Tarapur to the United States for storage.
I'n their October 31, 1978 supplemental pleading petitioners argue that the safeguards applied at Tarapur are not suffic-1ent to meet the minimum requirements set forth in Section 127 of the Atomic Energy Act.
Specifically, they allege that criterion 1 (IAEA safeguards) cannot be met until the INFCIRC/66/Rev.2 safeguards applied at Tarapur are replaced with INFCIRC/153 safeguards.
Petitioners further argue that the criterion is not met because the Commission is unable to make a reasoned determination as to the adequacy of the-implementation of IAEA safeguards at Tarapur.
. ~
j
4 The Commission' 3
Petitioners. recommend that the Commission order a public hearing focusing on the scope and depth of.information necessary to judge the. adequacy of lAEA safeguards - and.the implementation of IAEA safeguards at Tarapur.
Petitioners also suggest that the-hearing should address the question of the return of spent fuel from Tarapur noting-that the Execu-tive Branch does not mention this subject in its analysis of XSNM-1222.
Legal Options Available To.The Commission Petitioners here are not arg'uing that they are entitled to a hearing as a matter of right. 1/
Therefore, Commission action on the hearing request is governed by 10 CFR $'.110.84(a)..
That section provides that -the factors the Commission will consider in making its decision whether to hold a public hearing are (1).whether a~ hearing would'be in the public interest, and (2) whether a hearing would assist the-Commis-sien in making the statutory determinations required by the Atomic Energy Act.
Upon the affirmative vote of two Commis-sioners, a hearing will be ordered.
10 CFR 5 110.84(g).
The Commission here.has two basic hptions ---grant or deny _
the motion for public hearings.
The NRC staff will undoub-tedly address this issue in.itizsubmission to the Commission on XSNM-1222, which is expected in pid-November.
Under 10 CFR S 110.83(a) the Executive Branch has the opportunity to provide views on the hearing' question.
In the past, the Executive Branch has sometimes chosen'to address this issue, other times it has chosen to remain silent.
If the Commis-sion wishes tu receive Executive Branch views on the hearing question, it would probably be necessary to request them.
A.
Grant of the hearing reauest Should two Commissioners determine a hearing or other form of public participatipn would provide additional information, views-or analysis that would assist the Commission to make its statutory determinations, the Commission must select the format and establish-a time-table for such participation.
- 1/
The standing issue is no longer before the Commission.
l See NRDC v.
NRC, 580 F.2d 698'(D.C. Cir. 1978).
m-
The Commission 4
1.
Written Comments One option would be to solicit written comments.
10 CFR $
110.84.
The Commission would publish a Federal Register notice stating the issues that the Commission wished partici-pants to address and specifying a time limit for providing views.
In all likelihood the earliest the Commission could publish such an order would be. December 1.
OGC is informed that NRC staff expects to provide its views on XSNM-1222 in mid-November.
The Commission will undoubtedly wish to review these views before making its decision on whether a hearing should be held.
A Commission meeting could be scheduled the week of November 27.
Assuming that a 30-day comment period would be provided, it is unlikely the Commission could act upon XSNM-1222 before mid-January.
This period would be further extended if, after reviewing public comments, the Commission decided to order an oral hearing.
2.
Oral Hearing A second approach would be to order an oral hearing.
The full Commission has presided at past expor.t hearings, How-ever the Commission has the option'of appointing a hearing officer or board.
The Commission would be required to publish a Federal' reg"ister notice setting forth the issues it wishes participants to address, stating who will preside and setting a' hearing schedule.
If a written hearing were held, a-reasonable schedule might be approximately as follows:
12/1 Commission opinion ordering public hearing 12/15 FOIA petitions for discovery submitted by participants 1/2 -
Commission's FOIA response due 1/16 Public hearing held 1/30 Commission opinion issued This schedule could b'e shortened if staff submitted its views prior to November 15 This would permit the Commis-sion to schedule its meeting the week of November 20.
- Also, some tightening could occur if the Commission chose not to provide time for obtaining documents under the FOIA.
O GC- -
does not recommend this latter step, however, because it would appear to limit full public participation, without significant time savings.
~
.The. Commission-5 f
B.
Denial of the hearing reouest A possible basis.for denying the request would be that the issues raised by exports to Tarapur have been. fully ventilated in the July 1976 Commission hearings, and Congressional hearings on XSNM-1060.
NRDC testified at-the Congressional hearings, raising the same issues contained in their petition for hearing.
The Commission co.uld take.the position that the hearings would not pro-vide the. Commission additional pertinent information and therefore the hearing would not assist the Commission in making its statutory determ1' nations and accordingly would not be in the public interest.
If the Commission elects this course, the only= action required would be issuance of an order explaining its reasons for denying the hearing request.
This order could be contested,in the Court of Appeals; however, assuming the Commission's reasons for denial are fully stated, OGC believes,the likelihood of reversal is small.
Recommendation:
The Commission should schedule a meeting for late November to discuss and vote on the motion for further hearings.
This time schedu.le will' afford the Commission an opportunity to analyze the staff views before the meeting.
CL ' ;
Enclosure:
NRDC Submissions of February 13 and October 31 cc:
OPE SECT 4
- w e b
f
.,-a-
- .. ~, -
,.w..
n
-.e.
.,om,---m...
.,e.
i w e-o-
...,-4
.,+,%.
y,
+-e e
.vi..
r a-