ML20248D703
| ML20248D703 | |
| Person / Time | |
|---|---|
| Site: | 07000036 |
| Issue date: | 06/30/1989 |
| From: | Bauser M ABB COMBUSTION ENGINEERING NUCLEAR FUEL (FORMERLY, NEWMAN & HOLTZINGER |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20246Q328 | List: |
| References | |
| MLA, NUDOCS 8908110115 | |
| Download: ML20248D703 (6) | |
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UNITED-STATES CF AMERICA NUCLEAR: REGULATORY COMMISSION
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In the. Matter of
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. COMBUSTION. ENGINEERING, INC.
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Docket No. 70-36
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(Hematite Fuel: Fabrication
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Facility, Special
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Nuclear Materials
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License No. SNM-33)'
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~ APPLICANT'S ANSWER TO SEN3 TOR NIXON'S MEMORANDUM I.
INTRODUCTION On May 24,.1989, a notice was published by the Nuclear Regulatory Commission ("NRC" or " Commission") in the Federal Register stating that the Commissien is considering amendment of the special nuclear. materials license of Combustion Engineering
("C-E" c." " Applicant") for its activities in Hematite, Missouri.
54 Fed. Reg. 22,510.
The notice announced that the Commission had prepared an Environmental Assessment related to the proposed amendment, and arrived at a " Finding of No Significant Impact" to j
i the environment.
54 Fed. Reg. at 22,511.
The notice also j
provided that:
I Any person whose interest may be affected by the issuance of this amendment may file a request for hearing.
Any request for hearing must be filed with the Executive Director for Operations, U.S. Nuclear Regulatory Commission, Washington, D.C.
20555, within 30 days of the publication of this notice in the Federal Register, and must comply with the procedures set forth in the Commission's regulations, 10 CFR Part j
2, Subpart L,
" Informal Hearing Procedures for 3
Adjudications in Materials Licensing Proceedings."
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~2-l Id.
Applicant has received a copy of a " Memorandum" dated June 19, 1989 1/ from a Missouri State Senator, Jeremiah W.
Nixon, to the NRC Executive Director for Operations concerning the proposed expansion of the Hematite plant.
To the extent that the Memorandum might be considered a request'for En adjudication, it fails to meet the minimal requirements established by the Commission for such a pleading and should be rejected.
- Further, even if judged to be marginally accepgable as a hearing request, the Memorandum fails to satisfy the requirements for convening such a proceeding.
II.
ANALYSIS A.
Requirements for Hearing Requests As prescribed in NRC regulations, a request for a hearing
. must describe in detail--
(1) The interest of the requestor in the proceeding; (2) How that interest may be affected by the results of the proceeding, including l
the reasons why the requestor should be l
perruzted a hearing, with particular reference to the factors set out in paragraph (g) of this section [ pertaining to standing);
(3) The requestor's areas of concern about the licensing activity that is the subject matter of the proceeding.
10 C.F.R. S 2.1205(d).
As explained in the statement of considerations accompanying adoption of this provision, the 1/
The second page of the Memorandum bears the date of June 21, 1989.
I
. specification of concerns must be sufficient to establish "the issues the requestor wants to raisa regarding the licensing action."
54 Fed. Reg. 8269, 8272.
Although the Memorandum asks that a public hearing be held, it fails to meet the foregoing basic requirements for a hearing request and, in fact, makes no attempt to do so.
Beyond simply indicating that Senator Nixon represents "the area where Combustion Engineering is located," the Memorandum provides no indication of interest or standing.
M,oreover, the Memorandum does not'specify any areas of concern; it merely poses 11
. questions.
No issues are raised, and no attempt is made at placing any matter in controversy.
In fact, the Memorandum's failure to meet the fundamental legal requirements of a request for hearing under 10 C.F.R. Part 2, Subpart L is not inconsistent with the basic nature of the document.
On its face, the Memorandum is not so much a request for a hearing, as a request for information.
In general, the subjects raised in the questions presented on the second page of the Memorandum have already been addressed in the docket.
In addition to the foregoing, a request for a hearing must be filed with the Office of the Secretary.
10 C.F.R. S.
2.1203(b).
The Memorandum, however, is addressed to the NRC Executive Director for Operations, and does not appear to have been sent to the Secretary.
Further, the regulations require
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t H that a hearing request bezsigned, and designate the name and address ofLthe person upon whom service can be made.
10 C.F.R. S 2.1203(c).
From the copy sent to C-E, it appears that the Memorandum.is unsigned'and lacks the required designation.
In sum, theLMemorandum fails to comply with the minimum requirements for a hearing request.
Accordingly, if the Memorandum has been received by the Office of the Secretary,-it should'be rejected pursuant to 10 C.F.R. $$ 2.1261 and 2.772(i).
B.
Requirements for Convening a Hearing Even if the Memorandum is not rejscted as a hearing request, it fails to satf.sfy the pertinent requirements necessary for convening such a proceeding.
The Commission's regulations require that a person requesting a hearing demonstrate that
~" judicial standards for standing" have been satisfied.
10 C.F.R.
$ 2.1205(g).
In promulgating the procedures that govern the
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informal hearing requirements in materials licensing proceedings, the Commission explicitly rejected a rule of standing based on
-the proximity to the facility in question (i a, a " fifty-mila radius"'or a "five-mile radius" rule).
54 Fed. Reg. 8269, 8272.
"The standing of a petitioner in each case should be determined based upon the circumstances of that case.
" Id.
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l l.
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The following factors are considered when ruling on standing
~(1)
The nature of the requestor's right under the
[ Atomic Energy) Act'to be made a party to the proceeding;
("i )
rhe nature and extent of the requestor's property, financial, or other interest in the proceeding; and (3)
The possioie effect of any order that may be entered in the proceeding upon the requestor's interest.
10 C.F.R. S 2.1205(g).
Senator Nixon has not demonstrated any property, financial, or other interest that could be affected by the proposed licensing action.
The Memorandum fails to address any of the factors detailed in 10 C.F.R S 2.1205(g).
Senator Nixon claims only that he " represent (s) the area where Combustion Engineering is located.
This interest is not sufficient to establish standing.
Cf General Electric Co. (GE Test Reactor, Vallecitos Nuclear Center) LBP-79-2R. 10 NRC 578, 581-83
.(1979) (a United States Congressman's representation of the interests of his constituents would not provide standing to
- -' e m er.9 in a proceeding as a matter of right absent an e13egation of personal injury in fact).
In addition, the grant of a hearing must be based on an adequate identification of concerns.
10 C.F.R. $ 1205(d).
As discussed in section II.A, however, the Memorandum falls far short of the required standard.
Because the Memorandum fails to establish either Senator Nixon's legal standing, or the
L. ' ~
l particular issues he wi~shes to litigate, it does not provide the.
necessary basis for convening a hearing.
Respectfully submitted, Maurice Axelr'ad Michael A. Bauser-Newman & Holtzinger, P.C.
1615 L Street, N.W.
Washingtoq, D.C.
20036 Telephon'er (202) 955-6600 C A'sel for Ccmbustiort Fagineering, Inn.
^Date:
June 30, 1989
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