View source for CLI-87-06, Discusses Commission 870612 Order CLI-87-06 Granting Discretionary Hearing on Eight Pending Applications for Licenses to Import U from South Africa.Any Participant in Hearing May Submit Reply Comments by 870728

{{Adams
| number = ML20235N184
| issue date = 06/18/1987
| title = Discusses Commission 870612 Order CLI-87-06 Granting Discretionary Hearing on Eight Pending Applications for Licenses to Import U from South Africa.Any Participant in Hearing May Submit Reply Comments by 870728
| author name = Murray J
| author affiliation = NRC OFFICE OF THE GENERAL COUNSEL (OGC)
| addressee name = Denton H
| addressee affiliation = NRC OFFICE OF GOVERNMENTAL &amp; PUBLIC AFFAIRS (GPA)
| docket = 
| license number = 
| contact person = 
| case reference number = FOIA-87-288
| document report number = CLI-87-06, CLI-87-6, NUDOCS 8707170463
| package number = ML20235N013
| document type = INTERNAL OR EXTERNAL MEMORANDUM, MEMORANDUMS-CORRESPONDENCE
| page count = 1
}}

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                                                                                  '(   ,W d;1 MEMORANDUM FOR:         Harold R. Denton, Director                  g.N                4        1--
Office of Governmental and Public Affairs FROM:                   James P. Murray Deputy General Counsel

==SUBJECT:==
COMMISSION ORDER GRANTING HEARING ON SOUTH AFRICAN IMPORT LICENSE APPLICATIONS By an order dated June 12, 1987 ( C LI-87-6 ) , the Commission granted a discretionary hearing on the elobt pending applications for licenses to import uranium from South Africa. The Commission rejected petitioners' request that                         ,
the hearing be conducted using formal adjudicatory procedures and ordered,                           !
Instead, that the hearing will consist of written comments.          The ' Commission posed four questions related to the intent of Congress in enacting the Anti-Apartheid Act and solicited responses from the Executive Branch, the petitioners, the applicants, and any other members of the public by July 13, 1987. The Commission also provided that the persons responding may address any other issue they consider relevant to consideration of the applications.
In order to provide members of the public with an opportunity to file comments the Commission is publishing in the Federal Register a Solicitation of Public Comments. Any participant in the hearing may submit reply comments by July 28, 1987. The order does not appear to envision a filing of an initial                       1 response by the Staff, but the Staff would have the opportunity to file a reply to the comments of the participants.
The Commission consolidated its consideration of the eight applications, but this consolidation is for the sole purpose of receiving public comments.         The Commission. reserved the right to act separately on the applications.            The Commission also declined to consolidate this hearing with the Commission's consideration of petitioners' motion to revoke the eleven existing licenses authorizing the import of South African origin uranium, since the legal framework for acting on the applications and the motion are different.                                 i f
if you have any questions regarding this matter, please contact               Josephf Rutberg or Stephen Lewis.       _A,,s comments are received, they will assure that /
GPA/IP receives copies for review, 1
James P. Murray         }
f       Deputy General Counsel
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==Enclosure:==
CLI-87-6 I
cc w/ encl: Victor Stello, Jr.
G707170463 070715                                                                                           i PDR       FOIA                                                                             q TROSTEN87-280         PDR l

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:   -                                                        UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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COMMISSIONERS:
Lando W. Zech, Chairman
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Thomas M. Roberts                                       ?,7.
James K. Asselstine                                     --
Frederick M. Bernthal                                                                ~
Kenneth M. Carr In the Matter of Docket No. 11003919 BRAUNKOHLE TRANSPORT, USA                  License Application No. 10-87001 (ImportofSouthAfrican'                )
Uranium Ore Concentrate)
In the Matter of BRAUNKOHLE TRANSPORT, USA                  Docket No. 11003920 License Application (Import of South African                  No. IU-87002 Natural Uranium Hexafluoride)
In the Matter of BRAUNKOHLE TRANSPORT, USA                 Docket No. 11003921 License Application (Import of South African                 No. 10-87003 Enriched Uraniura Hexafluoride)
In the Matter of                       .
BRAUNKOHLE TRANSPORT, USA                Docket No. 11003922 License Application (Import of South African                 No. 1U-87004 Enriched Uranium Hexafluoride)
In the Matter of ADVANCED NUCLEAR FUELS CORP.              Docket No. 11003928 License Application (Import of South African                 No. ISNM-87005 EnrichedUraniumHexafluoride)
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EDLOW INTERNATIONAL CO.                                     Docket No. 11003929 License Application                                    q (ImportofSouthAfrican                                       No. 10-87006         .
Uranium Ore Concentrate) i L                                                                                 )
In the Matter of EDLOW INTERNATIONAL CO.                                     Docket No. 11003930 License Application (Import of South African                                    No. 1U-87007 Uranium Hexafluoride)
In the Matter of EDLOW INTERNATIONAL CO.                                     Docket No. 11003931 License Application (Import of South African                                    No. 10-87008                                         '
l Enriched Uranium Hexafluoride)                         )
ORDER CLI-87 6 On February 17, 1987 seven members of the United States House of Representatives (Congressmen Ronald V. Dellums, Mervyn M. Dymally, William H. Gray, III, Edward J. Markey, Charles B. Rangel, Bill Richardson and Howard Wolpe), The Oil Chemical and Atomic Workers International Union,I The Nuclear Control Institute, American Comittee on Africa, Transafrica, Inc.,
and the Washington Office of Africa filed a Petition for Leave to Intervene and Request for Hearing on the above-captioned import license applicatic,ns.
Each of the applicants seek authorization to import South Africa-origin I The Union subsequently withdrew from the proceeding.
h__._____.._.___-.             _ _ _ . . _ . _ _ _ _ _ _ . _ _

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3 uranium in various fonns. Petitioners seek intervention to argue that (1) the proposed imports, if authorized, would violate the Comprehensive Anti-Apartheid Act of 1986 (P.L. No. 99-440) (" Anti-Apartheid Act"); (2) the l                        proposed imports would be inimical to the comon defense and security of the United States; (3) the proposed imports would violate the international legal obligations of the United States with respect to Namibia, and (4) that the license applications are deficient because they do not contain all of the information that is required under NRC regulations.
Petitioners request that the Comission: (1) consolidate the 8 license applications; (2) consolidate consideration of the consolidated license applications with consideration of a petition that these same petitioners filed on February 17, 1987 asking the Comission to revoke 11 existing licenses that authorize the import of South African origin uranium; (3) grant petitioners a hearing as a matter of right on the consolidated applications and revocation request; and, (4) hold a formal adjudicatory public hearing at which interested parties, after engaging in discovery, may present oral and written testimony and conduct cross-examination of witnesses.
After the period for filing intervention petitions had expired, I
petitioners requested that their petition be amended to include three new parties--Robert L. Chavez, New Mexico State Senator Carlos Cisneros, and Henry Issacs.
The only applicant to respond to the intervention petition was Advanced Nuclear Fuel. It argued that petitioners are not entitled to a hearing as a matter of right because they lack standing, and further asserted that the Comission should not hold a hearing as a matter of discretion.

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i 4                                     j The NRC staff also argued that petitioners were not entitled to a hearing as a   i matter of right and concluded that the circumstances did not necessitate the     i i
granting of the hearing request as a matter of discretion. The staff noted, however, that the Commission may wish to hold a hearing as a matter of discretion. The staff asserted that should the Comission decide to hold a hearing, it should not be conducted using formal adjudicatory procedures.
Staff opposed consolidation of the pending applications with consideration of the license revocation petition filed by petitioners.
After reviewing these submissions, the Comission has detemined that it need not resolve the issue whether petitioners are entitled to a hearing as a matter of right. This is because the Comission has concluded that it would be appropriate to order further public proceedings in this matter and admit petitioners as parties. The Comission has detennined that such proceedings would assist it in making the statutory determinations required by the Atomic Energy Act and would be in the public interest. See 10 C.F.R. 6 110.84 (a)(1) and (a)(2).
I In light of this decision to hold further public proceedings, the request l of petitioners to add the three additional parties to their petition is granted. Although their request to intervene was untimely, the grant of this motion would not broaden the scope of the proceeding or delay action on the applications. See 10 C.F.R. 9 110.84(c)(2).
The Comission denies petitioners' request that the proceeding be 1
conducted using formal adjudicatory procedures. Such procedures are not provided for in the Comission's regulations set forth in 10 C.F.R. Part 110.
In promulgating those regulations the Comission made the determination that export and import license applications frequently involve sensitive foreign l

5
                              - policy and national defense considerations and that resolution of such concerns through the use of formal adjudicatory procedures is inappropriate.
This certainly is the case here. Use of formal adjudicatory procedures is particularly inappropriate here because the major issues facing the Commission are legal questions regarding what is the scope of the uranium import bar contained in the Anti-Apartheid Act. Legal issues traditionally are resolved through written pleadings, not through use of fonnal adjudicatory procedures such as cross-examination.
Accordingly, pursuant to 10 C.F.R.5 110.85, the hearing will consist of written coments. The Executive Branch, petitioners, applicants, and any other member of the public are invited to submit written coments on the issues raised by the license applications by July 13, 1987. Any participant may submit reply comments responding to the views of other participants by
                               . July 28, 1987.
There will be no discovery, but to assist comenters, the NRC staff already has placed documents that it believes to be pertinent to these applications in the Comission's Public Document Room. All comments received by the Commission in response to this order will also be placed in the Public  j Document Room where they will be available for inspection and copying.
Although participants may address any issue they believe to be relevant to Comission consideration of the import license applications, the Comission is particularly interested in receiving detailed legal analysis based on a review of the legislative history of the Anti-Apartheid Act on the following questions: (1) Did Congress bar only the import of uranium ore and uranium oxide, or did Congress intend to bar all forms of uranium?; (2) Does the

6 import bar cover imported uranium regardless of its intended end use, or does it only bar the import of uranium which will be used domestically and not re-exported?; (3) Did Congress bar South Africa-origin uranium ore and uranium oxide which has been "substantially transformed" into another form of uranium in countries other than South Africa or the United States?. The Comission is -
also interested in views regarding what constitutes " substantial transfonnation" of uranium ore or uranium oxide; (4) Did Congress assign to the Executive Branch, or to the NRC, or to both the responsibility for interpreting the scope of Section 309(a) of the Anti-Apartheid Act and for implementing that section?
With regard to petitioners' consolidation requests, the Commission is consolidating the eight applications for the sole purpose of receiving public coment. This consolidation does not bar the Comission from acting on the                                   ,
license applications separately at a later date as the issues raised by each application vary. The Comission is not consolidating consideration of these applications with consideration of petitioners' motion to revoke the eleven existing licenses which authorize the import of South Africa-origin uranium.
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That request is being handled separately because the' legal framework for acting on initial applications differs from that with respect to the
!         revocation requests.
It is               ,0RDERED.
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J SAMUEL
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JJ. CHILK
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Secretary.bf the Commission Dated at Washington, D.C.,
this    i7"tl day of June, 1987.
* Commissioner Bernthal was absent when this Order was affirmed.
If Commissioner Bernthal had been present, he would have approved                                                      I it.
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UNITED STATES OF AMERICA             ,I
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NUCLEAR REGULATORY COMMISSION BRAUNKOHLE TRANSPORT, USA           0FrtcE          . ..
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Docket No. 11003919 SOLICITATION OF PUBLIC COMMENTS ON LICENSE                           I APPLICATIONS SEEKING AUTHORIZATION TO IMPORT       SERVED JUN 121987 URANIUM FROM SOUTH AFRICA On June 11, 1987, the Nuclear Regulatory Comission issued an               I Order, which is appended to this Notice, inviting the parties to the Commission proceeding as well as members of the public to comment on issues           ;
I raised by eight license applications. These applications, if granted,                 I would authorize the import of uranium of South African-origin into the                j United States. The initial round of public coments are to be submitted to the Commission by July 13, 1987. All coments will be placed in the Comission's Public Document Room. Reply coments are to be submitted by July 28, 1987. All coment! are to be mailed to the Secretary of the Comission, U.S. Nuclear Regulatory Comission, Washington, D.C.         20555, Attention: Docketing and Service Branch, or delivered to 1717 H Street, N.W., Washington, D.C., Room 1121 between 8:15 AM and 5 PM, weekdays.
Issued at Washington, D.C.
this (*t*. day of June, 1987.
For the Nuclear Regulatory Comission, f
i C   J'EuL C
                                                        " 3amuel J. Chilk M       ~
Secretary of thh Commission l
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