ML20215D770

Order CLI-87-6.* Denies Petitioners Request for Formal Adjudicatory Procedures Re Applications to Import U Products of South African Origin.Public Hearing Consisting of Written Comments Will Be Held.Served on 870612

ML20215D770
Person / Time
Issue date:	06/12/1987
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:
References
CON-#287-3767 CLI-87-06, CLI-87-6, NUDOCS 8706190139
Download: ML20215D770 (7)

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-4 UNITED STATES OF AMERICA

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NUCLEAR REGULATORY COMMISSION C"'rrO a v.;

COMMISSIONERS:

Lando W.- Zech, Chairman

' E Al U A 2 Sd Thomas M. Roberts c r:,e -

James K. Asselstine 2%

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Frederick M. Bernthal ~

Kenneth M. Carr In the Matter of-Docket No. 11003919 BRAUNK0HLE TRANSPORT, USA License Application No. 1U-87001 -

(Import of South African UraniumOreConcentrate) l In the Matter of BRAUNK0HLE TRANSPORT, USA Docket No. 11003920 License Application (Importof.SouthAfrican No. 10-87002 ,

Natural Uranium Hexafluoride)

In the Matter of BRAUNKOHLE TRANSPORT, USA Docket No. 11003921 License Application (Import of South African No. 10-87003 ' '

Enriched Uranium Hexafluoride)

In the Matter of BRAUNK0HLE TRANSPORT, USA Docket No. 11003922 l License Application (Import of South African No. IV-87004 /

EnrichedUraniumHexafluoride) l l

In the Matter of ADVANCED NUCLEAR FUELS CORP. Docket No. 11003928 ,

License Application j (Import of South African No. ISNM-87005 f EnrichedUraniumHexafluoride)

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8706190139 PDR 870612 XPORT ISNM-987005 PDR d$

2 In the Matter of EDLOW INTERNATIONAL CO. Docket No. 11003929 License Application (Import of South African No. 10-87006 UraniumOreConcentrate)

In the Matter of EDLOW INTERNATIONAL C0. Docket No. 11003930 License Application (ImportofSouthAfrican No. 10-87007 UraniumHexafluoride)

In the Matter of '

1 EDLOW INTERNATIONAL CO. Docket No. 11003931 License Application ,

(Import of South African No. 10-87008 Enriched Uranium Hexafluoride) 1 ORDER CLI-87 6 On February 17, 1987 seven members of the United States House of  !

Representatives (Congressmen Ronald V. Dellums, Mervyn M. Dymally, j William H. Gray, III, Edward J. Markey, Charles B. Rangel, Bill Richardson and Howard Wolpe), The Oil Chemical and Atomic Workers International Union,1 1he l'

Nuclear Control Institute, American Committee 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 applications.

Each of the applicants seek authorization to import South Africa-origin 1

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A The Union subsequently withdrew from the proceeding.

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uranium in various forms. Petitioners seek intervention to argue that (1) the proposed imports, if authorized, would violate the Comprehensive Anti-ApartheidActof1986(P.L.No.99-440)(" Anti-ApartheidAct");(2)the proposed imports would be inimical to the common defense and security of the United States; (3) the proposed imports would violate the international legal obligationsoftheUnitedStateswithrespecttoNamibia,and(4)thatthe l license applications are deficient because they do not contain all of the information that is required under NRC regulations.  !

Petitioners' request that the Commission: (1)consolidatethe8 license l l

applications;(2)consolidateconsiderationoftheconsolidatedlicense applications with consideration of a petition that these same petitioners filed on February 17, 1987 asking the Commission to revoke 11 existing. i licenses that authorize the import of South African origin uranium; (3) grant .

1 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, 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 thst petitioners are not entitled to a hearing as a matter of right because they lack standing, and further asserted that the Commission should not hold o hearing as a matter of discretion.

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i The NRC staff also argued that petitioners were not entitled to a hearing as a matter of right and concluded that the circumstances did not necessitate the'  ;

granting of the hearing request as a matter of discretion. The staff noted, i however, that the Commission may wish to hold a hearing as a matter of l

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 determined that it need not resolve the issue whether petitioners are entitled to a hearing as a matter of right.- This.is because the Commission has concluded that it would be appropriate to order further public proceedings in this matter and admit petitioners as parties. The Commission has determined 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. 5110.84 (a)(1) and(a)(2).

In light of this decision to hold further public proceedings, the request 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. 0 110.84(c)(2).

The Commission denies petitioners' request that the proceeding be conduct <!d using formal adjudicatory procedures. Such procedures are not provided for in the Commission's regulations set forth in 10 C.F.R. Part 110.

In promulgating those regulations the Commission made the determination that export and import license applications frequently involve sensitive foreign

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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 fomal 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 fomal adjudicatory procedures such as cross-examination.

Accordingly, pursuant-to 10 C.F.R.6 110.85, the hearing will consist of written comments. 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 coments responding to the views of other participants by July'28, 1987.

There-will be no discovery, but to assist commenters, the NRC staff already has placed documents that it believes to be' pertinent to these applications in the Comission's Public Document Room. All coments received l

by the Commission in response to this order will also be placed in the Public Document Room where they will be available for inspection and copying.

Although participants may address any issue they believe to be relevant to Commission consideration of the import license applications, the Commission 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

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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 Commission is also interested in views regarding what constitutes " substantial transformation" 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 comment. This consolidation does not bar the Commission from acting on the license applications separately at a later date as the issues raised by each  !

application vary. The Commission is not consolidating consideration of these applications with consideration of petitioners' motion to revoke the eleven j existing licenses which authorize the import of South Africa-origin uranium.

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N-7 That request is being handled separately because the legal framework '

for acting on initial applications differs from that with respect'to'the revocation requests.

ItissggRDERED.

cf a qortheCommission*

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'o SAMUEL )J. CHILK 49 # i' Secretary bf the Commission i Dated at Washington, 0.C.,

this h/ day _of June, 1987.

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• Commissioner Bernthal was absent when this Order was affirmed.

If Commissioner Bernthal had been present, he would have approved it.