ML19207B784

Transcript of NRC 790712 Public Meeting in Washington,Dc to Discuss Procedures to Govern Further Proceedings Re Restart of TMI-1.Pp 1-53

ML19207B784
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Site:	Crane
Issue date:	07/12/1979
From:	Gilinsky V, Hendrie J, Kennedy R NRC COMMISSION (OCM)
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ML19207B785	List: ML19207B784 ML19207B790 ML19207B800 ML19207B804
References
REF-10CFR9.7 NUDOCS 7909050269
Download: ML19207B784 (54)

Text

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, ^! f nu-NUCLEAR REGULATOR 4 MISSION f 50 - 29

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/ o c P R c7 7 IN THE M ATTER OF:

PUBLIC MEETING INITIAL DISCUSSION OF PROCEDURES TO GOVERN FURTHER PROCEEDINGS I'N RESTART OF TMI-1

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W a s h i ng :o rt,_ D. c.

Date -

Thur sday,.12 J uly 1979-Fages 1 - 53

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ACE-FEDERAL REPORTERS. INC.

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NATICNWIC E COVERAGE - D All.Y i90905Og7(af

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DISCLADIER This is an unofficial transcript of a meeting of the United States Nuclear Regulatory C = ission held on Thursday, 12 July 1979 in the Conrnissions 's of fices at 1717 H Streer, :!. W.,

Washington, D.

C.

The.

meeting was cpen to public attendance and observation.

This transcript has not been reviewed, corrected, or edited, and it may contain inaccuracies.

The transcript is intended solely for general informational purposes.

As prcvided by 10 CFR 9 103, it is not part of the formal or informal record of decision of the matters discussed.

Expressions of opinion in this transcript do not necessarily reflect final determinations or beliefs.

No pleading or other paper may be filed with the Comission in any proceeding as the result of or add'ressed to any statement or argument contained herein, except as the Commission may authorize.

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1 UNITED STATES OF AMERICA 2l NUCLEAR REGULATORY CCMMISSION i

3, PUBLIC MEETING 4l 1

5; INITIAL DISCUSSION OF PRCCEDURES TO GOVERN FURTHER PROCEEDINGS IN RESTART OF TMI-l 6l l

7' Room 1130 1717 H Street, N.W.

8 Washington, D.

C.

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Thursday, 12 July 19 l

10 The Commission met, pursuant to notice, at 10:30 a.m.

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BEFORE:

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DR. JOSEPH M.

HENDRIE, Chairman VICTOR GILINSKY, Commissioner l

r 13 i RICHARD T.

KENNEDY, Commissioner l

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PETER A.

B RADFORD, Commissioner j

14 l JCHN F.

AHEARNE, Commissioner j

15 l ALSO PRESENT:

16 Messrs. Shapar, Gossick, Ostrach, Bickwit, Hoyle, Case, 17 j and Cunningham.

18 19 20 l

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CHAIRMAN EENDRIE:

The Commission will turn now j

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to a discussion of procedures to_ cover for the proceecings in I

3 the matter of TMI-1, Three Mile Island Unit 1.

So I would i

ask those people concerned with the new matter to come forward, l 4 i l

5 those people who are not concerned to recede from the table, i

l 6' and I would ask the rest of the rcom to collect itself and I

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sit down.

l 8,

On this matter, the discussion of the procecures in i

i 9

the Three Mile Unit 1 suspension proceeding flow from an 1

10 I order of the Commission, of a week dr two ago, which said l

l Il simply noted that Unit I had been shut dcwn since the i

12 accident in Unit 2; confirmec that shutdcwn condition until I

13 !

further order of the Ccmmission; noted that the elements l

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Id to be considered in restarting Unit 1 would be a matter of a

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later Commission order.

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16 l Let's see.

It was noticed that hearing could be 17 requested by parties, but the time for filing such requests i

18 would run, I believe, 20 days from the issuance of the further 19 order.

20 Ncw, the further order I have proposed that we i

21 discuss in two parts.

"irst, what I have called the 22 technical elements connected with the restart.

The NRR staff 23 13 presumably working on these, and has projected thar they 24 will have them up to us on the 20th.

And I have filed an ACS IH3eral atOOr*gr1, tric.

25 urging, I guess I would call it, that a little earlier ccming y!i td.()o

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forward with those things would be helpful to the Commission.

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The other part of the further order has to do with I'

3 the procedures that would be used in a hearing on TMI-1.

We 1

4 have mandated such a hearing in the first order, and we have i

1 5

also mandated that the ultimate decision would be the I

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Commission's.

7i At the earlier discussion I had asked the assorted a

legal talents of the agency to provide us with some discussion i

9' and options with regard to the procedural side of the further 10 order.

And I guess there have been discussions back and forth.,

i 11 I am not sure whether the Executive Legal Director was 12 successful in taking the lead, or whether the General Counsel i

13 ;

was successful in not taking the lead.

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14,

In any event, l

15 MR. SHAPAR:

It was a failure en my part.

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16,

CHAIBMAN HENDRIE:

In any event, we have some i

17 recommendations in hand from Howard Shapar; and I guess, Len, la that your office has discussed these.

19 MR. SICKWIT:

We have had discussions and given 20 comments,which in all cases have been accepted.

21 CHAIRMAN HENDRIE:

Since Ecward produced the paper, 22 why don't I ask him to take us through it, and outline the 22 things he has here for us to talk about.

24 MR. SHAP AR:

Mr. Chairman, I believe you said in Ace Fe2efst 4ecorters, nc.

25 your preliminary remarks that 20 days were given :: members of h

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the public to intervene.

I believe the 20 days in the original 2;

order was limited to the licensee's arswer.

And one of the 3

points that I am going to be discussing this morning is how l

4 much time you should provide for members of the public to i

5, intervene, i

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CHARIMAN HENDRIE:

Howard, I cheerfully retreat frcm i

7i any assertions I may have made from faulty memory a minute I

B ago.

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9 MR. SHAPAR:

Okay.

There are a number of options 10 dealing with the procedural and juristictional points.

11 One of the main cptions for decision areas relates i

12 to who is going to conduct the hearing.

And I think the 4

I 13 i options are a hearing board, a licensing hearing board, the I

14 l Commission itself, if it wants to.

I always put that option i

15 in there.

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COMMISSIONER AHEARNE:

You always had in that comment >

i 17 "if it wants to" but your incredulousness is somewhat 4

18,

decreasing.

19 MR. SEAPAR:

Right.

One or more Ccmmissioners, 20.

short of the Commission; the appeal board can conduct a 21 hearing; an administrative law judge could conduct a hearing.

22 That's just to give you, initially, the full range of options.

23 The Administrative Procedure Act dces recuire chan 24 the presiding officer, in other words, whcever conducts the w.casi secomn. inc.

25 hearing in adjudica: cry proceedings like this, to render an bl j

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initial or recommended decision, 2

Now, there's an exception for that for initial i

3-licensing,. cut this, in my opinion, is not initial licensing.

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4 So if a board or an administrative law judge presides a*

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5 a hearing, he must submit an initial or recommended decision.

6-Okay.

Following from those premises, I guess there i

1 7l are certain obvious options.

Now, one option would be the i

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usual structure; namely, an Atcmic Safety and Licensing Board i

9 appeal has a right to the appeal board, and a cert type of i

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procedure, if somebody wants to go beyond the appeal board to 11 the Commission.

12 COMMISSICNER AHEARNE:

Do I read your paper correctly, i

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that in order for the appeal board to be in that process, we I

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would have to specifically authorize it?

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MR. SHAPAR:

Yes.

As I recall the rules, the appeal 1,6 board is in the picture if it is a proceeding under Part 50.

17 l But this is not a licensing under Part 50.

It's an enforcement i

la proceeding under Part 2.

19 l It is a technical point, but if you wanted to use i

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the appeal board you would simply say so.

21 COMMISSIONER GILINSKY:

We could presumably appoint 22 a special board cutside of those panels; couldn't we?

23 MR. SHAPAR:

Well, I think you have to use an 24 administrative law judge, or use your authcrity under the A@ES3ef al atDQrt9ft, IFC.

25 Atomic Energy Act to use scme sert cf board that you would call

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an Ator.iic Safety and Licensing Board.

2l MR. OSTRACH:

It doesn't have to be composed of board panel members.

i MR. SHAPAR:

That's right.

It can go outside, 4;

Si as far as expanding the panel.

I think you' d have to use 6

either an administrative law judge, or what you would cal; an i

7-Atomic Safety and Licensing Board.

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g, COMMISSIONER AHEARNE:

Is there any constraint on 94 issuing merely a formality that af ter having constructed such i

10 a panel you would then call it an Atomic Safety and Licensing i

11 Board?

Is there anything more to it than that?

i 12 MR. SHAPAR:

Well, without the,special authority i

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that you have in the Atomic Energy Act, you would have to use l

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an administrative law judge.

15 One departure that you have under the Atomic Energy 16 Act, apart from that requirement of the APA, is authority to 17 use atomic safety and licensing boards.

la COMMISSICNER AHEARNE:

My question is:

is there 19 anything more to it than -- let us say we decide that these 20 X pecple are the ones that we wanted to use.

Is there anything 21 more to it than saying, "And we designate them an Atomic Safety - "

23 MR. SEAPAR:

I think that would do it.

I guess there 24 might be a question abcut what the regulations say abcut the AC9-8*def31 ASCNe ttri, IrlC.

25 use of the panel.

But I would think 1: cculd be werked out.

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All right.

That would be the first option.

The 2l procedures you are all accustomed to in proceedings of 3 ',

licensing enforcement cases, and always have been.

Although 4

I should qualify that last remark by saying in enforcement j

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5 actions you have used an administrative law judge rather than i

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a three-man board.

And, as I indicated, you have the option.

7l A second option, and the one I would recommend, is i

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8' a direct appeal from a hearing board; and not using l

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an appeal board.

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10 COMMISSIONER AHEARNE:

Not forming a hearing board?

11 MR. SHAPAR:

Yes.

There would be direct review 12 by the Commission. The Commission has already indicated in t

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the first order it would make its final decision in this case.

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And this would comport with that premise.

14 l 15,

COMMISSIONER AHEARNE:

In your recommendation, do you i

16 l come down either on recommendation or initial decision?

I 17 :

MR. SHAPAR:

I would recommend an initial decision.

t la It would give you a little more flexibility, I think, in terms 19 of having the issues narrowed.

20 CCMMISSIONER AHEARNE:

And what issues you have to 21 review?

22 MR. SEAPAR:

That's right.

This would save about 23 two and a half T.onths, by the way, from the first opticn.

24 And I'll spend some time on time later on, if you would like Ace Feceral Recor+ers, Inc.

25 me to.

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ros 7 li COMMISSICNER AHEARNE:

Yes.

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MR. SHAPAR:

The third option is that you could i

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use the appeal board, members of the apceal board canel, i

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designate them as the Atomic Safety and Licensing Board, or i

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5, a combination of both.

I threw it in just to complete it.

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am not reccmmending it.

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i 7)i If anyone would like more discussion on it, I would I

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he pleased to provide it.

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COMMISSIONER AHEARNE:

I think Victor's point was i

10 :

you can appoint anybcdy on it.

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11 MR. SHAPAR:

That's right.

12 The fourth option would be to have one or more i

C 5876 13 Commissionars, short of the whole Ccmmission, to preside.

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COMMISSIONER:

Would that, in any way, effect the i

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e end 46 15 l ability of those Cctmissioners to then sit in review of that?

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a76 07 01 10 kap 1

MR. SHAPAR:

I would think so, I would think it 2

wo uld.

3 COMMISSIONER AHEARNE:

So you might preclude that 4

sort of --

5 MR. SHAPAR:

I really havene't studied that one.

6 I might want to look into it a li ttle more seriously, 7

because my basic f eeling would be that it should be a

precluced.

9 MR. BICKNIT:

tie looked at the rules on this 10 quickly.

I wouldn't want to make the judgment -- bu t my Il ten ta tive judgement would be the other way.

The 12 Commissioner culd sit i n --

13 COMMISSIONER AHEARNE:

Sit both places?

14 MR. BIC:qWIT:

Yes.

15 COMMISSIONER BRACFORD:

There are commi ssions, 16 five-member commissions which work on three member panel, 17 and the other two don't participate unie ss the three split la two-to -o n e, and then the entire commission reviews it.

That 19 is no t uncer f ederal law.

2g liR. SEAPAR:

It =ay be a question of optios more than law.

21 There is one point which I re served in my paper.

I was not 22 sure casec on the time I hac to do this pa per whenner or no t 23 i'f you wanted to use one commissioner or more short of the 24 whole commission whetner or not he can certify the record to 25 the o the r, the f ull commi ssion or tne o ther commi ssioners as IP

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676 07'02 11 kap 1

the case may be without a recommenced or initial decision.

2 I'm just no; sure of my grounc on that po in t, w he t he r t ha t 3

woulc be pe rmi tt e d.

If this is an option :nat appeals even 4

initially to any of you, I could go aheaa anc co the 5

research and come down on it one way or the other.

But it's 6

limited, my re servation is limited to whether or not an 7

initial or recommended decision is required in the case of 5

one or more commissioners short of a whole commission 9

si tting.

10 The final --

Il CHAIRMAN HENDRIE:

I don't perceive a great 12 grouncswell of enthusiasm f or thi s ac tion..

The 13 commissioners can always raise questions anc discuss further 14 so I would su gge s t you mo ve on.

15 MR.-SHAPAR:

I'll move on to -- then to the 16 commi ssion itself, if I may, and tha t is the last of the 17 ma jor options.

le COMMISS IONER AHEARNE:

Can you do it with a 19 straight face?

20 MR. SHAPAR:

Having been he re ye sterday, I can do 21 it with a straight f ace.

22

( La ughte r. )

23 MR. SHAPAR:

The commission itself could hold the 24 hearing and issue a final decision which would ce the f inal 25 agency cecision.

Tho se are the main ootions and I ha ve

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676 07 03 12 kap 1

s ta tec my --

2 COMMISSIONER KENNEDY:

2eviewable at that point only 3

in cour;.

4 MR. SHAPAR:

I guess a decision you would issue 5

woulc be a final agency decision and the next ste p would be 6

the courts?

7 COMMISSIONER AHEARNE:

And any of these procedures meet e

APA's requirements?

9 MR. SHAPAR:

Yes.

10 CHAIRMAN HENDRIE:

I must say to make a personal li comment en these options before you go on to scme of the 12 o ther ma tte rs in the paper, it seems to me frca your paper 13 and f rem my understancing of the general situation, that L4 rather unlike the prc posi tion discu ssed yesterday about the

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15 commission possibly hearing -- receiving ccmments on waste, 16 permanenc waste disposal matters, and then po ssibly or 17 probably hearing parties directly in a rulemaking context le that this proceeding is one which needs to be conducted 19 a ccording to these regulations, and is 'one which will be a 2C f ull adjudica tion by which, in my layman's way, I mean with 21 all of the cus:cmary aspec ts of discovery anc 22 cro ss-e xamina tion and all scr:s of motions filed and so on.

23 It seems to me that the commission is not well 24 constituted witn the sole exception of Peter in view of past 25 experience to ceal with presicing over the cor: of

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S76 C7 J4 13 gap i

proceecing tnat TMI will be, and I have no hesitation as I 2

had before in commenting on my own doubts, in fact, about 3

being aole to acequately run ana control tha t kind of a

p ro c eeding.

So I must say for myself I will lean very 5

stronly to the estaclishment of a licensing board in the 6

normal way that we do things.

7 I think that board will also have to be an expert 6

one in the sense tha t it is not -- they are not people who 9

are unf amiliar with atomic energy, with all of the 10 commission's regulations and the way adjudications are managec.

12 COMMISSIONER KENNEDY:

Lest silence be taken as 13 assant, let me note that whereas I do agree with the la conclusion of the chairman as to the probable in-15 appro pria tene ss of the co m= Lssion i tself trying to tak e 16 this, I co not share his belief that it is incacable of 17 coing so.

I am confident that it is.

18 COMMISSIONER GILINSKY:

That he i s --

19 COMMISSIONER KENNEDY:

That we are, as a bocy.

20 COMMISSIONER BRACFORD:

I thought you were going 21 to disagree with the other half of the 22 (Laughter.)

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23 COMMISSIONER AHEARNE:

?fe would have a lawyer, a 24 technical member, and three -- (Inaudible) 25 COMMISSIONER KENNEDY:

And we have counsel, and we have advisors.

And, indeed, the Commission 01

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876 07 05 14 kap I

has on more than one occasion 1 its recent' history 2

uncertaken to conduct pro ceedings and it has concuctec cnem 3

quite adequa tely and well, and I am confident in i;s.

4 present constitutien it could even do be tter.

5 (Laughter.)

6 CHAIRMAN HENDRIE:

I didn't have the benefit of 7

the most recent experience that the rest of you had.

8 Perhaps I have less confidence.

O ther commen ts, if you 9

like, and if not, why, Howard could plunge ahead onto 10 procedures, I gue ss.

11 MR. SHAPAR:

All right.

What I've dealt with up 12 to now of course, is who would conduct the hearing and what 13 the propellant route would be.

And I mentioned the various 14 options available to you.

I think that logi cally brings us 15 to the next stage, which is what kind of procedures apply.

16 While the procedures for adjudications are already 17 set f orth in the rules in subpart G of part 2, the model of IS Federal Rules of Civil Procedure, they are like, generally 19 speaking, the rules of any other regulatory agency.

They 20 have been refined and re-refined through the years, and 21 although varicus persons can quarrel with one or more of the 22 rules f rom varying perspec tive s I think most people concede 23 that they are generally a serviceable body of rules that 24 have been used in both enforcement and adjudica to ry 25 proceecings, licensing proceedings in the past.

I did feel,

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676 07 Oc 15 kap I

howe ver, in view of importance of this issue that we 2

ought to make the eff ort of going back and looking at the 3

rules to see whether or not there are any areas where -- and 4

perha ps some change is dictated by the rather novel 5

situation confronting us here would indicate.

6 I'll say a few words about that.

You are, of 7

course, tied by your own rules as a ma tter of law unless you 8

c hange those rule s.

These, however, are procedural rules 9

which means that you could change them by rulemaking but

'10 without notice and comment, just go ahead and change them, Il immediately effective.

12 You could do that.

We do no t recommend 10.

We 13 feel that t he rules in subpar t G. which have been used for a la variety of licensing enforcement procedures can do the job.

15 They contain a f air amount of flexibility, for example, the 16 various time s which are prescribed in the various parts of 17 the rule can be changed, shorter.ed or lengthened by the la presiding officer and by the commission.

So there's a good 19 deal of flexibility in the rules depending on how you want 20 this proceeding to go.

21 COMMISSICNER AHEARNE:

May I ask you a question on 22 the point you make in the paper in that you said 23 promulgation of new rules would be required but then you go 24 on to say that they can be promulgatec without notice and 25 comment under a certain exception.

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676 07 07 16 kap 1

Co you mean that if we wish to change a rule, we 2

could in essence just go ahead and change it?

3 MR. SHAPAR:

I think there are rulemaking 4

requirements in the Acministrative Procedure Act.

If you 5

put a Federal Register notice out that you changed the rules 6

and you state the basis for the final rule.

7 COMMISSIONER AHEARNE:

But that's e ssentially an 8

announcement that you have changed the rules and here's why.

9 MR. SHAPAR:

But ha s the legal eff ect of new rule 10 w hen the Federal Registar notice is promulgated.

11 COMMISSIONER KENNEDY:

Howard, could it be done by 12 a statement in the order establishing the body which was to 13 conc ct the hearing or conduc t proceeding?

u 14 MR. SHAPAR:

I think I would want to look a t thct 15 a li'ttle more clos,ely.

My initial reaction is that they are 16 requirements for Federal Register publication in the Federal 17 Register, but I think you deserve a be tter answer than that.

IS My impre ssion is --

19 COMMISSIONER KEhNEDY:- As I gather from your 20 answer, whatever the ultimate answer which it would be 21 pref erable to deal with the rule as a se parate ma tter --

22 MR. SHAPAR:

I think so.

23 MR. SICKNIT:

For wha t i t's worth, I don't think 24 you could change your rules by order.

The general principle 25 is tnat w ha t is done by rulemaking has to be undone by 917 301

876 07 08 17 kap i

rulemaking.

That's not to say that you can't go ef f ective 2

immediately but you'd have to have your notice and comment 3

procedures following the immediate effectiveness.

4 MR. SHAPAR:

If you are considering putting in en 5

order we could go ahead and give you the. definitive answer 6

on it.

7 COMMISSIONER KENNEDY:

I understand the problem.

8 I just want to be sure.

9 COMMISSIONER AHEARNE:

You don't disagr ee tha t you 10 can change it?

11 MR. BICKWIT:

You can change it but you have to 12 do it by rulemaking.

Make that rule immediately eff ective.

13 COMMISSIONER AHEARNE:

You can immediately change 14 a rule by publica tion in the. Federal Register.

Here's the

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15 new rule and here is why we changed it?

16 MR. SICKNIT:

Yes, you can do tha t.

What you can 17 do by order --

16 COMMISSIONER AHEARNE:

I understand.

19 MR. BICKWIT:

You cen pre scribe procedures by 20 order, but they can't conflict with your rule s.

If they are 21 not inconsistent with the rules you can use them, you can 22 go with them by order.

23 COMMISSIONER AHEARNE:

Could you simultaneously 24 without an c..er f ollowing the new procedures which you have 25 at the same time publi she d in the Federal Register hear the 4 l w i)?

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new procecures?

2 MR. SICKWIT:

Sure.

3 MR. SHAPAR:

I think so.

Looking back at past 4

experfence to see whether or not there are any variations or 5

changes tha t might legitima tely suggest themselves for use 6

in this proceeding, we have noted that in the past on at 7

least one occasion, the commission has seen it appropriate 8

to fix a date f or completion of the hearing.

Thi s wa s done 7

in one of the Davis-Be sse proc e eding s.

We don't recommend 10 i t.

11 COMMISSIONER KENNEDY:

You do not?

12 MR. SHAPAR:

No t in this proceeding, no, bu t we do 13 recommend that mayce you might consider considering a target 14 date for completion.

13 COMMISSIONER AHEARNE:

What is the difference?

16 MR. SHAPAR:

In effect, they have to use their 17 best eff orts tu try and make a targe t date but there's no la

inging on it.

19 COMMISSIONER AHEARNE:

What is the significance of 20 it?

Wo ul dn' t they normally be making the best effort?

21 MR. SHAPAR:

But there is no :arget to shoct for.

22 The target date is a target date.

Sometimes it has a 23 psychological impac t.

It certainly does in elements of the 24 staff.

25 COMMISSIONER AHEARNE:

But do we have any O 1 ')

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a76 07 10 19 kap i

experience with boards indicating that that would make any 2

difference?

3 MR. SHA?AR I wouldn't answer it in terms of 4

bo a rd s.

I would answer in terms of human nature, yes, I 5

think it would.

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ral T3 1l CC:ri!SSIO:CR AHEARNE:

Have we used target dates?

2i MR. SEAPAR:

I don' t believe we have up to new, 3l but again this is really taking a fresh lock in terms of i

4 the circumstances of this proceeding to see if there are any 5

suggestions we could make.

And this is one thing we coulc i

think of.

6j.

7!

COMMISSIONER GILINSKY:

How would you go about i

I 8j fixing a target date?

I l

9l MR. SHAPAR: Jus t sticking it in your order.

I i

101 COMMISSIONER GILINSKY:

But how would you go about i

11, fLxing --

12 !

CHAIP R I HENDRIE: Determining what it cught to be?

13l MR. SHAPAR:

Oh,ycu cught to have scme pretty goed 14!

facts in front of you about past experience and what i

15 reasonable times are for ccmoletionof the various parts of 1

16i the case.

i i

17; You would probably want to tie it down af ter the i

18 !

Staff 's safety analysis has been submitted for the reccrd.

dg 19l COCIISSIGNER AEEARNE:

So ycu wouldn't put the S

b-__b (L"ic] 20l:

target date in the order?

i U (2[6] 21' MR. SHAPAR:

I would say so many cays, perhaps, iQ ' i na after the availae..lity or un,e Star:'s sa:ety --

l.

,r 22-c m_ _ a

@)

23' CC r4ISSIONER AHEARNE:

I see it.

24 MR. SHAPAR: There are lots of other options. Tcu Ace-Feaerol Recocers. inc.

25_

knew this has to do with the bulk concept. This is one thing O1 0

?

I

U.J

46

=m2 j!

you coule do that you don' t usually do, if you are interested l

i' ^"'"

^#

2l

= concept.

3j There are certain provisions, very f ew provisions in 4!

ene rules of Subpart (g).

Subpart (g) is generally applicable S

to all adjudicatory proceedings, but there are few provisions 61 that deal only with licensing for cps and OLs by consolidation l

1 7,

or parties and special prehearing con,erence wnlen gets O,e n

i 8;

discovery started anc tnat sort of thing.

t i

9; And in this kind of what I call a big case, I guess 10:

I would reco==end -- although,I don' t consider 1: a mecentous 11l issue -- that you use these other devices that are used in i

12 !,

your regular initial ligensing proceedings,for this case.

I j3:

The next coint is, I guess --

j 14l CHAIriAN HENDR"- *kat is --

t 15l

IR. SHAPAR:

Consolidation and special c.rehearinc.

16:

con:erence.

17, As my paper said, you have get an option there.

18 You can say do it to whoever presides, cr you can say do it i

19i if you think it appropriate, and in a sense leave the i

20!

discretion with the presiding officer.

21 So that is another option you might want co 22 consider.

23~

That brings me to the number of days fcr the public 24.

to intervene.

We suggested 20 because ycu have given the u ;w.rw womn. inc.

25 Licensee 20 to answer from the date of the second order.

', fj l~g G1S I

97 i

\\

I am3 l

1, I see one counterargument to that, which I didn't see until 2{

I reread the paper this morning,and that is the licensee, of I

3l course, knew he was going to get these 2C days when you issued 4l the first order, whereas members of the public, I suppose you i

5l could argue, do not, i

6l So, I counterargue that you ought to give them more i

7j time than 20 days.

t 8l That is just laying it cut on both sices.

I guess 9;

my recommendation on balance, would be the same 2C days.

i 10l The Cc= mission's rules generally frown on inter-11 locutcry appeals.

In other words, intericcutcry appeal means I

12l an appeal in the middle of a proceeding. Generally speaking 13!

with cne or more discrete exceptions, the general rule is i

14:

you can't appeal until the initial decision comes cut.

t l

15' icw that is a salutory rule in those cases, in my 16j cpinion.

It was thought about very carefully, and it is not i

17:

an unusual -- it can disrupt proceedings, it can put a burden 0

18 on the Commission.

D-q o ci t 19 -

Let me c.ut in this wav:

It can cut a burden en the g

I (H) r-,

S)

- 20 l Commission to have to deal with individual matters cominc a r;;; ? 21 C'~

up.

Scmetimes it may turn cut to be not impcrtant, sometimes g

i-

"~~

thav are droceed, sometimes they beccme irrelevant for (c_s) 22 23.

varicus reasons and are washed cut during the prcceedings.

24-Ecwev er, the reason I suggest that you consider it, ko-fecerce Recor'ers. Irm.

25 althcugh we don't recc= mend it, is that if ycu keep your 01n 7

'i_

J U, I

i l

l mni iI; prohibition of interlocutory appeals, if the Hearing 2 card 2f

=akes a drastic mistake and you on review say they made 3i a mistake, then the case may have to go back for rehearing l

4:

on that matter.

I

)

5!

Now there are safeguards in the system because l

6; the hearing board itself can certify and issue up.

You l

7' can have the case monitored by CGC or anybody else you see 8'

fit, that is not connected with the case from the Staff, 9l and advise you when they think there is a problem area.

i i

10!

And you can direct that the issue be certified.

i 11l So on balance, I think you have -- the Commission 12' has to deal with these interlocutory matters, although i

13 it has a certain advantage than the one described.

14j I guess my own personal reaction, on balance, i

15 i and particularly after talking to Len.-- I think I.was i

16; inclined initially to recommend this to you, because it i

17 could prevent a very serious situation where a bad mistake 18{

was made and you on review would have to send it back. But I 19, think Len convinced me in our discussion it was better not te i

20 do this.

And I fully subscribe to his 'eeling on the matter.

21 CCMMISSIGNER AEEARNE:

Tnat is without 22f monitoring.

23!

MR. SHAPAR:

Yes.

24' COMMISSICMER AHEARNS.

The moniroring does r.ot ue-F.omi a.oonm !ne.,

25 need any special provision in the order?

I l

~ \\$ )

Y 5

15 1

n. 2:!!.27.2 :

".! o.

Just a question of telling i

J 2:

jour staf f or CCC to tratch the c a :.i e very carefully, and 1

3!

if :. : lochs like sonebody :.s going o f f the deep sad, l

4 !

direct that question be certified.

I l

5l

. o't, I gue ::s this brings un to the last part, t

6 and that is the :. a s ue s thensclves.

.ie re 'c had the Canuiusion's thinking as raflected in tha prior orders, 7

t I

and tru suggested sone issues that

.t e think follo pretty 8i i

i nuch tthat you have done in cone of the other sh :tdo in 9

l Cases.

10'i I think the i: q,o r t a n t point I tant to naho 11i l

.; 2 r e, though, is clearly under theer c i r.: ' n s t a n c e s, in 12!

ny victi,the ssues a; they have been done in oth,cr cases i

13; t

recently, should '.e, L: ohen datin to those short-tern I

14l

\\

I issuco uh:.ch need t o

'J e resolved before the p '.a n t can 15 !

I start up as contras ted tiith long-tern :.ssues t:hich can ee.:andled after that Joint.

17{

(

.cu, renenber what you have donc u? to n o t:

18' i

is to :.nvo k e an entraordinary renedy.

You suspended a 19 i

i licence uithout a hearing.

20!

i 7.nd as I read the case l a t,, u h o n the Lasis fcr 21 22 that innediately effective order no longer 2:::.s ts after 23' i: hau Seen ad,iudica ted as a shor:-tarn issu2, than.cu 24:

ara legal'.y requ:. red to 1' lou th;.s plant to start.: g.

w,c.,,4a.oon.n %

25.

v _-.

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s l

1

- 4 particular ease there is an adaitional feature. One Of the 2,

? ant was shut dcwn irceuiately reasons t.:at this jarticular l

l 3

13 1.ecause it sits physically so close to T::I-4.

I 4 1 I

... 5.. 'Lr A.,...,., c,..

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5lj-sul. stance and the. merits, it does not get Oc the leg:21 point.

i 6

CC;CIISSIC;;ET. Ali2A?l:2.

I am just trying :o draw 7

i

.w

...a. c.4 t4

..,cn.

a i8l 213. SIIAP AR :

e s, I accept it.

I 9i l

CCMCSSIC;IZ2 A*ICA?I:E.

But you see the next point 10l is T:'I-2 and its rasoluticn of its problems will exist for a l

Ili Icny time.

I 121 21R. SIIAPA2.

Agreer.

i 13 l' CHAI2:.1A.; IIEliDS'~

One of the shcrt-tern issues I

14l is the separation between those units.

And what.:oward is 15 s av ine. is, once you have adiudicatau that, then the fact 16 t.nat scnebedy wants to taa..s a.i.out wheth er in ancther two fears 17 there cught to be an improved cc=puter progra ning system er 18 s c m e t h i." g, it is no longer an entracrdinary situation.

19; C u^.' "'..~ a~ a" ' v^.V.'. AI"J. 7.".~c.

was *. v.i.. c.

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c 'u' '.

i

., n av that you can take cemparison with the other plants just se 21

.,.,c-..,.

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thcse Other ones.

23

• n -he cener ones ycu don't aave to e s tal.:1_ s h o.4 u m..ra a.o.m.n.,nc..

a,c, a.,, :

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te=s, I think, cne core shcrt-term issue.

r 2!

e g. t + g g a g....o.. r -.sp.s -.

'2 n. 3,. h. 4 g.w.

43 3 f _4 s e a_ _ a_.n.

s i

t 3'b short-tom issue than entsts in the others.

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?.. 512?A3. That crings me to my very ne

t point --

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7 Couldycu explain shcrt-term versus icng

'cr-a Sli lic:le tore?

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i 10

.ie are in an enforcement proceeding. There are two jji w1ys yeu coul; a. ave conunctec tn:.s en:crcement ;reccecing.

i 121 Gne,in.the way that is cc==cnly used, to say, "Shcw cause.

13j whT your license should not he suspended."

Cc= ission decided i

14 ',

not to adapt thct appror_ch, I think for a very gccd i

i 15 ;

reasca.

I 16f They adopted the second option which is to make l

i 17'

~he order immediately effective.

.;cw that was done without 18 a hearing.

Licensee did not get a hearing.

It is '-;ncun as 19l an extracrainary remedy, and ycu have full authority to Oc 20 exactl tnat.

21, The law also says -- remember the.;asic, the t

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effect:veness, when :na Lasis has een au3;dicatec so that 3f i: is no longer -- shculc no i c n g e r a. n. i..*

then thers is 1

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continuing effect.

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Cka.r?

"' hat 's the.ccin I was trvine. to make.

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..nd this second part of the crf ar u:.11 j '.stif-l the 8!

i r.ediate ef fectiveness of the crder.

'" hat 's one c f the *::-;

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j 15 lI And the reason ycu dcn' have the order in frcnt l

I0l cf you new is that I need a second part,the.;R2 part, in l

17' crder to be able to.crovice that i.ustification in ~;ivin-18 J

a finished order.

Of course, I nee.d your decisions en the 19'

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"e5 I have cne PCint.

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• • .e m'.k e sur e I ander30and ;Ou.

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23 mm9 Il Y_ou described two mechanisms by which the 1

2)

Commission, if we went to a hearing board, what the 1

3l Commission could do.

One mechanism was on a recommended i

i 4;

decision and an interpretation I gather, is going through l

5j the complete record.

I 6l MR. SEAPAR: Yes.

I 7

COMMISSIONER AHEARNE: The second was, on an 8i initial decision,and at least the description was then it 9I would review those contested issues.

10j MR. SEAPAR: That is the way the rule is now 11l readiag.

You would be in that situation.

12l You could also have your sui sponte review, of i

13 l, course.

l.

14!

COMMISSIONER AHEARNE:

I just wanted to make

{

15 clear, in addition to any contested issues, one could also 16 selectively choose additional issues.

I 17 MR. SEAPAR: Yes you could, and perform the same i

18!

sui.spente review you now perform.

i 19; COMMISSIONER AHEARNE:

So you could take an 20i initial decision and al few contested issues, and then i

21 selected ones without having to review the entire record.

22, MR. SHAPAR:

Right.

23 As you can do new in licensing proceedings, that 24-is ccrrect.

%.cos a.oonm. inc.

25 Now, that I guess dces bring us to the time O1'

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2.

mm12 1l completion of discovery, 60 days; and any kind of a hard case i

2' that is going to be too short.

i 3l CHAIRMAN HENDRIE:

According to some of the other l

4; times, every one of these steps there will be appeals for l

5' more time if those people can't get it done, and they will 6:

be granted.

7l MR. S HAPAR: This is a minimal ballpark estimate iai on really the shortest, non-outrageous estimates.

i 9

CHAIRMAN HENDRIE:

It is not physically impossible 10 l to carry a proceeding forward on the schedule you are now 11 naming.

It just isn' t very likely.

12 MR. SHAPAR: That's correct.

13 i A lot depends on the hearing board.

i i

14 !

CCMMISSIONER AHEARNE:

Could he continue, though, i

6 15 l giving this?

I 16 ;

CEAIRMAN HENDRIE:

Yes, I'm sorry.

I'll stop l

l i

i 17 j naking editorial comments.

l 18 MR. SEAPAR:

I think experience shows a lot l

1 I

19 '

depend.s on the hearing board.

20 COMMISSIONER AHEARNE:

60 discovery?

t

[

t 21 MR. S HAPAR : Yes.

22 ~

Then I said I think 5 days of prehearing conference 23 order.

We are now at day 145.

j Filing of testimony, 20 days; begin hearings, 15 24 acmani a.conen. me.1 25 '

days; cc=plete hearings, 50 days.

We are new at day I40.

')h c'

,s

32 i

1 i

mm13 I'

Filing of propcsed findings --

i 2f CCMMISSICNER KENNEDY:

Hcw many days of actual i

I 3

hearing tint are you visualizing?

l t

I t

4' MR. SHAPAR:

60 days for complete evidentiarv 5

hearing.

6' COMMISSIONER AHEARNE: That is sort of from when i

7; the hearing begins to when it ends.

i 8,

MR. SHAPAR: That's right.

i 9

COMMISSIONER AHEARNE:

In there there may be less 10 than 60 days.

II MR. SHAPAR:

Maybe less than 60, or maybe the whole 12 60.

13 And one of the ways, by the way, of assuring that I4 j

~

hold the hearing in more or less 1

some time is saved, is to i

15 '

continuous session.

This is an accepted technic.ue and it has 16 been used before.

l i

17 '

So there is lots of flexibility within the various l

i 13,

phases here, lots of it.

m_

[m r

as 8-9 J, I9 COMMISSIONER KENNEDY: What assumction did you

,f fF) j i

p..r q 4 0 make in the 60 days?

That it was conducted in a centinuous

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,]

ta c-J G_

-]a ; yClO S },

i segment?

c, c-L_._

I (c_)*'S MR. SHAPAR: Continuous, or not continuous?

23 MR. CUNNINGHAM: We had assumed in that there

• 4 would be 60 calendar days in which the bcard would probably 2c a.on, neoort.n. inc.

SC sit five days a week with possibly one or two brief recesses

.,f i

33

{.

I i

l I

mml4 1; for all c. arties to.crec. are rebuttal testimony or otherwise.

i 2

MR.SHAPAR:

Okay.

l i

l 3'

Then I think I said filing of proposed findings, l

4 40 days.

We are now at day 280.

i 5

Reply to proposed findings, 10 days; 290.

l 6

Decision by board, 45 days; we are now at the day i

7; 335.

That is only the initial, or the initial decision.

I 3

And I would figure, unless you want to go through all the rest 9

of it, figure at four months for the process I mentioned, l

10 something like that.

Il CCMMISSIONER AHEARNE: THat whole clock doesn't begin 12 until the date that we can formally get cut the detailed order.,

1 l

13 i MR. SHAPAR:

Right.

l I

l 14 Which will be sometime after July 20th.

So you have i

15 to add that one on too.

i 16 CHAIRMAN HENDRIE:

You think the Cccmission can 17; digest the matter after an initial decision by a beard in four ;

i i

18 months?

l i

i 19 MR.SHAPAR: Yes, sir, I think you can.

i I

20 Remember, this is not a typical initial licensing i

i 21 case.

These issues acknowledging their breadth has scme 22 discreteness to them.

23 CHAIRMAN HENDRIE : So it is the furthel Order of 24 the Commission, as scen as the staff gets tecnnical issues ac.s-cuni a.comn. inc.

• C cut, we can :cmplete our things, that date plus 15 months are l

1 l

c I a.

l l-i mal 51 I vhot has to be regarded as an estimate with incremental times i

I 2,

in it, which are optimistic.

l i

3' MR. SHAPAR: Yes.

l 4

The rules do provide, Guy Cunningham brings to 5

my attention, an 80-day period for briefing after the initial 6

decision.

7; CCMMISSIONEP AHEARNE:

Pardon me?

l 8l MR. SHAPAR:

An 80-day period of briefing on l

9i exceptions af ter the initial decision.

10 MR. BICKWIT: As you pointed out in your paper, it I

11 went with the recommended decision.

It might be possible to i

12 use the briefs leading to that reccamended decision in the i

13 ;

Commissien's decision.

l 14 MR SHAPAR: THat could save time.

I 15 I COMMISSICNER AHEARNE: On the other hand, if you 1

i want the recommended decision, then the Commission would' have 16 l 17 !

to review the entire record.

18 MR. BICKWIT:

That 's right.

1 i

19 MR. SHAPAR: So there is compensations both ways.

20 But the big advantage of the initial decision is to let you 21,

dealwith as little or as much essentials that you want to on 22 your cwn review.

23 CCMMISSIONER AHEARNE:

Now your point is that there 24 is a recuired 80 days after the-335, is thar correct?

ACS Efdef ai 9tOOr'er1, Ific.

25 MR. CUMNINGHAM:

If you go with the initial decisica ilG

'i

_;/

35 I

nm16 and follow the rule, which presently prescribes the language.

I MR. SHAPAR:

Another part of the rules say any i

I 3

of the times specified under the rules can be shortened.

4 Isn't that correct, Guy?

i 5

MR.CUNNINGHAM: That's correct.

6' COMMISSIONER AHEARNE: Do you have to put out a new 1

7!

rule to shorten it?

I 3

MR. SHAPAR:

No. The rule itself provides the t

9 flexibility.

10 MR. GOSSICK: Howard, with the safety evaluation 11 report -- you mentioned that the Staff had prepared it.

i I

12 Does that have to be reviewed by the ACRS, or would I3 i

it be reviewed --

i 1.1 '

MR.

SHAPAR:

It is not required by law to be l

i I

15 :

reviewed by the ACRS.

end 8 This is not initial licensing.

6 I

17 l l

I I

lb,

t i

l 19 i

20 21 e,

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3 i

AA ACS E9def 30 AtCorters, Itic.

25 Oij (7q

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36 i

CR5876.09 i

i i

EMG 1 1l COMMISSIONER BRADFORD:

80 days seems to be like i

I 2j a pretty substantial briefing period.

I l

I 3

MR. SHAPAR:

Remember you are operating under a I

4 framework where the initial decision is immediately effective, l I

S' and perhaps describes some of these time periods.

t i

6:

That's all I have in the way of prepared remarks.

7l MR. BICKWIT:

Now, another issue on time that I I

3 have raised is whether you are insisting upon the completion 9

of the required actions prior to start-uc..

And if vou are 10-doing that, and if the completion of those actions might take I

11 beyond this period of time, then start-up would be delayed 12 accordingly, which is something I think you ought to focus on.

13 j CHAIRFAR HENDRIZ:

What day was testimony filed I

l 11l on the ELD schedule?

l i

15 !

MR. SHAPAR:

Day 165.

I i

+

16 ;

CHAIRMAN HENDRIE:

For testimony filed?

I I

17 MR. SHAPAR:

Yes.

18 l CHAIIS93 HENDRIE:

Now, that is the day on which 19 the Staff safety evaluation report and associated statements 20 to go with it in fact has to be on the line?

So that's six 21 months down.

22 '

I was wondering whether the Staff would be able to 23 get the safety report out.

But it sounds to me like that is 24 another ti=c, Ace 8edef 34 R eOOr'9ft, IrtC.

25 COMMISSICNER AHEARNE:

Is that about how 7.uch time i*

' )!

I l

(i

_t I

s

37 i

i ie i

l i

l i

RMG 2 l!

it would take to get the safety report?

i i

I 2l CEAIRMAN HENDRIE:

Well, you know, there have got l

3 to be -- we have got to get down the line with the TMI lessons l i

t 4

things and the bulletins and the orders things, and then for 1

i.

5 TMI particularly the separation of operations questions, and l

i I

6' I guess an assortment of stations, specific matters.

i 7i MR. CASE:

It obviously deoends on the scoce of I

I i

B the hearings.

9 CEAIRMAN HENDRIE:

Well, that's right.

If in the i

i i

10 course of thrashing out contention and so on, why, there turn i

11 '

out to be 40 other things that the Staff needs to speak to, l

12 they will have to prepare testimony on the other things.

l i

13 j For the things I have outlined, I would guess that l

14 '

six months is not bad.

l exorbitantlh 15 COMMISSIONER AHEARNE:

But it is not an 16 large time?

17 MR. CUNNINGHAM:

If I may, Mr Chairman.

18 Our schedule assumes the Staff SER would be out on 19 Day 125, four months down the road.

The F.ay o f final testimony, 20 165, would be the day all parties would be required to file 21 testimony.

22 '

As Ed point out, the time it takes for the SER will 23 depend on the breadth of the issues which will be identified 24 by the NRR on or before the 20th.

ACS E9Cerst Appor'Wr1, Ific.

25 MR. SEAPAR:

So when ycu get that stuff on the 20th --

01

<n9 4 -

JdC

38 1

i r

i RMG 3 1

COMMISSIONER AREARNE:

I gather then that four 2l months is certainly not an exorbitant amount of time.

i 3'

CHAIRMAN HENDRIE:

In fact, that is beginning to 4i pinch, because the chunk of that is going to be taken up by 5

thrashing cut the lessons learned sorts of things, and getting i

I 6:

clear and straight on those.

That doesn't leave all that much 7i ti_me for that specific unit and its particular problems.

8, So we do have quite a procedure for dealing with f

I 9

these things.

We are certainly not likely to be charged with I

l 10 precipitous action.

i 11 I reconmend to you that we ask the legal staff to I

12 '

go ahead and begin to draft for us the procedural parts of l

i 13 l an order, and for myself I propese that those have a licensing i

14 board to issue an initial decision and then that the appeal 15 come directly to the Commission.

That is essentially the t

i 16 {

recommended course.

I 17 COMMISSIONER AHEARNE:

Howard, does that to you lock, 1

18,

like the most expeditious approach to our reaching a decision?

19 MR. SEAPAR:

The most expeditious way of doing it 20 is for you to do it yourself, to give you a straightforward 21 answer to your question.

22 That also takes the premise that was first discussed 23 at this table, you may recall.

24 COMMZSSICNE2 KENNEDY:

It also takes the premise that acs 7,eenai woomn inc.

25 you have stated in your paper, that the Cctmission then divorce o1.

L),

L J' j

I i

as i*

1 1

1 RMG 4 1!

itself frcm all other activity, and does no t let other activity ;

t 2!

intervene in ways that would necessarily delay this proceeding.,

3 MR. SEAPAR:

To be completely frank, I don't see 4'

it as a real possibility, but to give you the most honest i

5 answer I can to your question, that is the most expeditious i

i 6,

way of doing it in theory.

t 7'.

COMMISSIONER KENNEDY:

In theory.

I l

8 MR. SEAPAR:

In theory.

I 9

COMMISSIONER AHEARNE:

I was really asking more in i

i t

10 practical, of your estimate of which was the most expediticus.

I 11 That would be the hearing board?

12 MR. SEAPAR:

I think so.

l i

i 13 COMMISSICUER 3RADFORD:

With a recommended decision,

l 14 f rather than initial --

15,

MR. SEAPAR:

I think that would cut scme time off, 16 but I am not sure in the long run whether it would really i

i 17i bear out, because then you are tied to looking at the whole i

18 record and writing your own decision which may be difficult 19 '

to do. Looking at it from a plus, you would have the flexibility 20 '

of doing as much sui sponte review as you wanted.

21 You could -- the issues would be focused for you 22 by the exceptions to the initial decision.

22 So I guess the recommendation would be --

24 CHAIRMAN HINDRIZ:

Isn't what ycu save 1.kely to Ac. secerei aecomn, inc.

25 he promptly lost in the greater time that the Cc=missicn wculd i-

m i

40 t

i RMC 5 1

take compared to the licensing board that had heard the case, t

2; to go through the record and get from their recommended 3

decision through the Cc= mission's review of the whole record, r

4l and to the Ccamission's decisions on the matter.

I 5

I can see that as being pretty extensive.

If you 6'

know you are reading the dry material, you haven't been there i

7; when these things are said.

You have lost all the nuances of i

3 presentation and so on to help guide you when you do hear those 9

things.

10 MR. SICKNIT:

I think the board takes the same 11 amount of time in a case.

The trade-off is do you want to 12 avoid looking at the entire record.

13 I am inclined to agree with the Staff's suggestion l

i 14 that the initial decision makes more sense.

i 15 CHAIRMAN HETDRIE:

It certainly leaves much greater i

16 flexibility to the Commission.

I don' t know whether -- it 17 sounded to me as you went down the times -- s-year, 15-year, 18 20-year, and so on -- that thers just isn' t much squeeze that 19 could be applied on those.

20 :

MR. SEAPAR:

I think Commissioner Bradford perhaps 21 identified an area that could be squeezed on the briefing, 22 and I must say that yes, you can cut time dedicated, attention 23 to on the parts of all elements of the organization cc 24 expediting a proceeding, can produce results.

Acs E*Jt3 erat Recor*grt, :nc.

25 I am not saying that is going to drastically kncck i

A

41 t

i 1

i RMG 6 1

off large chunks of the schedule.

l 2j COMMISSIONER KENNEDY:

Not on that schedule.

I f

I e

3 CEAIRMAN HENDRIE:

But what do you do?

You have 4

t f

4 knocked down some comment ceriod from 15 davs to 10, and one i

l 5l of the parties comes in and says, "I simply couldn't make it in.

i t

6:

10, my expert fell off the porch and broke his leg and couldn't i

h 7;

come in from Chicago until last Tuesday.

And if you deny i

a me extension, vou are creventing my naving due process in j

i 9

this matter."

i 10 And the board inevitably -- and this body, if we 11 were going to do it, inevitably would grant extensions.

I mm i

12 not sure now much you gain by saying, "Well, we will trim l

t 13 '

this much here and this much there. "

i l

i 14 '

If you bring those times down below scme kind of 15,

reasonable minimums, like it sounds like you've got I

16 MR. SEAPAR:

I think that's right.

i 17 l CHAIIWAN HENDRIE:

Can you run discovery in any 9 18 less than 60 days?

i GD 19 RR. SEA?AR:

That's a minimum time.

m W) u (E> i i 20 CCMMISSIONER KENNEDY:

That's too little.

(,

Q @~!] 21

~,

MR. SHA?AR:

That would really be minimum.

D i

• a m_ r~ n l

' a c-J 22 CCMMISSICUER KENNEDY:

If there is anything that b

9 23 is going to be stretched, my guess is that would be it.

24 MR. SEA?AR:

Nell, the actual hearing days is another AG Es gral 9?OQr*ers, Inc.

25 real " iffy" thing.

Real iffy.

Ycu don't know the number of a1 i,-

l ;-

1 / [3

~

42 i

i, RMG 7 1,

parties, you haven't got the July 20th submission from the i

2[

Staff on the number of things that have to be done.

How you 3

can predict hearing days in that kind of an amorphous situation 4

I don't know.

We just gave it our best short.

i t

5 CHAIRMAN HENDRIE:

What -- on a thing like a l

l

\\

6 contested construction permit, what do you schedule, what is I

7 your normal schedule estimate for a strongly contested CP?

i i

3 MR. SHAPAR:

Six months in the blue books still?

9 Six.

i i

10 '

But you realize that is scheduling experience.

l l

t 11 CHAIRMAM HENDRIE:

That's six nonths from --

12 MR. SHAPAR:

Start of the hearing.

i 13 CHAIPMA'T HENDRIE:

Six months from the start of the i

i i

i 14,

hearing to an initial decision.

Is that is what is in your i

i 15 list, approximately?

t 16 '

I would hate to think that a proceeding which I 17 ;

have some interest in seeing go effectively, in fact is slower 18,

than the normal.

19 MR. SHAPAR:

Except that I would not fail to take 20 heed of the controversiality f actor of this proceeding.

21 MR. CaniINGHAM:

Cur schedule is somewhat faster 22 than that, about five months.

23 CHAI2 MAN HENORIE:

Okay, so i is actually 24 end $9 optimistic again.

ACD-89 der 80 9 tDQr*tN, l aC.

..t

/

/

t.

i

43 2R 5876 IELTZER t-10 mte 1 1

CHAIRMAN HENDRIE:

Well, I guess with no great jcy 2

over this discussion, I continue to make to you the recommenda-3 tion that I made for further draf ting efforts en the procedural 4

aide.

I would appreciate --

4 5

COMMISSIONER GILINSKY:

I agree with that.

I think i

6 I would like to see the Commission approve the compcsition of

^

l i

7; the board in this case, i

a MR. SEAPAR:

I see no reason why your notice of i

9 hearing couldn't specify the board members.

i i

10 MR. SICKWIT:

Mr. Chairman, could the Ccemission i

11 focus on how they want the proceeding with respect to ccmple-i 12 4 tion of the required technical. changes?

Nculd they want that i

s I,

'I 3 to 'be an issue in the hearing?

Would thev want the staf f te s

l 14 pass upon ccmpletion, or would they want themselves to pass l

I I

15 uncn ccmoletion?

i l

16 COMMISSIONER AHEARNE:

Could you explain to me hcw 17 the staf f could pass upon completion and that not be an issue 13 in the hearing?

19 MR. SICKWIT:

Yes.

It might be determined at the 20 hearing hhat the particular fix would be made to the satisf ac-21 tion of the staff, and that would be an issue in the hearing 22 only insofar as it wee d -- the board wculd determine that in 23 was likely ec be made to the satisfaction of the staff.

24 CHAIRMANIENDRII:

As centrasted with ha' ting proceed-i c smerai m.oonen. inc. -

23 ings stay in an active state until the staf f came back and u

p I

/_

JLJ

44 nte 2 I

said they have done it and we have verified they have done it.

2 MR. CASE:

That's a big time difference, if you take 3

the --

t 4

CHAIFF.AN HENDRIE:

I think that runs it out to --

5 COMMISSIONER AHEARNE:

You're not raising the question 6

of what specificallv. the fix has to be?

?

l 7

MR. BICKWIT:

You deal with the issue, one, of whether 3

that fix should be required, and whether it will be completed, j

t i

9 whether there is reason.to believe that it will be completed i

i I

10 '

,to the satisfaction, and that is the issue that the board makes' i

11 its determination on.

And then the ques tion is, if that's the 12 way you proceed, hcw is it finally determined that the comple-13 tion is satisfactory.

to this. l 14 I

. MR. S HAP AR:

There are analogies, of course, I

15 In CP hearings there are unresolved questions that can be l

16 resolved.

l t

17 COMMISSIONER AHEARNE:

My question was really more i

18 the other orders tended to be general as f ar as what the 19 actions to be taken were.

The s taf f 's satisf action--the 20 t actions that were taken ended up--the justification was, there 21 were a number of detailed actions taken which in sum satisfied 22 that more general question.

And I was wondering, were ycu 23 suggesting that an issue -- it could be written in such a 3

way that that issue would not be wn.at enose specirics wcu_c sc a.o.rm a. con.n. ne.

• C be?

[* 1, ' '

'l )

nte 3 45 1

MR. BICKWIT:

I'm not sure I follcw your question.

2 In the previous orders you have said that varicus actions have 3

to be taken.

i 4

CCMMISSICNER AREARNE:

They were very general.

They f

5 were broad actions.

i 6

MR. BICKWIT:

I don't see any difference in speci-7; ficity coming here frem the previous orders.

i 3

MR. SEAPAR:

The way it's stated in the paper, it is i

9 whether the actions required by the order to be satisf actorily 10 completed prior to resumption of operation have been or will 11 he satisfactorily ccepleted.

I believe that was the format 12 used in the prior orders.

Isn't tha t right, Guy?

l 13,

MR. BICKWIT:, That's not correct.

i la j

.MR. SEAPAR:

It's not right?

I i

i 15 MR. BICXWIT:

No.

In the prior orders, it was said the completion wculd be -- satisfactory completion would be l

16 i 17 '

an issue in the hearing.

However, a distinction lies in that la those bearings are taking place with the plants operating.

19 MR. SHAPAR:

That's right.

20 CCMMISSICNER AREARNE:

I'll talk to you later and 21 try to explain exactly what I meant.

22 CEAIRMAN HENDRIE:

Well, I wish scmebcdy wculd either B

23 ask another question or explain it a different way, because 24 I still haven't cetten --

I

• CS E*def al A tcor*tr1, ' FC.

25 MR. s. t.s.v ; T :

You have a number of alternatives.

Tcu i

I C1' 7O s

asu

nte 4 46 I'

can say not only will the board consider whether certain

'l 2J actions are to be required, but the board will also censider, 3

as part of the hearing process, whether the actions required 4,

have been taken, taken to its satisfacticn.

5 COMMISSIONER KENNEDY:

Its, the beard's.

t 6

MR. BICKWIT:

That's right.

l 7,

MR. SHAPAR:

And ultimately yours, l

3, MR. BICKWIT:

Ultimately yours.

9 Alternatively, they can say they can deal with the l

10 '

issue this way:

They can say, if by the time we are ready to 11 pass on the required actions we see that these actions will 12 not be taken until af ter we are finished, they can say, we will l i

i I

13,

determine that these actions will be taken.

Obvicusly, they l

14 l can't determine --

I 15 CCMMISSIONER KENMEDY:

These are the appropriate i

16 actions, and in fact they will be taken.

17' MR. BICKNIT:

These are the appropriate actions and 18 in fact they will be taken.

If that's where the Ccemission 19 wants to go, then the Commission should address the question 20 of whether it wants to pass on the satisf actory completion of 21 these requirad acticns cr whether it wants its staff to pass 22 '

on the satisf actory ccepletion of the required actions.

So I 23 see three alternatives:

that satisfactory cc=pletien will be

'4 an issue in the hearing, en which the beard will ccme dcwn, ic. ;.e ru a.coners, inc.

-c subject to review by the Ccmmission; that satis f acto ry D 1 'i.

i, ib

~a

ate 5 47 completion will be judged as best it can at the time of the j

i hearing, completion to be judged by the staf f; or, a third 2

alterna tive, completion to be judged by the Commissicn.

3 MR. CASE:

You can analogize it completely to an 4

l operating license.

When you have an operating license, if the r

i i

i board does not find that the plant has been ccepleted in 6

i accordance with the application, it finds that the application 7

is okay.

It leaves it up to the staff and authorizes the g

I staff to issue a license.

It determines that it has been i

9

,i i

c nstructed in accordance with the application.

10 I

i If you have to wait until the thing is done before 11 there is a trial before the board, then you don't start that i,

t I

13 j clock of Howard's until the thing is done, and then you add l

i yl all that,, time to it.

That used to be the situatied a 1cng, f'

l 1 ng time ago, before they changed the regulations, because 15 early on in the Atemic Energy Act the board had to find the l

16 plant was completed and you didn' t have your hearing until the

7 damn thing was all done.

And you couldn't conduct ycur review 18 in parallel with construction.

And it added cnto the process j9 significantly.

20 CC.TCSSICNER GIIINSKY:

When was that?

2,:

MR. CASE:

Ch, the first two or three operating licenses that were issued many years ago, 10, 15, 20.

,3 CHAIRMAN HENDRIE:

That gces back to --

.4 Ace Assersi Aeoo,nts. Inc, MR. CASE:

Yankee, I believe.

23

'I k

'1

.) L

43

~

nte 6 I

CHAIRMAN HENDRIE: Probably Humboldt, too.

2 COMMISSICNER AHEAPlIE:

I have no problem with having 3

it be af ter what actions have to be taken -- af ter it's deter-4 mined ahat actions have to be taken before the plant is allcwed i

5 to start.

I have no problem with allcwing that satisfactory 1

6 completion be determined by the staf f.

j i

f 7;

COMMISSIONER KENNEDY:

Nor I.

8' CHAIRMAN HENDRIE:

Nor I.

That seems to me to be the!

l 9

normal configuration.

l l

10 COMMISSICNER GILINSKY:

I guess that isn' t something i

i II I woul? like to decide new.

i I2 COMMISSICNER BRADFORD:

It seems to me that most of 13 '

the tyres of actions that I think are centemolated will in all l

Id !

likelihood in this case have been taken as the prcceeding coes i

f 15 along.

I don' t have difficulty with leaving that determination 16 with the staff, because I think the things that make this a 17' unicue enouch case to be treated this way really don't i

18 lie in that area, and as a practical matter when mcst of the I9 so-called TMI lessons learned will be ccming out during a 20,

portion of this proceeding and presumably will be addressed 21 during it.

22 CHAIRMAN HENDRIE:

But the implementation On scme of them may be of a long-range character, so that they wculd 4

24 not be ccmolete at a time when vcu wculd ctherwise recard the kCT E*Cer81 9tOOr*3f t, !PC.

AC unit as eligible for restart.

~

c, I

c J.)

l

49 ste 7 i

1, COMMISSIONER GILINSKY :

I thought we were talking 2

about items that the board did think were necessary for restart.

3 COMMISSIONER AHEARNE:

Yes.

4, COMMISSIONER GILINSKY.

And the question was simply, 5

who makes the determination.

I i

6 CHAIRMAN HENDRIE:

But you're thinking about -- we ' re !

7l thinking about both kinds of items, both long-term and short-8 term.

9 CCMMISSIONER AHEARNE:

I think Len was specifically I

I 10 addressing those that have -- my answer is based on, if one 11 of the requirements, for example, is that a particular set of 12 isolation valving must exist between TMI-l and TMI-2 prior to 13 i the~ plant being able to start, that I would be willing to say, l

14 I when Harold Denton agrees that that has been put in place, thati l

15 I would allow it to restart; that I would not have to require i

16 either the board or we to verify that that had been put in 17 place.

18 MR. SHAPAR:

The board would have already determined 19 whether or not the measure is adequate.

The only question is f

20 has it physically been done, and that's the kind of issue you 21 want to litigate.

22 CCMMISSICNER AHEARNE:

But it dces get back.

That's 23 why I want to talk to Len a little bit mcre about what 24 specifics are nhe kinds of specifics he's talking abcut.

ac.-;ee.,w a.comn, tre. I 25 i MR. 3:CKWIT:

Why don't you consider resolving it i

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1 by leaving it, as you probably would do in the order anyway, 2

and come back and decide --

3 CHAIRMAN HENDRIE:

For near-term drafting purposes, 4

I think you can take the views here.

i 5

MR. SHAPAR:

Would you like to see the procedural 6

part of the order before we get the input from NRR or not?

7; CHAIRMAN HENDRIE:

I'll tell you, we have scheduled, l

3 because I wasn't sure whether we would be able to focus and I

i 9

get along at this meeting, I scheduled for next week a continu-10 ation of this discussion at 1:30 on Tuesday afterncon.

This 11 is Thursday.

i 12 Is it possible to have a draf t by that time?

i f

i3 MR. SHAPAR:

Yes.

l 1

14 '

MR. BICKWIT:

The only prchlem is, if the order is 15 to contain certain issues, designated issues.

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16 MR. SEAPAR:

I'll reserve on that.

17 CHAIPl!AN HENDRIE:

The technical issues won't be 18 here.

19 MR. BICKWIT:

They would be blank spaces.

20 COMMISSICNER AHEARNE:

I think we ought to try to 21 mcVe ahead.

22 MR. SHAPAR:

I'll leave blanks for the technical 23 factors.

24 CHAIRMAN HINDR'I:

Yes, why den' ycu try to put

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25 together a draf: order along Obe lines indicated by our kE g

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various cc=ments and sort of end positions, tentative end 2

positions here.

3 We will keep that meeting on Tuesday at 1:30 on the 4

schedule.

The draf t will provide us a vehicle for further 5

discussions.

We will not have the technical issues.

Those we 6

will schedule a meeting on as soon as they come in.

But I 7:

think it would be useful to keep this discussion going and l

3 maybe we could come to a pretty f air agreement on the proce-i 9

dural aspects of the order and simply have to fit the technical '

i 10 issues and their phrasing into it.

l 11 COMMISSICNER 3RADFORD:

Howard, at what point might I

12 we lose your services through the ex parte rule?

12 MR. SHAPAR:

I --

I i

14 '

.MR.

BICKWIT:

I could answer that.

l 15 MR. SHAPAR:

I would hear it first.

16 (Laughter.)

17 MR. BICKWIT:

We interpret the order that you have 13 " put out as not constituting a notice of hearing.

It is not 19 the kind of notice that is contemplated by the regulations.

20 CHAIRMAN HENDRIE.:

But the further order clearly 21 would be?

22 MR. SICKWIT:

That is not clear.

22 C'IAIRMAN HENDRIE:

Ch.

24 MR. 3ICKWIT:

That is scmething we are reflect;.ng on.

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CCMMIS3ICNER AHEARNE:

Back to ycur technical areas.

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1l MR. SHAPAR:

It's when you hava a contest, I think, 2 !

according to the rules.

3i CHAIRMAN HENDRII:

Every time I think I've got a 4;

handle on the thing --

l 5'

MR. SEAPAR:

I think the rules state when you're 6-going to contest an issue, when you're going to contest a case.j I

7:

We dcn' t have that yet.

As a matter of discretion, you could a!

use my services right now.

l 4

i i

9 (Simultaneous discussion.)

10 COMMISSIONER BRADFORD:

I knew tha t.

My concern is, i

11 we have a number of letters of one scre or another ficating 12 '

around, people saying, I want a hearing or whatever.

Now, I t

i 13 !

take it we are not considering them tc. be responses to the I

i 14 crder.

15 At scme point all these things coalesce into a j

i 4

16 ;

proceeding and we'll be part of it.

And I just wanted as j

17; clear a notion as I can gather as to when that will be.

la,

MR. SICKWIT:

Have we had letters in -- my under-19 standing is that we have not -- that say, I would like to r

20 intervene in this hearing, and this is the way the hearing 21 ought to be structured, and this is the kind of thing I have 22 contemplated?

23 MR. HCYLE:

I dcn't think we have had chose kind Of 24 letters yet, thcugh there are scme who have e:< pressed, as ace.;.e.,m a. con.n. a.

25 Commissioner 3radford mentioned, tha t thay wculd like to aee l

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hearings conducted before re start.

i 2

MR. BICKWIT:

When you get such a letter in, would you i

3i let us know?

I think that would trigger the ex parte rule.

4i COMMISSIONER BRADFORD:

There are letters -- (Inaudible.

5-MR. BICKWIT:

Prior to the issuance of this order.

I i

6 The request for hearing has to be in response to the issuance.

7 COMMISSIONER BRADFORD:

They don't say in response toi l

8' your order.

They just say -- there are others that don't say i

9 anything about a hearing.

They just say, don't start that l

I 10 plant again.

i i

11 MR. SHAP AR:

Of course, the ex parte bar is in 12 substantive matters in issue.

But I would be pleased to step I

13,

out' at an earlier point.

f j

t 14 l COMMISSIONER 3RADFORD:

No, I just wanted the

~

15 information.

I just wanted some notion of where the line was.

16 MR. CASE:

Wherever the ex parte is, it also applies 17 to these, so I hope you will let me knew.

i 18 l COMMISSIONER KENNEDY:

Why don't we get on with it?

19 CHAIRMAN HENDRIE:

I think go ahead and do the draf t-20 ing, and counsel will keep us informed about whether we are 21 moving into an ex parte mcde on TMI-1.

I think it is clearly 22 our view that we are not there right at the mement.

But one 23 dces need sc=e sense of it.

24,

Thank you very much.

12 EH20f at Ae00r'ert, Inc. I C

e-10 25l (Whereupe n, at 11:50 a.m.,

the hearing was ad curned.)

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