ML19209D154

Transcript of 790927 Public Meeting in Washington,Dc Re SECY-79-473,CEQ-NEPA Regulations.Pp 1-61

ML19209D154
Person / Time
Issue date:	09/27/1979
From:	Gilinsky V NRC COMMISSION (OCM)
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REF-10CFR9.7 NUDOCS 7910190466
Download: ML19209D154 (61)

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[f)6 NUCLE AR REGUL ATO RY COMMISSION i

i IN THE MATTER OF:

PUBLIC MEETING BRIEFING ON SECY-79-473 - CEQ-NEPA REGULATIONS

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Thursday, 27 September 1979 Pag es 1-61

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UNITED STATES OF AMERICA C

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2 NUCLEAR REGULATORY COMMISSION I

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PUBLIC MEETING I

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BRIEFING ON SECY-79-4 73 - CEQ-NEPA REGULATIONS 5

l Room 1130 l

6j 1717 H Street, N.

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l Washington, D.

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Thn_sday, 27 September 1979 8l The Commission met, pursuant to notice, at 11:10 a.m.

9 l P RE SENT :

l 10 ;

VICTOR GILINSKY, Commissioner (presiding) 11 l RICHARD T. KENNEDY, Commissioner l

12 i l

I PETER A. B RADFO RD, Commissioner i

13 JOHN F. AHEARNE, Commissioner 14 ALSO PRESENT:

1 15 '

t Messrs. Malsch, Bickwit, Kenneke, Cunningham, Hoyle, and l

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j Gossick.

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7368 Il PROCEEDINGS

~~~~~~~~~~~

eoLTZER/mm1l 2f COMMISSIONER GILINSKY:

The subject before us 3!

deals with CEQ NEPA regulations, Proposed Revision of 10 CFR l

4!

Part 21, and Related Conforming Amendments, having to do with --

Sl' well, why don't you tell us, Mr. Cunningham.

l 6'

MR. CUNNINGEAM:

No, thank you.

i 7 1 MR. BICKWIT:

This was a matter that was prepared i

3 by OELD, by the Deputy General Counsel when he was a member 9

of OELD.

10 MR. CUNNINGE.M4 :

He has graciously agreed to make II the presentation this morning.

,2 MR. BICKWIT:

That was a condition of his coming 2

I3 over.

14,

MR. MALSCH:

I had to agree to present the paper.

15 COMMISSIONER GILINSKY:

Let me mention also, I 16 understand a letter has just come in from CEO addressed to U,

Mr. Shapar, which deals with te subject under discussion, and you may want to comment on that.

!9 I don't know wheth er you have had a chance to look 20 :

at it.

I have, and I can give some comments on it.

21 '

We also have some extra copies around the we can 22 distrib ute, in case people haven't gotten copies.

I}k O 23 COMMISSIONER GILINSKY: Good. 24 You can tell us how that affects our discussion here. Ace Federal rieoorters, Inc j 25 MR. MALSCH: Okay. Let me begin by giving some i f

l 4 i mm2 1l background. c3 i i 2 !! In May '77, the President issued Executive Order i 3l 11991, which directed the Council on Environmental Quality l 4j to issue regulations to federal agencies to implement all 5{ the procedural revisions of the National Environmental Policy 6' Act, usually referred to as NEPA. 7 In the same order, the President also directed all 8i federal agencies to comply with regulations issued by CEQ, I 9 except where such compliance would be inconsistent with i 10 starutory requirements. II The CEQ published proposed regulations in June of 12 '78. It received numerous comments on the draft regulations, i 13 ! including some from the NRC. l l i 14 i And then the CEP published final regulations in i i 15 November of '78. Those regulations become effective on July i 16 30, '79. 7 COMMISSIONER KENNEDY: Will you at some point then, 15 refresh our memories as tothe relevance of the final rule as i 19 it reflects or does not reflect NRC comments? i I 20 ; MR. MALSCH:

Okay, l

21 ; The regulations by CEO said that the current 22 l guidelines would remain in effect until that date, July 30, 23 '79. k-24 Following publication in November, the NEPA ACS E9deral Reco,Ters, ISC. 25 regulations were studied closely by the NRC staff, and in May 1174 074 i

5 i N mm3 I of this year, the Staff submitted a paper to the Commission, 2' SECY 79-305, which informed the Commission of its analysis of 3I the CEQ's final NEPA regulations and asked for guidance from 4! the Commission as t7.how it should approach the matter of 5, implementation. I I 6' The Commission met on the paper, and in response i 7 the Commission prepared a letter to the Chairman of GQ, which 8 was sent on May 31st, '79. And that letter expressed a view i l 9! that a sound accommodation could be reached between NRC's i 10 independent responsibilities and CEQ's objectives of establishing uniform interprocedures, and the letter stated that the 't 12 ! Commission 9ould develop regulations to take account of the CEO i 13 1, regulations voluntarily, subject to certain stated reservations. t 14 Now let me add here in resconse to Commissioner i l 15 ' Kennedy's comments, that the Commission submitted several i l i i 16 kinds of comments. The most significant comment dealt with the 17 issue of the authority of CEO to issue regulations binding an i 15 independent regulatory agency. I 19 In its final regulation the CEO adhered to its posi- ' 20 i tion that it could adopt regulations binding an independent i 21 l agency and did not respond to the arguments made on this subject. 22 in any detail in its preamble to its final regulations. l 23 My understanding is that the approach that the 24 Commission took, namely to say we undertake to comoly voluntarily ac..r.eer.i a.oemri, inc. 25 l is the accroach which most and maybe all indecendent comm' 5-ions ~~ ^ ~ \\\\14 07

6 1 l I j are also following; adopting a view that CEQ cannot bind them, mm4 l l 2l but that they will as a matter of policy undertake to comply I 3 voluntarily. 4l COMMISSIONER AHEARNE: The Justice Department l l 5' tended to agree that they couldn't bind them. i 6: MR. MALSCH: That's correct. 7;; There were several memoranda -- 8 COMMISSIONER GILINSKY: They could or could not? i 9 COMMISSIONE? AHEARNE: Could not. 10 i So that it was not just the Commission who felt -- II MR. MALSCH: Oh, no, that's right. i i 12 ! There was always some considerable doubt about this 13 proposition. And in fact, even beyond that the Executive Orderi l 14 ' only authorized CEQ to put out regulations of limiting so-l i 15 called procedural provisions whereas it is quite clear, and i 16 I think our comments noted to CEO on the draft regulations made 17 it clear that 6EQ( go far beyond purely procedural kinds of q i IS, regulations. i I9 COMMISSIONZR KENNEDY: Given the Executive Order, h 20 l the Justice Department's views, and our own views in the 1 21, matter, our willingness therefore I assume to comply l 22 voluntarily does extend only to those matters which are i l 23l procedural? 24 MR. MALSCH: Yes. '~ co Federal Reporters, Iric. 25 As a matter of fact, in the substantive areas 6* 7 6 1174

7 l i I nm5 either looked at them and treated what they.were doing as a 2; good idea, or expressly reserved. In fact, all the 3li reservations that we have and have stated, all go into I substantive areas. So the reservations are clearly solidly 5 based as a legal matter. l 6! MR. BICKWIT: have we not agreed t comply witn some 7! substantive -- l i 8 MR. MALSCH: We have agreed to comply with some 9; substantive, because they -- in the most part they conform 10 with present practice and didn't appear to cause any 11 difficulties. i 12 Where they appear to cause difficulties,we reserve. l 13 ' We ar e not I 14 COMMISSIONER KENNEDY: We are not, there: ore, l 15 i complying with the regulations. We are simply codifying our l i 16 existing practice in this regard. i MR. MALS CH : Or modifying existing practice -- COMMISSIONER KENNEDY: Modi fying. -- l I l MR. MALSCH: Where we believe ourselves it is a t nn" good idea. t 2I I COMMISSIONER KENNEDY: -- where it is a good idea, 22 reasonable idea. 23 MR. MALSCH : Correct. i 24 i ' ~ i COMMISSIONER KENNEDY: So it is a decision o f our co Federal Reporters, Inc. l own, not a compliance with the regulations. jjJ4 Q7[

8 m' I MR. MALSCH: Absolutely. 2l In fact, the paper and the regulation which we I 3' are urging the Commission to publish for comments says so l 4l expressly, that we are undertaking to comply voluntarily, i 5! COMMISSIONER KENNEDY: Fine. l 6 MR. MALSCH: Well, that brings us to this paper 7' which is intended to do just that. 8 i The action requested here is Commission approval 9l to publish these proposed regulations for comment. l 10 l We also need a decision on designating a responsible official that will serve as chief contact person within the 12 i agency. And that is also discussed in the paper. i 13 What I thought I would do is discuss, first of all, 14 the scope of the regulations; mention a little about the overal i 15 ; plans for Part 51; discuss briefly the reservations that the 16 ' Commission has had in these regulations, items it has had 17 problems with and wanted to reserve for further study. 15 I will quickly go over a couple of areas where 19 l these proposed regulations do represent a departure from I 2C l practice, and then run over quickly the recent CEO comments 21 that we received just this morning. 22 COMMISSIONER KENNEDY: As to those comments, I would' 23 solicit the views of my colleagues. I can assure you that I 24 l have not yet had time to do more than give them a cursory co-Federal Repor+ers, Inc. 25 reading; certainly have not had time to take them fully into 1174 078 I

i 9 t mm7 1 account and therefore I wish to note here that whereas I do 2 want the briefing to go forward, I do not intend to register 3l a vote at the end of this meeting until after I have had time 4 to review the CEQ views which we received this morning. t 5' MR. MALSCH: Let me say I only had a chance to i 6! look at them thoroughly because I didn' t attend the 9: 30 l 7 Commission meeting. Otherwise I would not have read them 8 even myself. I just got them this morning. r 9{ COMMISSIONER AHEARNE: My only comment then on that 10 t would be, I am not sure why we should view them in any way i il dif ferent than any other comments we might receive where we f 12' publish them. j 13 ; MR. MALSCH: Let me say just as a sort of preview to 14 l what my reaction to the comments was. The comments do not -- I 15 the letter does not say, do not publish. They do raise a couple. 16 ' of objections. And, in fact, in the recent Federal Register U publication which listed the status of all agencies' compliance,. U l 13j they listed us in a category which they made it clear they Il 19 expected us to publish regulations by October 10th. l a 20 So the only inference you could draw from both the 21 l letter and the listing is that they really expect us to publish, 22 the regulations for comment, and I think consider their comments: 23 during the normal commenting process. 24 COMMISSIONER AHEARNE: That was my initial reaction. ce4ederal Reporters, irsc. 25 MR. MALSCH: In fact,they say in the letter these are. 1174 079

10 i ~s**0 1 preliminary and their final comments will only be given until 2 then. I 3 Okay. First, let me discuss briefly the scope of I i 4' the regulations. l 5' The regulations here proposed deal only with the 6 NRC's domestic licensing and related regulatory functions. They 7 expressly do not apply to export licensing matters within the 8; scope of Part 110. I i t 9, They do cover imports, however. i 10 Nor do they apply to any effects which NRC's il ' actions might have on the environments of foreign nations or 12 the global comments. And this approach is consistent with l 13 the approach taken by CEQ itself in its regulations where it I l 1 14 l said it is not the purpose of these regulations to resolve l i 15 the question of whether NEPA applies abroad. That was j i 16 ' reserved to what was then an ongoing process to -- (Inaudible.)l 17 So in this respect, the scope of Part 51 as proposed is consistent with the CEO regulations. m l 19 Now also the regulations say that Commission actions 20 relating to initiating or carrying out judicial or civil or 21 administrative enforcement actions are not subject to NEPA. And 22 that is consistent also with the CEO regulations which say that. 23 So that would mean for example that there was no 24 requirement to do EISs or assessments on enforcement proceedings Ace Federal Reportsrs, Inc. 25 like chutting down power reactors or issuing notices of i174 080

11 ! I i , mm9 violation. j Also, on a fairly minor matter the regulations 2 don't address limitations on our authority derived from the 3 Water Pollution Control Act. That is dealt with separately. 4 l COMMISSIONER KENNEDY: There is no environmental Sl! 6l impact then assumed on the shutting down of a power reactor? MR. MALSCH: There would be. It is just they are 7 excluded from the NEPA process..There is no need to do an 8:' l EIS. 9 COMMISSIONER KENNEDY: I understand. It is an 10, lj interesting anomaly. MR. MALSCH: I think the concern on the part of CEQ 12 ! i is that you impose NEPA obligations, you would discourage j3 anforcement action. 14 I COMMISSIONER KENNEDY: Of course, t 15 l MR. MALSCH: Let me mention also the plans for the 16, 37 parts. What we have got here is proposed regulations to implement NEPA in a Subpart A of Part 51. gq I 19 l The old Part 51 dealt only with NEPA. The plan here y' is to have a greatly expanded Part 51. At least eventually a u, greatly expanded Part 31, in which NEPA would be covered in 21 Subpart A. Other environmental statutes would be covered in 22 ther subparts. 23, I 24 l Now there are a lot of other environmental laws 2c..r.e..i n. n.n. inc. I 25 that affect the way the Commission exercises authority which 1174 0814

12 are not dealt with in our regulations. And the theory was mml0 1 the time had come for us to codify some of these laws, and 2 3 some of our procedures. And that will be done in other i I 4 subparts. S i Here, for example, we would add regulations 6 dealing with Section on Coordination Act, Clean Air Act, 7' Historical Preservation Act and all these other environmental l 8. statutes. So that we would have in one place, one part, the I vast bulk of NRC's so-called environmental regulations. 9, i 10, Thirdly, let T.e mention the items we had reserved 11 on for further study. 12 Items wher we chose not to comply with certain 13 parts of the CEQ regulations pending further consideration of I 14 i them. These items were all the ones as noted in the Commissionjs I 15 > letter to CEQ which they prepared in response to the early l t 16 Commission paper.

7 The regulations say, proposed regulations say that i

3,

we will follow the CEO regulations with certain designated l 19 1 exceptions. And these exceptions are that we would first i 20, devote further study to the requirement that we consider each 1 alternative, give substantial treatment to each alternative 21 ;l 22 l considered in detail. That we give further study to the 23 provision which dealt with our obligation to gather information: i 24 where there are information gaps, and our obligation to do so-Aa4 Metal Reporters, ltw. 25 called worst case analyses. 4 i174 08c

13 mm11 I And it would also give further study tothe i 2 requirement that we prepare NEPA impact statements in circum-3' stances where we had failed to act rather than took positive I 4l action. This latter category deals with such things as i 5 request for enforcement action and petitions for rulemaking, 6 where the CEQ regulations arguably would at least arguably I 7 have required us to do EISs in all rulemaking petition denials.' 8 Which would have caused some problems. 9! We are reserving on these for further study. I 10 l COMMISSIONER KENNEDY: Would you take a moment II and explain the logic. It escapes me, MR. MALSC.'. Behind the CEO requirement? l I3 COMMISSIONER KENNEDY: Yes. i MR. MALSCH: I think what they had in mind was Id 15 l situations where the law requires an agency to act, but it l 16 fails to do so. And that failure has significant adverse U' environme: tal impact. UN The regulations are not so clear on that point, and ll I9 l our problem is as written, what would we do for example if some-20 one filed a petition to shut down all currently operating nuclear 21 l power reactors. Obviously, if we granted the petition it 22 would have a significant environmental impact. 23 i Therefore, arguably the CEO regulations would have I 24 ! required us to do an EIS before we denied or gra:.ted such a AceJederal Reconers, W. 25 petition. 083 i

14 rm12 I But if we conceded that proposition then we would 2 be committing large resources every time someone filed a i 3 petition. So we have got to have some discretion as to how 4 ! do we treat these kinds of things. l 5l The same is true for 2.206 requests for enforcement i 6l action. l I 7i What we did is, we did not expressly acknowledge 1 i 8 the CEQ requirement, but we made sure that in drafting our l l 9j own regulations, we reserved flexibility to do EISs in any i 10 l case in which we thought we ought to do one, and that would II include rulemaking petitions and enforcement actions if we 12 ' really thought we ought to do one. But we didn't expressly i 13 l adopt the requirement. l t Id l COMMISSIONER KENNEDY: The decision as to whether IS ! either it is required or desired rests with us? 16 l; MR. MALSCH: That's correct. U If we had adopted this particular provision, we I5 l would have lost a lot of discretion to do or not do one 19 ! in these kinds of circumstances. I 1 k: COMMISSIONER GILIhSKY: Is it clear that they 2l l really intended t."at EISs be prepared in these situations where, 22 l the Commission felt that, or is that jus ~. a possible reading of - l 23 1 the way it was -- I 24 ! MR. MALSCH: It is a possible reading. ceJederal Reporters, Inc. l 25 ' We discussed it with them and it was just very 1174

084, i

15 ~m13 1 unclear what they had in mind; i 2 I think what they had in mind are a fairly limited a 3' class of situations in which, as I say, there was an obligation I i 4 to act and the agency should have acted but did not, and the 5 failure to act was more of an action than an inaction. 6 COMMISSIO2R BRADFORD: But let's see, if the agency l 7l acknowledged that it should have acted and did not, then once i 8 you get over that threshold the first thing that ought to l l 9' happen is the preparation of an EIS. 10 l MR. MALSCH: That;s right. II ! Whenever we discussed this with them it was very 12 i unclear exactly what they had in mind. They raised this i I3 issue again in their comments and they say some situations I Id ! you will be required to do one, I guess I ',ree, maybe there are situations we-15 16 ! ought to do one, but the regula tions the CEQ put out was not ._: ; sufficiently discriminatory. It would have removed a lot of i I5 ; our discretion. So we elected to study it further, but then I resrved authority we always have to do EIss whenever we want to.! 20 COMMISSIONER BRADFORD: I suppose the kind of i 2I situation che might arise is one in which someone petitions 22 us to take an action rather than con inue to tolerate either 23 a certain level of risk or a certain possibility of a certain type of emission. 1174 085 24 Ac..r.w.i secomn, inc., 25 ' So the argument could be once we have made the

16 i 714 1 decision that that is tolerable, we should still state what 2l the impact is, if we could tolerate that risk or that emission 1 3l for whatever long a period we have in mind. I I 4 MR.MALSCH: The only problem is, you could almost 5 single out any area in which something the Commission is doing i 6{ is having an environmental impact. And if all you need to do 7 to trigger an obligation to do an EIS is to say change it, 8l then we are talking about a lot of resources. 9j COMMISSIONER BRADFORD: I am not advocating it, I'm 10 just trying to make sense of it. 11 MR.MALSCH: It is hard. I mean everyone can see 1 12 i that there may be some situation in which you really ought to 13 do one. But to put your finger on exactly when that is, is i 14 difficult. j 15 i I think CEQ may have tried to and not been too i 16 successful in the regulations. They tried to in discussions ~ and were not much more successful. I think we just felt that 6 the area was so uncertain that we really couldn't in good i 19 conscience simply adopt the language they had. We had to 20 - reserve on it. 1 21 COMMISSIONER GILINSKY: Well, just deciding to 22 prepare an elaborate EIS is in itself a major commitment of i 23 reso urce s. 74 086 24 MR. MALSCH: Oh, yes. Ace Federal Reoorters, Inc. 25 Particularly so called programmatic statements which

I 17 i .nm15 I have taken an enormous amount of resources. 2 COMMISSIONER GILINSKY: Unless you draw the line, 3l there is no end to it -- I MR. MALSCH: That's the problem. i I Sj COMMISSIONER GILINSKY: -- to the statements. 6 You get statements on other statements. 7 MR. MALSCH: Right. You get statements tiered upon I S i statements. l 9l COMMISSIONER GILINSKY: Yes. l 10 ! MR. MASLCH: Three other things we reserved on. 3' ', One we simply said we wanted to reserve the right 12 to examine future changes to the CEQ's regulations to see l I3 l[whether or not we would adopt them. ~ Id l We reserved the right to prepare an EIS whenever 15 we had jurisdiction over an activity, and we reserved the 16 ' right tomake final decisions on matters within our jurisdiction II even though another agency had requested a so-called predecision referral to the Council. I U The CEQ regulations had provisions wherecy there is t y a dispute-solving mechanism set up within CEO and the Executim 21 l Branch. And had we agreed to adhere to the outcome of that 22 kind of process -- we could not agree to the outcome of that 23 kind of process without doing something that was inconsistent 24 with our -- the concept of NRC as an independent agency. asewei a.comn. ix. 74

087, 25 So we reserved on that.

I

18 c 5 1 Okay, let me briefly run over the -- where the 2l proposed regulations amount to a signficant change in prior 3ll practice. I 4j First, the regulation lists additional activities 5, where we will do EISs beyond the ones that are presently I 6 listed. This includes away-from-reactor spent fuel storage i 7 facilities and various kinds of licensing actions dealing with I 8; high-level waste repositories. i 9l We also have additional areas where we are required 10 l to do environmental assessments. And this includes spent j II fuel pool expansions on existing reactor sites, backfilling i 12 repositories and a few classes of materials licenses. i 13 So we have reviewed the existing categories in i i f 14 l present Part 51, and in many cases expanded them, in some 4 1 15 cases narrowed them down. l 16 COMMISSIONER GILI:ISKY: Could you briefly state the U' difference between a statement and an assessment? IS ! MR. MALSCH: Well, the idea is in the regulations 19 - that an agency does three things: Either an action is i 20 l categorically excluded, in which it does nothing. Or, it does I i 21 l a full environmental impact statement. 22 New - it does a full EIS, if it is listed as 23 requiring one in its regulations or if the agency decides ~ 24 purely as a matter of discretion to do one, or if the agency Ace Fedef al Rec,rtsrs, Inc. 25 after having done a so-called appraisal, decides that this is i174 088

19, l mm17 indeed an action that has a significant effect on the human i 2ll environment. 3 The primary purpose of the appraisal is to handle 4 the doubtful cases, cases in which you are not sure whether 5 or not you need sn EIS, and you will need to document whether i 6l or not -- typically in cases you are not going to do one, you i 7 will need to document why not. And that is the primary purpose 8 of appraisals, to document the analysis that the agency makes 9 whether or not to do an EIS in these doubtful cases. I 10 i COMMISSIONER KENNEDY: How much shorter than an 1; environmental impact statement s this appraisal? 12 MR. MALSCH: Well, in concept it should be a let 13 l shorter. l 14 l COMMISSIONER KENNEDY: How about in reality. I 15 ! MR. MALSCH: In reality they have been a lot shorter.! 16 l COMMISSIONER GILINSKY: Do you use appraisal and 17 assessment interchangeably? 13, MR. MALSCH: Yes. l 19 l The old regulations used the word " appraisal." I 2c ' think the new terminology would be " environmental assessment." 21 l There is a looseness in terminology here. 22 There is a problem though, because assessments are 23 not only designed to decide whether to do EISs in doubtful 24 cases, they are also used to comply with other parts of NEPA c.Jecersi m.oor rs, inc. 25 l that apply to agency actions even when the action. 1174 089

20 l l doesn't involve an EIS. For example, NEPA imposes an obligation mml8 jj i 2l to look at alternatives in all cases involving unresolved 3 conflicts concerning alternative uses of available resources, i I even though the agency isn't doing an EIS. 4 t 5l So the appraisal also -- the assessments also l i i 6l perform a subsidiary functio.n. They are going to take care l 7; of an agency's NEPA obligations in situations where they do i not have to do environmental impact statements. 8, l 9; For example, on an amendment to a license in which 10 i we are doing an appraisal, the appraisal or assessment would, 11 A, document the fact that this doesn't result in a sigdficant l 12, adverse environmental impact, and also contain the agency's , 13 l evaluation of alternatives in one single document so we would i 14 l comply with NEPA. l i 15 COMMISSIONER AHEARNE: Marty, is it correct the i 16 universe now has three tyges in it? You have EIS, EIA and l i 37 categorical exclusions? 3, MR. MALSCH: That's correct. I 19 ! COMMISSIONER AHEARNE: So thatthe finding of negative 20 declaration, that's out? 21 i MR. MALSCH: That's out. 22 It is replaced by a finding of no significant impact i 23, which must follow, which only follows an appraisal. 24 COMMISSIONER AHEARNE: So that everything that is i co Federal Reporters, Inc I 25 ; not excluded, must end uo with either an EIA or an EIS? 1174 090 ~ i

21 l ^ 19 i MR. MALSCH: That's correct. Which is why we had 2' to be very careful in drafting the categorical exclusion 3, categories. And this is different in the present regulations l I which pretty much say unless it is listed in these categories, 4j. 5 don't do an appraisal or an EIS. l l 6l COMMISSIONER AHEARNE: I understand that. l 7l What is the philosophy underlying that? Is it I i gl philosophy that there were not enough cases where a true finding 9 of a negative declaration was appropriate? I i 10 MR. MALSCH: I think the concern was that a lot of 11 actions were falling into the cracks in the sense that they i 12 ; were just never looked at. 13 COMMISSIONER AHEARNE : But that could have been taken 14 care of by a fourth' category which would have been af ter i l 15 l review of a negative declaration. t I 16 l MR. MALSCH: Okay. Except I think what would have

7 happened would be that you would have, in that scenario, sort i

i

3 of two categories of assessments. You know, real big assessments l

19 ' instead of mini-assessments. 20 ! And I think thatis probably still feasible to do I 21 in sort of minor actions that are, you know, sort of one 22 little notch above categorical exclusions. I think it.would 23 ! still be quite. reasonable to do very abbreviated assessments I 24 ! or appraisals. jjJ4 Qg) ceJederal Reporters, Inc. 25, The regulations are quite clear that you don't hase I

22 i i mm20 i to spend a lot of time addressing issues that aren't significant l 2i and alternatives that aren't v iable. I t 3i The conclusion you reach upon looking at en action I 4 is, if it is not categorically excluded, it is not really a 5 big deal, there don't appear to be any impact, there are no 6! feasible alternatives -- or the ones that do appear feasible are t l 7; clearly not warranted. And I think we are talking about a brief l g! kind of assessment or appraisal. I 9! In cases where it is more doubtful, we are talking al l i 10 { much more expanded document. 11 So, while there is no fermal division into little 1; mini negative declarations on the one hand and appraisals or 13 ! assessments on the other, I think _ as a matter of practice l i 14 l that there will be variations in the depth and details of I l 15 these appraisals depending upon the action. And there should l 16 ; be nothing wrong with that under our regulations and the CIQ's g! regulations. 13 Okay, the next change I want to mention is che I, 19, scoping process. This is a new concept which CEO introduced 1 20 in its regulations. And the idea is that in cases whre the i 21 agency has decided to do a full impact statement, it should i 22 very early in the process conduct a scoping process which 23 would have as its purpose, clear identification of the nature 24 l of the federal action, identification of the significant ceJederal Reporters, Inc. 25 issues that need detailed consideration, identification of the 1174 092

23 j mm21 1 issues which are not significant and you won' t want detailed 2! consideration, consideration of who is going to prepare which 3 portions of the statement, and consideration of timing in t 4 relationship to other federal actions. 5 It is really intended to be an open planning process l t 6 which will get the agency to make early preliminary decisions 7 on basic questions of scope and detail, and will get the l ai public involved early on in these kinds of decisions. I i 9! We implemented this concept in our regulations I 10 l which would call for a scoping process and would call I il for the director of the appropriate staff office or his 12 designee prepare a concise summary of the scoping process l' i 13 just after it is completed. And that summary would, in theory, l 14 l guide later statement preparation. 15 l The next change I want to mention is the relation- ! l 16 ship between EIss and public hearings. 17 Under our present regulations, the impact statements

5 l are considered in the NRC hearing process. If the statements 9

19. made by the staff in its statement are changed in any way in i i 20 ; the initial decision or in the Appeal Board's decision, then j 21 ' that decision itself is regarded as an amendment to the staf f l 22 ' impact statement. 23 So in concept in, let's say, a power reactor 24 ; licensing case you have a staf f impact statement.and an initial Ace Feceral Reporters, Inc. l 25 l decision which the statement modifies or reaches different l 1174 093

24 l 22 1 conclusions than the staff, is also a kind of impact statement, t 2 I and so on up through the line. 3 That concept is now changed in these proposed 4 regulations. Instead we have built upon the CEQ's new concept 5; of a record of decision. i 6! The regulations require that there be a record of l 7 decision in all EIS cases. And what we have done is said that i 8' the staff will prepare a proposed record of decision in I 9I situations where either the Commission has final authority or l 10 the matter can be subject to hearing. j 11 COMMISSIONER AHEARNE: That was a term that I was i 12 unfamiliar with, and running into it in your paper for the I 13 first time. 14 Could you explain a little bit what change that t 15 ' makes in what now the staff would do? What is a record of 16 decision? 17 MR. MALSCH: Well, it is not much of a change. I 15, think the record of decision will, under these regulations, I 19. look very similar, maybe identical to the up-front summary of I 20, conclusions the you ordinarily see in a staff final impact 21 ! statement. 22 Now the CEQ objective was b make sure tha t EISs 23 became decisionmaking documents. There were some agencies 24 which separated out the EIS process from the decision proce'ss. Ace Federal Reporters, Inc. }$ 09k 25 And the two never clearly came together.

25 t t mm23 1 We've never had that problem because we have always 2l considered EISs as a part of our decision process. So it is i 3' not that big of a change for us. i I 4 All it would require really would be some seoarate 5 attention given to, if not a separate document, at least a i 6 separate page that would be labled " Record of Decision." And I 7! it would be essentially a summary of the ultimate decisions I Si reached in a NEPA review. I 9, What we did was, we just built upon that concept 10 l in our regulations and said, hey listen, why have the initial 11 decision modify the EIS, whichis this big, fat document and 12 pretend that initial dec ons, appeal board decisions, l i I i 13 l Commission decisions are Ipact statements, which they really l 14 don't look like at all. Instead, we will simply have them l 15 modify the record of decision which makes a lot more sence, 16 l because that is really what they are, W So we abolished the idea of modifying the EIS 18 through the decision process and introduced the concept of i 19 modifying the record of decision for the process. And I think l 2C. that would be a lot simoler, and it is more conceptually in 21 ' tune with what happened. t .'2 But it is a new concept in the CEQ regulations. 23 It is in theory a new concept for us, but it is very similar 24 to our practice to having summary conclusions in EIss. AceJec* erat Aeoorters, Inc. 25 ! We also adopted parallel procedures for having i174 095

26 i s m24 1 proposed findings of no significant impact. These would 2 parallel records of decision so that for example if there were 3lI an amendment proceeding and the staf f concluded af ter doing an i l 4 appraisal, that there was no significant apact, that finding i 5 would be subject to review throuch che review process, which 6 again is a new concept, but is pretty much in tune with what l 7 the present practice is. l l 8' The next item I wanted to mention, and I guess the I l 9 ', last item that I want to mention, is the change in present 10 practices, the one that I just discussed with Commissioner II Ahearne. That is the concept of categorical exclusions. It 12 is a different concept.. i i l i 13 l Something falls into either one of the three i t i l i 14 categories, and if it is not categorically excluded, it must i 15 - be either the subject of an assessment or appraisal or a full I i 16 i impact statement. 17 We have -- this was probably the most difficult part I3d of the proposed regulations to draft. Il 19 COMMISSIONER AHEARNE: 3ecause it did away with the 20 ! previous ability to make a finding of no -- 21. MR. MALSCH: That's right. The prior regulations 22 simply say if it is not listed, as it requiring an appraisal 23 or an EIS, essentially forget it. You needn't do one unless 1174 096- ~ 24 there are unusual circumstances. Aaseerei n wonen, ine. ; 25 ' Also, you know, in all honesty when those regulations l i

27 '25 1 were put out, revised, they were pretty much picked up from 2, the initial Calvert Cliff response regulations in 1971-72. i 3 And I don't think it has been since '72 that the staff has I s 4 taken a careful look at the various categories of actions S' to see which ones might or might not require environmental 6. reviews. i 7 They did take a much more careful look this time, i 8l so the listings you have are not only as a result of the CEQ l i 9, regulations, but also a result of the staff's own reexamination l 10 ;l of the various categories of actions. 1 An effort was made to bring out and put at least 12 ! in the assessment category, some kinds of licensing a ctions i' 13 where the staff really felt they ought to do appraisals and 14 l perhaps ought to do impact statements. i 15 Now I have to say that it is a difficult process l 16 l because there are many areas, particularly areas dealing with i 17 materials licensing actions. The staff was unable to point to t

5,

a whole series of documented environmental reviews. And so I i 19 : the decision to put them in a categorical exclusion category 20 ; is based upon essentially just judgments of the people involved 21 f in the process. 22 And we acknowledge that. There is no ;. hiding the i 23 fact in our rules, and we specifically say, . listen, 24 this is based upon experience. We can't confirm this absolutely'. c.s.emi neoon n. inc. 25 But to do so would require an enormous amount of resources, and; 1174

097,

I 28 l I i (26 I frankly the reason why we have this category is we would 2 rather spend the resources on the problems we see as significant 3l and not spending the resources doing a lot of assessments. 4 So our problem was highlighted in a very candid 5 fashion in the preambles of the rules. The idea was, let's i 6! see what happens. Some of them, reasonable minds can differ i 7! about, and let's find out. But at least let's propose them, 8 get comments out and then make a final ~ decision. l I t 9 COMMISSIONER AHEARNE: Could I ask one or two questions i 0: MR. MALSCH: Yes. l II ' COMMISSIONER AHEARNE : I notice on page 33 where i i2 ' you are talking about the licensing of fuel cvele olants, I I3 : et cetera, and you say if there is no significant construction i Id impact. l 1 15 ' Now that seemed to be -- the other three items were 16 ' listed early in the general description as part of the I7 categorization. And that similar point is picked up again f I I6 l on page 35 in number 12. i M i Now by construction impact, are you talking about 2C the physical environment? Is that what you had in mind? i 2I MR. MALSCH: That was the idea, moving equipment 22 in, knocking down trees, building new walls, these kinds of 1 23 l things. That's what we had in mind. 24 COMMISSIONER AHEARNE: Why would that then be listed ac..%.t.i n.xn.,.. ine. 25 ~ back in the previous area where you had the other three as i174 098 : t

29 i I mm?7 1 being the major characteristics? 2l MR. MALSCH: The previous three? i 3* COMMISSIONER AHEARNE: Yes. In an earlier section i 4l you talked about the criteria will be no increase in the l Si effluents, no increase in occupational exposure, no increase l 6' in tha potential for radiological accident. The emphasis is l 7j all e that, which is more on the radiological effect. l t i 8; Now you have introduced the physical environment j l 9 ! construction. I am not questioning why it is introduced, 10 more why isn't it in the earlier -- 11 MR. MALSCH: In the earlier ones we tried to I 12-draft them so as to rule out construction impacts as a 13 practical matter, I think. For example, number 9, that says: l 1 i 14 l " Issuance of an amendment to a permit or 1 15 licente for a reactor which changes the requirement i 16 ' with respect to 17' This is on page 30. 13 . installation or use of a facility component t 19 ' located within the restricted area. 4 20 ' The theory was that changing a component within t 'l 21 l the restricted area, which is the plant boundary, would not 22 likely to see any sienificant construction imoacts. That l 23 was the theory underlying, for example in number 9, why, we I 24 didn't have.the same qualification in 9 as we did in the wrees nwonm. nee. I 25 ' ocher one. 1174 099 l

30 mm28 1 And I think we tried to draft the other ones in a 2 i similar fashion so that we in some other fashion ruled out I i 3) construction impacts. 4 That was the concept. Hopefully we did it right. 5 That was the intent. l 6 COMMISSIONER AREARNE : You, at least, tried to be 1 i 7' consistent. MR. MALSCH: We tried to be consistent, that's right. 3l. 9' COMMISSIONER AHEARNE: In the question of radiographers 10 where you have categorical exclusion, is there an underlying il concept there that an impact upon a small set of individuals 12 doesn't require an assessment, whereas impact if it is on a 13 larger set, there is some th,reshold on the number of people? I Ithinkthatisadoubtfulproposition.l la l MR. MALSCH: 15 l I don' t think we can itemize something like that. i i l l 16 l COMMISSIONER AHEARNE: Well, given that we know that 17 a number of radiographers end up getting overexposed, I was is, just curious as to the justification. I 19 l MR. MALSCH: The justification I think relied upon I 20 the fact that for the most part exposures were within licensed 21 limits. I 22 Now let me mention that we were very careful, 23 though, in defining this whole category of categorical exclusions 24 We reserve ourselves the authority to do either appraisals or AceJeceral Aeoor*ers. Inc. 1171 100 25 EISs.

31 i 29 1 COMMISSIONER AHEARNE: I understand. 2 MR. MALSCH: And frankly, I think that will be i 3I essential to save a lot of these categorical exclusions, I 4 because there are clearly going to be some items in a lot of 5 these categories where anybody is going to look at them and 6'

say, "Oh, my God, you have got to do at least an appraisal."

i 7i And that may be true for some radiography licenses. i 8! I don't know. And because of that and only because of that, i 9 we thought we could get along with a justification that l l i 10 ; was general. We relied upon general practice or general li compliance or generally a good record. Otherwise there wouldn't. i 12, be any hope because in almost all these actions there is going l i 13 l to be at least some licenses for whichthe justification is I i i 14 ' not going to hold trae. l i 15 ! COMMISSIONER AHEARNE : Was the general philosophy to 16 try to provide a list which would encompass all of those cases i U where under the previous Regs you would have made a finding of 5l no significant impact, and so therefore at least you have got 19 all the cases where you might want to reach that conclusion 2C and you always have the provi: ion you mentioned, that you i j 21 1 could do an assessment. I 22 MR. MALSCH: Well, with the exception -- you know 23 l we did review all the old categories, and we immediately 1 24 l removed from the old catchall, do-nothing category, anything csJaderal Reporters, Inc. f 25 j that the staff really thought might be significant. We then i174 101 I i

32 i nm30 i tried to see what we could do by way of categorical exclusions 2 for the remaining categories. And we clearly had not got as t 3; broad an exclusion considering the categories all together I as we had before. 4' I 5 But I'd say most of the actions which we previously l 1 i 6; had put in this do-nothing category are picked up in the i 7l listing here. However, for the first time you see an attempt } i I 8, to justify the exclusion. There was no attempt to justify that ; I i 9! under prior regulations. l l I 10 i The other one that -- exclusion that might provoke i 11 a lot of controversy is the one on Section 274 agreements. i l 12 i Just entering into or amending agreements m'll say is cat-l 13 f goricalh(excluded. f l I l 14 The justification we gave there is the argument l 1 l 15 the staff at least has always used to say it wouldn't do l 16, assessments or impact statements. And in fact when I think we i 17 made an effort to do a kind of assessment on the recent is ; Rhode Island agreement and what we came up with was essentially, i 19 the same as what we come up with here as a categorical l l 2C ; justification. 21 i The difficulty is that the justification you come 1 22 up with under an agreement is a very general kind of thing that 1 23 l looks exactly 3ike this. And the thought was that if that is i 24 the best we can do on an individual agreement, it doesn't AceJederal Repor*ers, Inc. make any sense not to make some kind of gencric decision. 25l 1174 102

I 33 l l ~ I _.a 31 But again, if something came up and there was l 2l reason to do one in a particular case, the regulations give us 3' that flexibility. Interestingly enough, CEO didn't comment adversely 9 5 on that particular exclusion. I would have thought they might 6 have in view of their prior involvement in some litigation on 7 1 uranium mills. But they did not. I I I 8: COMMISSIONER BRADFORD: The inclusion of it at this i I I t 9' point I assume does no more than continue the existing practi c e i 10 until we have the comments back and decide what to do about it? MR. MALSCH: Correct. i COMMISSIONER AHEARNE: Yes, the recommendation is I i I3 ' continue with existing regulations until the final action -- l Id MR. MALSCH: That is right. But also, on this i 15 l particular one,the idea that this is excluded is consistent 16 ! with our present priorities. COMMISSIONER BRADFORD: Marty, how would that apply to a decision not to continue to concur in an agreement, in II 19 - l effect to withdraw an agreement? i l 20 MR. MALSCH: We didn't address that. I thinkthe 21 ! idea was that would be in the nature of some kind of enforcement' I 22 l action, probably be excluded altogether. i i i 23 l But I think we would have to face that when we did 24 I I it. I'm not sure whether we really would want to do an Ace Federal Repor*srs, Inc., i 25 ' assessment of something like that or not. 74 103 i

34 l i n32 1-If you had a particular infraction situation i 2i confronting you, which you probably would in a situation, it i l 3 would be a lot easier to do an assessment than you would 4 looking at a program prospectively and trying to decide what 5l the impacts are. So that may be a little more amenable to an i 6 assessment than just entering into an agreement or amending one.' 7!, So I don't know. I l i 8~ But the idea was that that would probably be co'.ered I 9 by the overall exclusion for enforcement type action. l 10 1 of course if we took over, if we revoked an agreement I I l and took it over, then we would be issuing the license and 1 1 12 they would all be federal actions and the whole licensing area ; i 13 l in the state would now be subject to this Part 51. l i

2) you could probably argue that quite apart from 14 I 1

1 15 ; the fact this is kind of an enforcement action, the net i 16 effect of a takeover can't be any adverse environmental I '7 impact because then it brings into play the whole federal 18 : legal process. 19. Okav. Let me just conclude by mentioning, going 20 briefly over the comments we got from the Council on 21 Environmental Quality. The ones we just got, t 22 l COMMISSIONER KENNEDY: The ones we received today? l . 23 l MR. MALSCH: Today. 24 l Et had sent paper over to them I think in early AceJederal Reoorters, Inc. l 25 l August. You know, they have had the paper for some time. We I i174 104-

35 33 1, had been calling and asking -- 2l COMMISSIONER KENNEDY: I don't suppose there is 3 any connection between the fact that we were going to have l 4j this meeting today and the fact that we got the letter today? i 5 MR. MALSCH: I can't imagine why there would be. i 6' COMMISSIONER KENNEDY: I am sure there isn't. j 7' COMMISSIONER AREARNE : I trust your insight into the i development of the regulation is a little bit better. a! l 9! COMMISSIONER GILIMSK'?: Tell us about the letter. l l 10 { MR. MALSCH: Okay. I i il They had ten specific comments. The most important 12 thing I think generally about the letter is that diey 13 did not tell us not to publish the regulations for comment, 14 which is what the proposal was. And as I indicated before, they ' i I 15 l do apparently expect us to publish the proposed regulations by i l 16 j October 10th. i 17' They did say as a general matter the staff did a l

5,

good job. They did say these are preliminary views, and i. 19 il they would only of fer final comments af ter we publish the 20h proposed regulations. I 21 l Now specifically -- i 22 lg COMMISSIONER AHEARNE : May I ask you a question on 23 that, Marty. 24 They really say that they won't provide comment ac.seeerai neoor ers, ine. ! 25 until we do our final action. Iwasalittlepussledby)M t. }}7k

36 um34 1 I had thought that they would be one of the groups providing 2l comments when we put these out for public comment. But their 3l sentence is that Council final review ill be made af ter the i 4' public review and comment process. l t S! MR. MALSCH: I think that their plan is to become 6l involved wit development of the regulations on a consulting i 7l basis, given these comments, which is to consider as a comment 8; in the comment process. l 9 And I guess the plan would be that what we ought l 10 to do is do pretty much what we have done with this paper, li namely receive comments, analyze them, prepare a revised 12 regulation with a preamble and a comment analysis, and send it ~ 13 to the' Commission; at the same time send it to CEO for l 14 comment. i s And I think we would get a comment right back that ould look something like this, I suppose. 71 I think that is what they have in mind. I think ,4 ' 'd 'l -s

S '

they generally do want to be helpful, and they would like to d c 19 3 see us come up with this collection of regulations that are -- d e 20 q implement as many of their regulations as possible. And they 1 ,G,.f 2 *. have in mind a grand design whereby all agencies are subject . v; Ik ft 22 to this uniform set of regulations, which as a general chjective ?j9 '-lI # 23l is a good idea. And they would like to pursue that. 24 COMMISSIONER AHEARNE: Yes. AceJeeersi Reporters inc. 25 ; MR. MALSCH: Let me briefly go over the ten l 1174 106

37 mm35 1 specific comments. 2j The first one is they had difficulty with our 3 reservation regarding 1502.14 which requires substantial i 4l treatment to each alternative considered in detail. I I i S: Now the reason why we reserved on this was explained ' '6' in the prior Commission paper. Namely, we were concerned that ; 7, this was not consistent with existing case law on the rule l l 8 of reason and would require us to change our present i 9 practice of doing alternative site reviews for power plants j 10 based only on reconnaisance-level information. Il Now the Commission has before it a separate paper on 12 the subject, a whoh new collection of regulations that would l i 13 deal with t he alternative site review process. 14 f And I think that is the place to take up this I 15 _ particular kind of issue. It is my belief that given what i 16 CEQ says here, namely that they do intend this statement be 17' read along with the existing case law and rule of reason, that 1 id. what the staff has proposed in this other paper is probably i i 19 consistent with the requirement to give " substantial treatment l l 22 l to each alternative considered in detail." 21 But, it is an issue treated in some depth in the I 22. other paper. I think the recommendation in the paper here is l 23l that the Commission consider this issue with that paper, rather, 24 l than with this one. .~.,., a.-.,. m. j 1174 107 25 I think in the end we will come out by saying that

38 4 I i; the regulation on this point by CEQ should not cause us any am36 1 2l difficulty. The second and third comments deal with our 3 i t reservations dealing with information gaps and the obligation 4; \\ l 5 i to do a worst-case analysis. l i 6; We don't think that their regulations on this point I 7l are consistent with existing case law despite their saying to e I I 8 - the contrary here. But beyond that, the staff had a lot of 9' difficulty imagining exactly what a worst-case analysis is in I some sitte.tions. And further, this is all tied up with the 10 l 11 issue of should we consider Class Nine accidents. 12 And the thought in t he paper here was we just 13 couldn't decide that generic question in this paper. We would i 14 just have to reserve on it. And I think that is still a good i 15 recommendation. 16 It is a matter that's addressed directly in the t Muller Siting Policy Task Force, for example. 1

3 ]

COMMISSIONER AHEARNE: I would like to get back to Il 19 that after you have finished these ten. I 20 MR. MALSCH: Okay. 21 Number four is a comment that we should provide for 22 discretionary preparation of an EIS in all cases where we 23 have independent authority and not mandate that in all cases. 24 And in fact, looking at the letter we sent to CEQ -- Ace Federal Reporters, Inc. l 25 COMMISSIONER AHEARNE: I was pus: led by our letter i174 108

39 mm37 1 where in two places there we said we reserve the right. Where i 2! the regulations end up saying we will. i 3 MR. MALSCH: I think frankly we ought to modify the 4; regulations to say we reserve the right. That would not only l i S. accommodate the CEQ comment but also be more consistent with 1 6 the letter we sent to CEO. I think that was inadvertent on 6 } 7i our part, we should have reserved the right rather than a impose on ourselves the obligation. 9 COMMISSIONER AHEARNE : And there was a second one 10 ! also, wasn't there? On making the final decision. t il Similarly in the letter we sent it was more reserve i i 12 the right. i 13 MR. MALSCH: I'll have to check. i I 14 COMMISSIONER AHEARNE: Yes. We said in our letter, 15 l NRC reserves the right to make -- and what we say here in l l 16 the Reg is, the Commission will make a final decision. 17 MR. MALSCH: I think there again we should modify 3 is j the paper to be consistent absolutely with the letter. Il 19 Number five is just the CEQ comment that they i 11 20 really wish you would adopt their regulation on any action 21 i requiring an EIS, and we discussed that a little bit here i 22 before. 23l Number six is a criticism of our proposal to 24 l categorically exclude all Commission actions related to es Federal Reporters, Inc. { 25 ! safeguards and physical security. i174 109 l t

40 mm38 Now two comments on thar. First of all, we did not 2l exclude all actions. We only excluded license amendment actions. We clearly -- the regulations clearly require at least appraisals 3 i and depending upon the appraisals, impact statements for generic 3 I 5! safeguards regulations, like amendments to Part 73. S we are only talking about license specific 6l, 1 1 7; safeguard actions. For example approval of safeguard plans and ; I Bli the like. i i i Now again I think that the Council's views dating 9 back to ' 75 which they refer to are probably reference to the 10 l very early letter we got on GESMO back in '75,saying you need

j I

i to do a full environmental impact statement, and don't split j; 1 _ l it up and look at socio-economic and civil rights kind of 33 i 34 l' impacts, which would go directly to a proposal if we had made l i ne, to exclude safeguards regulations, which we are not 15 e l 16 ; excluding. I don't think that their comment in '75 is clearly g applicable to the kind of exclusion we have here, which is ...n s l much more limited in nature. i jg, I i New beyond that, again this is one of those areas in 7* : which I think reasonable minds might differ. I think what we 21, i 22 l have got here is a reasonable, rational basis for an exclusion.: And the proposal is, let's publish it for comment and see.what : 23 1 we get back and then reevaluate it then. 1174 i10 24 1 ACE E9deral ROQQrt9ft, IDC. I 25 For the most part, the kinds of actions here would l

41 1 i mm39 1 probably entail not environmental impacts, but economic and 1 2l social kinds of effects. And seems it does say in the I i 3' regulations that these kinds of effects alone are neve r grounds i I 4j for doing a full EIS, it may presumably be grounds for i 5 ! doing some kind of an appraisal. So, at least on those grounds, i. 6l the kinds of amendments we are talking about here are slightly 1 7l different than the usual kinds of amendments you would see l i 3, dealing with effluents or power levels or accidents or designs 9' or construction. 10 Pretty much the same goes for the comments on il number seven. I think we have got a rational basis for 12 excluding them, but reasonable minds might dif fer on this. 13 And the recommendation was, let's put it out for comment and i 14 see what we get back and reevaluate it on the basis of comments. 15 l Number eight, I think is a misreading of the 16 regulation. The exclusion they are talking about here is one

7-that only deals with materials licenses, and it is quite clear

3,

that we are not excluding any reactors in any or the categorical i 19 J exclusions. In fact, under our regulation a research reactor

c is specifically subject to a minimum appraisal.

So I think 21 they just misread the regulations. 22 Number nine, again it is a little misleading. We 23 ! did not exclude from NEPA review decontamination, decommissioning 24 and reuse of facilities. })74 lll 'ce Federst Reporters, Inc,l 25 What we said was that they would be subject to an

a 42 '40 1 appraisal. And the idea was that as usual you do appraisals i 2; to see whether you want to do an In any case., 3 in these categories if on the basis of an evaluation there l 4; appear to be significant adverse environmental impacts, we i l I S do an impact statement. I 6' The staff wasn't prepared to say that in all i i 7l cases every action in these categories require a full EIS. i i a Eut it isn' t quite accurate to say we are excluding these from I I 3 9 the NEPA review. We are clearly not doing that. I 10 MR. KENNEKE: Marty, may I ask a question? i 11 Why is it clear that environmental assessmants

2 might be done?

Is that optional? t l 13 1' COMMISSIONER AHEARNE: You only have three categories, i l 14 It is an EIS, and EIA or it is categorically excluded. 15 j MR. KENNEKY: It is categorically excluded. l 16 - There is an option, nevertheless to do it. 17 MR. MALSCH: There is also an option in the sense

3,

that if you look at something, the record for whichthe i

9d regulations require an appraisal, you decide right away it is ll 22,

an EIS, you can go directly to an EIS and not go through "be i I 21 i trouble of doing a separate document. And that would be true i 22 l in these categories also. l l 23 l COMMISSIONER AREARNE: I think Al's point was, why 24 I not put it down in the categorical exclusion and then look at it se..s.eer.: neporws ine. ! 25 to see whether you need an EIA. Ar4 I would imagine the i i174 112

l 43 i .nm41 I answer is that this is an area that falls on the other side 2 i' of that gray area. 3 MR. MALSCH: The thought was, these are the kinds i d! of things that are highly controversial. It would just not i 5 be reasonable to pretend that these things normally do not I t 6 require any environmental review whatsoever. Normally they 7! wo uld. i i 8 Number ten, I have pretty much the same response. 9 The idea was if you put them in the category which would i 10 require an EIS, it will be impossible to downgrade it to an i Il appraisal. Bu* you can always upgrade an appraisal to an EIS. 12 So there really is not much harm in listing actions i i 13 ! and requiring appraisals for them as opposed to requiring full i Id EISs. I think we only require full EISs in cases where we i 15 l really are sure that tha' is what we would be doing. 16 COMMISSIONER GILINSKY: Al--does that pretty well cover your presentation? M A1, you had some remarks. 3' COMMISSIONER KENNEDY: I had a couple of questions. 20, COMMISSIONER AHEARNE: So did I. i 21 ! COMMISSIONER GILINSKY: I wonder if I could let Al 22 have a chance to make a couple of comments. 23 MR. KENNEKZ: The most significant point we were 24 l making was, our thought was that you, the Commissioners, i AceJederal Reoorters, Inc. 25 should look at these categorical exclusions and decide whether 1174 ii3

44 I mm42 l your feeling was that they were excluded at the right point, 2 or perhaps some more should be added or dropped from the list 3l before going to public comment. 4 COMMISSIONER GILINSKY: Even at the proposed rule Si stage? 6 MR. KENNEKE: Right. i i i 7 You tend to bias the outcome. i t 8I COMMISSIONER AREARNE: I agree with Al in the l 9 sense it is certainly true, it would be a lot harder to add 10 ! categorical exclusions at a later stage. It is a lot easier II to take them out. I2 I COMMISSIONER GILINSKY: You believe certain i 13 categories should be excluded at this stage? Is that the point; I4 you are making? i 15 l MR. KENNEKE : There was some serious doubt, I think,i 16 l in some people's minds. State agreements, the amendments, 1 II' the safeguards, transportation -- in light of other things you IS : have on your agenda, you might wish to decide -- 1 I9 COMMISSIONER GILINSKY: You would exclude them now? f n l MR. KENNEKE: I think that is the proposal. And, ^ I 21 as Commissioner Ahearne says, you can go back and drop the 22 exclusions, depending on adverse comment. 23 COMMISSIONER GILINSKY : So that is your proposal? })74 i4 ~ MR. KENNEKE: Right. Ace Federal Reporters, Inc. 25 COMMISSIONER KENNEDY: Marty's proposal is to drop them

4S I before we put them out for comment. mm4 3 2 MR. KENNEKE: Marty's point is that you propose 3l them and if somebody seriously objects, you can drop your i 1 4l exclusions. 5 COMMISSION 2R KENNEDY: I understand that. 6l COMMISSIONER AHEARNE: If you agree. 7! COMMISSIONER KENNEDY: But your point was i 3 MR. KENNEKE: You would want to think about it I 9l first. I 10 l COMMISSIONER KENNEDY: Your point is suggesting i i they be dropped now? _That's the way I read the paper. 12 MR. KENNEKE: Dropping those exclusions or added? 13 COMMISSIONER KENNEDY: Drop. I I I Id MR. KENNEKE : Dropped. Righ t. i 15, MR. MALSCH: The difficulty with dropping them is, I 16 you have got to get comment on putting them back in. So you I7 can always drop them, but if you want to add one, you have I3 to go through another round of public comment, i I9, In the meantime, the staff is going to have to do 2C l appraisals and devote the resources. 21 You know, we tried to be careful and it was really 22 a struggle to come up with these categories. I think what we 23 ! have got is something that is reasonable. Some of them are 24 l going to be controversial, and maybe the Commission on Ace Federal Reporters, Inc. ! 25 l 1 reevaluation might not want some of them. But our thought was, i l 1174 115

t 46 l l I let's at least put them out for comment and find out what happens. mm44 2! MR. KENNEKE: And I think all you have to do is 3 qualitatively look through the list and make that judgment. 4l COMMISSIONER 3RADFORD: Do you two agree or disagree? 5 MR. MALSCH: Disagree. I 0 COMMISSIONER GILINSKY: I must say I'm not clear 7! either. I i i 8 MR. KENNEKE: We differ in the sense that we i. 9! would suggest that you all look at the qualitative list of 10 li categories and decide whether you feel they should be on the i l list now or not. 12 COMMISSIONER GILINSKY: But, do you have any view? 13 MR. KENNEKE: What I think Marty is saying, rest l l Id ! assured, you can go with the list -- 1 15 l MR. MALSCH: Oh, no, I'm not suggesting you shouldn't I 16 look at them. I think you ought to look at the categories and see whether you feel comfortable with them. l I guess what I am suggesting is you adopt a kind i 9 i of medium threshold for decision and not refuse to publish a 'l ,e^j category just because you have a few reservations about it. I 21 If you are really uncomfortable with a category, I think it 22 is certainly within your authority to drop it. 23 COMMISSIONER KENNEDY: As we discuss these -}l7k 1ib 2# categories, can we refer to page 7. Aes F.eersi neoorms, inc. 25 Any revision in those categories to eliminate some i i

47 'n45 1 of them is going to have an effect on that 56 manyears, per n_ 2 year. l 3! COMMISSIONER AHEARNE: Could you first explain, on 4 the 56, is that what NMSS estimated prior to any of the 5' categorical exclusions, and therefore with the existing 6 categorical exclusions that number is now some lesser number. 7 MR. MALSCH: I think that is right. 8 Maybe there is someone from NMSS here you could. i 9 ask. Lee Rauss, I thin'<. he helped us put together some of i 10 ' these figures. I i MR. RAUSS: Lee Rauss, Division of Fuel Cycle. 3 12 The answer is yes, the numbers on page 7 were if i l 13 all of the categorical exclusions were croshe'd out. l 14 COMMISSIONER AHEARNE: With them in, what is the i 15 right number? 16 l MR. RAUSS: T hat is still under assessment, 17 particularly with the radioisotope licensing. IS COMMISSIONER KENNEDY: This is referred to on page i 19 l 13 where it says we just don' t know. 20 COMMISSIONER AHEARNE: But the approximate feel i 21 is half of that? 22 MR. RAUSS: I have with me Danny Miller, chief of 23 the radioisotope licer. sing. Perhaps Danny could help you. 24 COMMISSIONER KENNEDY: Is it half of the 56 or a co Federal Reporters, Inc. jjJ,j }jf 25 third, three-quarters? In round numbers,

48 f_ mm46 1 MR. MILLER: Would you state the question again, l 2 ! sir? i 3' COMMISSIONER AHEARNE: The question is, we have i 4j got on page 7 a question that it would be 56 manyears associated 5 with doing the environmental assessments. And as was pointed 6 ! out a minute ago, that's assuming there were not categorical 7' exclusions. 8 The question is, with the categorical exclusions 9 that are now in these proposed regulations, what is the number? i 10 : In just round numbers, is it half of 56? II MR. MILLER: It is a small fraction of that, sir. 12 I don't have that right at my fingertips. I 13 COMMISSIONER AHEARNE: Would you say something like l I 14 l a quarter, then? i 1 I MR. MILLER: I would say it is something about ten 15 l 16 ;

less, ten manyears less.

U COMMISSIONER AHEARNE : Less than 56? 13 MR. MILLER: Right. l 19 COMMISSIONER AHEARNE: So you are saying it would i 20 be like 46? 21 COMMISSIONER KENNEDY: It would be 46 anyway? 22 MR. MILLER: Yes. 23 COMMISSIONER KENNEDY: Then if all the categorical 24 exclusions now in the paper were eliminated, there w pld b l k t Ace Feders Reconen. Inc. 25, 10 mo re, so it would be 56. I i

49 mm47 1 MR. MILLER: That is counting -- now I am only 2l speaking for material lic.. sing for the 50. I 3; COMMISSIONER AHEARNE: But you would expect to have l i 4' to do about 40 manyears even with these exclusions? 5a MR. MILLER: That's correct, sir. l I 6{ COMMISSIONER KENNEDY: So it should be recalled for 7 the record that we are talking about 46 manyears. 8 Now I have another question for the Executive 9 Director. 10 ; How many of those 46 manyears or 56 manyears, 11. whichever the number may turn out to be, are now devoted to i t !2 that purpose? l 13 j COMMISSIONER AH EARNE : Or are budgeted. l t 14 l MR. GOSSICK: I'd have to turn back to Danny Miller. I 15 ! Do you know? I i 16 ! MR. MILLER: No. l 17 ; COMMISSIONER KENNEDY: Let me put the question

a i differently.

l 19 ' How much of an increase in manyear expenditure does 20 ; this represent over our present way of doing business? r i 21 MR. MILLER: I'd have to do a little calculation 22 there, sir. I would have to count the number of reviewers I 23 have currently. 24 COMMISSIONER KENNEDY: Sort of roughly? Ace Federal Reporters. Inc. 25 MR. MILLE R: Sort of roughly, I would say maybe 30 1174 119

50 ' ' mm48 1 manyears. 2 COMMISSIONER AHEARNE: Increase? 3' MR. MILLER: Yes. 4 COMMISSIONER AHEARNE: Are those in the budget? 5' That is prospective budget? 6 MR. MILLER: Prospective budget, not counting i 7 doing any EISs at the moment, just to do our normal license 8 review. I 9I COtIMISSIONER AHEARNE: How about this increase? i I 10 l I think you just said this would represent about II a 30-manyear increase over what you -- 12 ! MR. MILLER: Counting my present staff, yes. l 13 ' COMMISSIONER A HEARNE: In the FY '80 budget, or the I l Id ! FY ' 81 budge t, are those 30 in there? I I i. 15 MR. MILLER: Yes. i 16 ! COM51ISSIONER KENNEDY: The extra 30? U' MR. MILLER: No. It is just now current staffing. IS i So we have not included -- i l9 ! COMMISSIONER AHEARNE: So FY '80 or '81 budget has l 2C ! not got embedded in it the assumption about these regulations? i 21 I MR. MILLER: That is correct. i 22 COMMISSIONER KENNEDY: So we are somewhere between 23 30 or 40 people short, a not inconsiderable namber of manyears. 24 I think the record should be very clear on this that whatcver ac.ree.r.i neooners,inc.!ecision the Commission makes 25 d and indeed I think it should be s 1174 120 ;

51 9 f ' mm49 1 noted in the statement of considerations the goes out with 2' this proposed rule, that those additional costs are going to 3; be incurred under the current proposition in this rule in terms i l 4' of manyear expenditures. 5i COMMISSIONER GILINSKY: What does that stem from I 6l principally? 7' MR. MALSCH: You mean which kinds of licenses? 3 COMMISSIONER GILINSKY: Yes. l l 9 Where are the principal increased requirements that l 10 l lead to these instruments of manyears that would be required i 11 if the rule were adopted? 12 MR. MALSCH: I'm not sure. 13 All the ones that I would have thought -- as far I 14 i as I am aware, we have excluded all the major kinds of l 15 l license -- typical kinds of license activities in the i 16 categorical exclusions. There can't be that many left -- '7 COMMISSIONER GILINSKY: I wonder -- sorry to cut is ; you of f there, but there seems to be a certain amount of I 1 19, uncertainty and confusion on this point. I wonder if we i i e could get it resolved soon by having the persons involved 20,i I don't think I want l calculate in the calm of their office. 21 ' 22 ' to -- 23 ; MR. GOSSICK: All right. 24 COMMISSIONER AREARNE : That's true. AceJederal RP Jorters, Inc. 25 COMMISSIONER GILINSKY: I don't want them to work i174 121 i

52 I s i < "m50 1 on the basis of estimates preparad hurriedly. 2l COMMISSIONER KENNEDY: There are detailed estimates i 3j stated here in the paper and they include other categories 4 of activity, l I COMMISSIONER GILINSKY: But let me ask you, would S 6 that affect your decision about publishing the rules for 7 comment? 8 COMMISSIONER KENNEDY: Not at all. Well, I said that i 9l I want that included. I want the public to understand when it l 10 j is commenting on these rules, the impact t he rules have in il terms of workload and costs. Because it is the very public 12 ; that is being asked to comment on the rules who is going to i i 13 pay those costs. And they ought to understand that. i i 14 And they ought to further understand if they don't l 15 like the categorical exclusions, that that will represent l 16 an increase, a further increase, and therefore a further 17 i cost. 15 i, If that is what they want to pay for, splendid. 19 ' But I think they ought to understand that and they should not 20 be under any misapprehensions in this regard. 21 COMMISSIONER GILINSKY: I think we ought to i 22 develop estimates that we feel are sound. 23 COMMISSIONER KENNEDY: Exactly. 24 COMMISSIONER GILINSKY: And that we are prepared to aseerni meooners, w. }j]k k 25 announce. i

53 1 COMMISSIONER KENNEDY: Exactly. mms 1 2f COMMISSIONER GILINSKY: I am inclined to break at 3 this point. 4 COMMISSIONER AHEARNE: I have a number of questions l 5' still that I at some point wish to get addressed. j 6 COMMISSIONER KENNEDY: I have a number. i 7 COMMISSIONER GILINSKY: Why don't you state them 8 and let's see where it takes us. But, I would like to -- us 9l to have an opportunity to have lunch. I developed that bad i 10 habit somewhere along the line. II (Laughter). 1 12 ' COMMISSIONER KENNEDY: Since all the parties here 13 are going to be here, I suspect, physically in the building I I4 this afternoon anyway -- isn't that correct that the meeting 15 l is this afternoon -- except you? 16 MR. CUNNINGHAM: If requested I'll be here. I7 COMMISSIONER KINNEDY: All the others are going to 'c ; be here anyway. Maybe we could just break now and open the i I9 meeting this afternoon with just a continuation for 15 minutes 2C I of this one. 21 l COMMISSIONER AHEARNE: I think we have a budget. 22 COMMISSIONER GILINSKY: We have a meeting at 1:30 23 with the Executive Branch. 1174 123 24 COMMISSIONER KENNEDY: I don' t have any other Ac.Jeoersi Aeoort.<i. inc. 25 options.

l 54 / mm32 1 COMMISSIONER GILINSKY: Raise your questions. l 2l COMMISSIONER AREARNE: You don't have to answer l 3 them. I will just give them to you. 4 There is a comment on the July 30th date on page 10,. 5 and then referenced later. And I really don't -- page 12, 6 rather -- I really don't understand what your July 30th, '79 'I date being embedded in there is for, and I don't really i a: . understand why you retain that date at this stage. I i 9 The worrt case issue. I do have a problem in some l 10 sense that I think that in light of the Three Mile Island i il ' series of events,the statement that you have under NRC's i 12 current risk analysis practices, the consequence of accidents, i i 13 l this likelihood of occurrence is remote, are not given l 14 detailed consideration except in unusual cases. l i 15 l At some point we might want to rethink that kind 16 l of phrasing. 17 Tne relationship between the emergency exemptions isj of 51.13. And then there is a very broad exemption authority 19. in 51.16. I'm not clear on how those two relate. And it almost I i 20, seems like one is subsumed in the other, and I am not really 21. sure why they are both sitting there. I 22 You have a statement that our policy would be to 23 follow CEQ regulations insofar as Subpart A doesn' t spe 'fically I reallysure'fh~ 24 t cover areas that are dif ferent. And I am not }}74 24 sc. F eere amoners inc. 25 all of the implications are of that, i

55 I 13 1j What are we adding by saying we will follow that i 2 other than some legislative procedures. 3i Discussion on the criteria for the EIAs, given 4 the fact that the universe consists of only three things, I'm 5 not sure what is added by then going down through a list of t l 6l various things on the EIAs. l l 7! And I guess a final comment on EIAs, we have in I l 8 here that we will do EIAs in amendments to rules. We list the l l 9; specific sections of the rules c which these are amendments I 10 i as part of them. And I am not sure if there is some ii ; circular process we should be following. 12 ! Do we have to do an EIA on these amendments? 13 I guess that's it. f 14 COMMISSIONER KENNEDY: I had one or two. 15 l COMMISSIONER AHEARNE: I guess I will write them all i l 16 i down and give them to you. '7' MR. MALSCH: Okay.

5 jl COMMISSIONER KENNEDY

I won't have to. 19 The bottom of page 4 of the memorandum, it says l r 20 ;' though Subpart A does not include certain implementing i 21 procedures, since there appears to be no reason not to follow 22 CEQ procedures with respect to legislative proposals, special i 23 NRC implementing regulations are not needed. 24 Does this mean then that despite all our protesta-ice Federat Aeoorters, Inc. 25 ' tions to the contrary, we are saying we are adhering to any 1174 125

56 I i i t_ mms 4 I CEO regulations? 2l My understanding has been that although we may 3 accept their view as a reasonable one from our perspective dj for those purposes, we have included the language verbatim i 5 from their own proposals in our regulations. This suggests I 6 to the contrary. This suggests that we have not included in 7 our regulations -- we simply say we are following the CEQ 8f regulation and that is not consistent with my understanding. 9 COMMISSIONER AHEARNE: And that's part of my problem 10 i in understanding what it means by when we say that insofar as it is not addressed by Subpart A we will follcw the i

1. 2 regulations.

i ~ I3 ! MR. MALSCH: On that one we did review all the I Id ! regulations, and the idea was that insofar as we said, 15 insofar as we were incorporating them at that point, that was i 16 i a voluntary decision on our part and we really indended to II mean the same thing on the bottom of page 4. I5 COMMISSIONER KENNEDY: But my understanding was I9 that when we voluntarily incorporated, we incorporated them in 23 our regulations. That's what I thought we were saying. I 2I l MR. MALSCH: Okay. 22 COMMISSIONER KENNEDY: That's what I thought all 23 this time our intention was. 24 MR. MALSCH: And in fact we did that for the most ceJeeerei nepenen, Inc. ! 25 f part. The general -- the footnote on page 4 and the one that l174 126

57 1 , ' ' mm35 1 Commissioner Ahearne referred to was a catchall, because we 2 had not -- there were some provisions in here that we just 3j did not repeac. 4l COMMISSIONER KENNEDY: Why not? I l 5! MR. MALSCH: Just for brevity purposes. i l 6 l, It was already getting to be 135 pages long. i i i 7i COMMISSIONER KENNEDY: How many additional pages I 8j would that have meant? i 9j MR. MALSCH: Probably about another, just a guess, 10 ! 50 pages, perhaps. i Il COMMISSIONER KENNEDY: 50 pages? i i 12 MR. MALSCH: Yes. i i i 13 l COMMISSIONER KENNEDY: Then my understandin g about l l ~ 14 ' the character of these regulations is totally different. I I, 15 Totally different than what I came in here this morning with. I 16 ; So I will have to discuss that further. 17 COMMISSIONER GILINSKY: Let me ask, do you feel a l 13 need for a further meeting on this? l 19 COMMISSIONER AHEARNE : I don' t need a further i t i 22 : meeting. What I will do is write down my questions. 21 ! Now, do they go to ELD? I l 22 COMMISSIONER GILINSKY: I would propost that Marty -- 23 it involves a certain conflict of interest, but I think it 24 ' might be simpler if Marty dealt wi"5 the Commissioners ' ca. Federal Reporters, Iric. 25 l offices individually, and also received from the Executive I i

58 i " mms 6 ( 1 Director, an estimate of the resources required to carry I 2 out these -- comply with these regulations and suitably 3 incorporate that in.a statement of considerations. I COMMISSIONER BRADFORD: I have one short request. 4l I 5! There are three other items in the OPE memo, and it notes at t 6, the end that OGC concurs in them. I 7' If you do I assume that there would be modifications l 8 in order in the draft reg itself in those areas. i 9 Do you want to incorporate those? 4 l 10 l Well, beyond categorical exclusions, NEPA review, I 11 official public involvement and distribution. I 12 j MR. KENNEKE: There it was a question of choices, 13 as I recall, which ones you preferred. 14 MR. MALSCH: When I read the. OPE account I didn ' t I 15 ; feel strong one way or the other about some of those comments. i I 16 i COMMISSIONER AHEARNE: What specifically are these l l I now that you are referring to, Peter? 17 i

3 l COMMISSIONER BRADFORD

Well, page 2 and 3 of the OPE i

19, memo, and then a notation at the end that OGC concurs in it. I 20 COMMISSIONER KENNEDY: Is that you or somebody else? l 21 (Laughte r. ) 22 MR. MALSCH: I asked someone who was not involved, i 23, separate from me,to review them on behalf of OGC, because I i 24 ' thought it would be kind of wrong for me to jump from one office Ace Federst Recorters, Inc. 25 ! to the other. 7g

59 j mms 7 COMMISSIONER AHEARNE: But what changes would be t mnde as the result of the -- 2l MR. KENNEKE : We would recommend that a staff person i be the NEPA reviewer, and that you might wan'= to conside" 3 f I' 5: involving the public at an earlier time than the rules seem 6l to suggest. And we note that CEQ -- i COMMISSIONER AHEARNE: When you say a staff person -- 7 i gl MR. KENNEKE: Well, tnere is an alternative where I someone at H Street -- 9 10 l CCMMISSIONER AHEARNE: By staff you mean -- l l

)

MR. KENNEKE: EDO staff. i COMMISSIONER AHEARNE: I thought similarly that 12 13 was essentially where this other paper was coming out. So l that is not a difference. ja 15 i But on the piblic involvement, what change were you l 16, recommending? MR. KENNEKE : I don't think we are recommending a g change other than to suggest that you would want to consider

3 I

19 whether or not this was early enough a time to involve the I g; public. I i COMMISSIONER AHEARN2: I guess my question is, 21 22 thought Peter was saying incorporate. And I am not sure I i174 129 what it is your are incorporating. 23 ;l i 24 MR. KENNEKE: The memo refers to the comments co-Federal Repo,ters, Inc. 25 : from the earlier part of the paper, rather than the lesser l l

60 mm38 comments, the categorical exclusions at that time, rather than I 2; these others which are less significant. 3}! COMMISSIONER AHEARNE: I am just having difficulty l 4l coming to grips with what it was that was going to be i 5l incorporated. l 6 ! MR. KENNEKE : I think we are basically talking about l 7' these categorical exclusions. i 8 COMMISSIONER BRADFORD: What are you talking about t-1 1 i 9 you are also talking about a dif ference between the CEQ regs 10 ! and our regs on distribution. And you are suggesting an i accelerated effective date. t l I2 i MR. KENNEKE: Right. 13 COMMISSIONER BRADFORD: Or an accelerated rulemaking) I# leading to an earlier effeccive date. i I 15 MR. KENNEKE: I must say I hsve to go back and read 16 ! that memo again. i i U COMMISSIONER GILINSKY: I wonder if these could be I5 discussed individually with Commissioners' offices, and possibly j i we will be able to handle this by affirmation if the changes I, 20 can be agreed upon. l 2I COMMISSIONER AHEARNE: But, what would be 22 incorporated? I would appreciata seeing the changes that are 23 {\\]k \\b l being -- 24 COMMISSIONER GILINSKY: Certainly. i ca. Federal Reoorters, Inc. 25 COMMISSIOtTER KENNEDY: I also would like a much I

4 61 t .nm39 I fuller explanation of this 50 page exercise. Tha: represents i I, i, 2l something like 40 percent, and that is a pretty high number. i I 3 ! It is my understanding, certainly from what I had i t i 4' read -- a misunderstanding, I recognize -- that we were 5l talking about a paragraph or two that was being excepted, l i 6 and even there I thought that was odd because that vn.1 incon-i 7! sistent with our basic posture. i i 8 Now I find we are talking about 40 pages, or 40 i 9l percent, rather. I 10 l MR. MALSCH: I would say it is only 40 pages, because the regulations of CEQ are very verbose in places. j 'l 12 COMMISSIONER GILINSKY: Well, whatever the reasons. i 13 Thank you very much. i 14 COMMISSIONER KENNEDY:- I would like to know what i I 15 it would take to put them in ours, where they ought to be. 16 MR. MALSCH: Okay. (Whereupon, at 12:30 p.m., the hearing in I5 p the above-entitled matter was adjourned.) I9 l + + + i 20 l 21 22 23l I 24 l ca.Eederal Reporters, Inc. I 25 ' }}[4 l3) !}}