ML19209D177
| ML19209D177 | |
| Person / Time | |
|---|---|
| Issue date: | 09/27/1979 |
| From: | Gilinsky V NRC COMMISSION (OCM) |
| To: | |
| References | |
| REF-10CFR9.7 SECY-79-397A, NUDOCS 7910190494 | |
| Download: ML19209D177 (65) | |
Text
,
8 _.-
4 s
+ 2 en a le.
t ii,,
N U CLE A R R EG U L ATO R't COMMISSIO N I
i i
j IN THE MATTER OF:
PUBLIC MEETING DISCUSSICN OF SECY-79-39 7 - PROCEEDING TO ASSESS COMMISSION CONFIDENCE IN SAFE DISPOSAL OF NUCLEAR WASTES i
(~
,f _
~
t Place - Washington, D. C.
Octe -
Thursday, 27 Septeder 1979 Pages 1-64 wecen.:
(2C2) 347 3700 ACE -FEDERAL REPORTERS,INC.
L n74 276 w a,yn,,,
tu Nenh C:::itel Streer Wcshingten, D.C 2CC01 NATICNWICE COVERAGE. DAILY q
,g 4g y
1
- C 37 700RDE.h1
.,. r,.,d 3
4.s 3 %
st.. L.
.. C. J. 4
_4.m 1.. 3.%.S w - 4 J.
m
..ea.4
- m. J.
. 6. o f.*.. 4.. a. A
.C. 6.s.
- a..a J
%... 4. S
.m 2.
y.
.w
- q.,w.. i. n. a
- o,3 -.1..s o.m.. 7
-.... 4. 3 S 4 m.
b.. a..t A.
m.gg6Sdav_, 2 7 S e c. ta.'..' e.- 19 74. 4.. - ". + -
w w.
w.
w..
W m W- '.==.e*
a **
"s*.
". b.. a
.,,.J.J. 4.
a g
.n.
1.*/.,
f..f
-aa.,
- y. W.,
..J e.
4.3a-w S
a
+.
w a
w
-.bSa'."*.**~.'.".."..
"..". 4. a-
~..'".*..".':.w"'.'..'.T,.
. e a..i..';'* '4 " S w" "y e **.. ~ y d.1.* *w *'.'*."a.".d.2.*'.~*
5.**.d
~ 7.. n.4..
- a. A.4. w.a. A
>.A
..,g y hgg o. % e a,,. - a,s.4 geg q A e c m.,.
a.e ~ a A,
w..-
... w s.
a
-r q
4 C.
.C.4aS.
%... e '..'." *..**. S w* *.* # "w
.'. a
.d.*. *." *..".d a d S O.'. ^.?. ';'
C, e..a.'* *..'.
."."..#~.'~.....'.'.w'..."..'
- ^ **
.y
~
-w.
71.._- yCSeS.
.'s S **Cv'A-eA ** v, 1 0 CT. 7.. :r..'.0 3,.
.i.=.
,, a.-. C.
". a
.#^-.6=.'.
^
.1. 4.
e,...
.e n A.
X a S c.4 4...J. C.. a.*..,.,,.: C.3 A,4.a.4, C.
- b. a.
..E.
.. s.
-3 J
w.
w..
a..
w..a n..C '. **"*m~a~'.*.*..'.V. **#'.*.*.~.
C.# C"y.".*.**.'.
s'.~. ',..h..' 3 '..*.'. n S w~ ~..' ' ~. 's
~
y
.~
e
.:a.,.
...4
. 4 a.
% e.' 3 a..#. S.
N. O "_ ' e * #.4 '.. ';'
C*
....s.
w.
. O..*. e.**
y" ' "y..'* ~. '. ' ' ' '*
F a
.".-.. Sed
.4m 4g 2..t T * **."
- C a.
A.'..*.e*
- 5. a"
"'. e '.'" a. G T * '. ~.
^#
^ ' "
.g 4 b.
- h. a.
dw e.4 3 a w.m.
j y..
w
.e
.s y a
- s.. gs., g.=. =.
e,., -
g.-
a.
=.
e.=e 34.
pA, b.. a..-
- 4..e. p a.g.= a a.
.s. a. b. a.
w 4
--y.
w....
w
/*.gww 4
.=.4A g.7 3.. 4 b.g
- 4. e a.
3a w...
1174 277
i 2
i i
i Dg367 1l UNITED STATES OF AMERICA o
4 2li NUCLEAR REGULATORY COMMISSION
{
i 3'l PUBLIC MEETING 4!
DISCUSSION OF SECY-79-39 7 - PROCEEDING TO ASSESS i
i 5'
I COMMISSION CONFIDENCE IN SAFE DISPOSAL OF NUCLEAR WASTES i
i 1
6 i
i 7l r
Room 1130 8I 1717 H Street, N.
W.
Washington, D.
C.
l i
'9' i
i i
Thursday, 27 September 19 79 10 !
The Commission met at 9 : 35 a.m., pursuant to notice, n
PRESENT:
i VICTOR GILINSKY, Ccmmissioner (presiding)
I RICHARD T. KENNEDY, Commissioner
(
PETER A.
B RADFO RD, Commissione 15 !
l JOHN F.
AHE ARNE, Commissioner I
16 !
ALSO PRESENT:
17 'l Messrs. Cunningham, Gos sick, Bickwit, Ostrach, Hoyle, and 18
- Dircks.
i 19,
f i
20 ;
I' i
i 21 I
r 1
22 i i
i l
23,
24 j ],k i
...~... e.m.... s 25 '
t 1
L 3
167 01 01 O
pv MM I
PR0CSEDINGS 2
COMMISSIONER GILINSKY:
Let's get started.
The 3
subject this morning is the na ture of the proceecing that 4
the commi ssion might conduct in order to a sse ss where it 5
stands on the question of the saf e disposal of nuclear 6
wastes, the commission's confidence in the eventual saf e 7
disposal of such wastes and how that might relate to the 5
reactor licen sing proce ss.
y We have a paper f rom both the general counsel and 10 the executive legal director on this.
I take it the lead 11 was taken by the general counsel.
12 MR. SICKWIT:
Tha t's true.
13 COMMISSIONER GILINSKY:
Are you prepared to 14 discuss that?
15 MR. S ICKW IT:
Yes.
16 COMMI5S IONER GILINSKY:
We are in single-wing 17 formation here, out I think we are ready to hear f rca you.
16 MR. SICKNIT:
.ine.
This was, as you said, a 19 joint paper -- general counsel's office and ex1cutive 'egal 20 director's office -- also ccordinated with NMSS.
21 Steve Ostrach actually took the lead on it.
I will take you 22 through the most basic decisions involved in the paper, and 23 then I am going to ask Steve to go through the component 24 questions.
25 The basic issue which has to be decided here is
4 367 01 02 m
MM i
one wnich was discu ssed in pre tty detailed !csnion at the 2
last meeting on this suoject, which is, casically:
Do you 3
want to have a board or some other subordinate entity 4
concuct the basic aspec ts of thi s proceeding, including a 5
hearing if one is heloi or do you wan: to have :ne o
comaission conduc ting all or part of that proceeding, all or 7
a major par: of that proc eeding?
e In reviewing the transcript of the preceding 9
di scu ssion, it was clear to us that a majority of the 10 commission f avored involving the commission in a major way, 11 a way unlike the way it is involved in a typical rulemaking 12 p roc eed ing, suc h a s the clearance rule, in this rule.
13 I th'..tk the basic options available to you are t 14 to consider -- to reconsicer that que stion and add to it a 15 subordinate question, which ist putting the opcions as best 16 we can, oo you want tha commi ssion to hancie pr7ceeding, 17 including a hearingi do you want a boa rd or o the r 15 subordina te entity to do i t; or do you want the cocmission, 19 as we proposed, ao you want :o divide this proceecing into 20 two stages, having a subo rdina te entity concuc t :he first 21 stage of it, a preliminary s: age, a prehearing stage and 22 have the commission if there is a hearing conduc: that or 23 any _acondary stage other than a hearing tna; might be 24 prescribec.
25 And I think, before we go through all of what we k
t 5
367 Of G3 n.
g<
MM i
have proposed here, the commi ssion ought to try to come 2
down on that particular question.
We have presented pros 3
anc cons.
Pros and cons were presented in the previous 4
meeting.
We can go through them, if you like, but to some 5
degree I think we would be replowing old ground if you dic.
6 COMMISSIONER AHEARNE:
Could you cescribe a little 7
bit about how you would see this indivicual that would be a
running thi s prehearing proce ss, pulling toge ther the 9
material?
Would you envision a special staff being a ttached 10 to him, an OP, CGC, someone tn hel p pull this together, and 11 him making a presentation to the commission?
12 COMMISSIONER GILINSKY:
3 ef ore you enswer tha t, 13 is Steve going to run through --
14 MR. SICKNIT:
Steve can run through --
15 COMMISSIONER GILINSKY:
-- His paper briefly?
16 MR. BICKWIT:
We can do it that way.
But since so 17 mucn of wna t we say here is cepencent on this thresnold 18 cecision, I think it procably makes sense for you to focus 19 on that before running through it.
2G COMMISSIONER GILINSKY:
I don't think three of us 21 are going to decide how we are going to conduct that 22 proc eeding here today.
23 MR. BICKWIT:
Tha t's your choice.
24 COMMISSIONER KENNEDY:
I don't care.
25 COMMISSIONER GILINSKY:
That's certainly our legal 1174 281
6 3o7 01 04 t.iM i
quorum of the co mmi ssion.
2 COMMISSIONER,<ENNE0Y:
I am preparec to cecide, 3
but I would like to hear Steve go down through the whole 4
panoply of issue s and options as they have been described.
5 (At 9: 45 a.m., Commi ssioner Bradford arrive s. )
.c MR. OSTRACH:
Commissioner, our understanding, 7
that the individual or presiding of fice would be assisted, 5
at least initially, perhaps by dedicated CGC or OPE person, 9
no t f ull-time cecica ted, but assigned OPE and 0G0 person.
10 The question of staf f participation is one that our office is studying in light of recent judicial decision, 12 the whole box office decision, the Hercules decision, wnich 13 may or may not be applicable to the commi ssion in this type 14 of rulemaking, anc may or may not theref ore place certain 15 constraints on the way in which staff can both be a 16 par ti cipan t in the sense we describe i t here and be involved 17 in directly advising the presiding office of the commi ssion.
IS And I con't tnink a t this time that we are really 19 prepareo to discuss what our legal conclusion is on even the 20 options that are available to the commission.
Certainly one 21 of them, if it were permissible, woulc be to either 22 a ssign --
23 COMMISSIONER KENNEDY:
Excuse me.
I f tha t's the 24 case, I withdraw my comment earlier.
25 (Laughter.)
1174 282
7
- 67 01 05 MM I
COMMISSIONER KENNEDY:
If you are no: crepared to 2
ciscuss the legal implica tions of the options before us, 3
then I guess I don't f eel preparad to make a decision as to 4
which options should be persued.
5 MR. OSTRACH:
Tha t's one narrow option, of which 6
there are two di.fferent ways it car
't a ccom pl i s hed.
If the 7
commi ssion de sire s the presicing officer to have assistance 8
of staff, tnere is no ques: ion tha t the outset of the 9
proceeding staff can designate certain indiviouals wno would 10 be his a ssistants to work with him or in addition to him and li do tnat through the proc eeding.
Then there would be no 12 legal proolems at all.
13 The only ques tion is:
Woulc staff have to 14 designate those people at the outset of the proceeding, or 15 could they wait until the end of the proceeding, and they 16 could be people who played a role in staff's participation.
17 While the legal requirement is some thing we're no t la preparec to speak abou, if the commission wisned to avoid 19 the legal question entirely, we could simply draw the line 20 at t he ou tset of the proc eeding.
21 So, the question of whether or not you wan the 22 presiding of ficer, if you should choose to have one, to have 23 staff assistants is one you can decide without worrying 24 about the legal implications, because regardless of how the 25 legal issue cuts, we can do it.
It can be cone legally.
117Li 283
8 367 01 06 m
MM i
It's only a question of whether he gets his people f rom the 2
outset or wnether they are parceled off to him at the end.
3 MR. SICKNIT:
What S teve is ref erring to is the 4
w hole issue of ex parte prohibitions in rulemaking is under 5
consiceration by cur office, and we don't f eel you have to 6
make decisions on that question, especially since we plan to 7
de presenting recommendations shortly.
6 COMMISS IONER AHEARNE:
I think we would have to 9
make a decision prior to the start of the hearing.
10 MR. OSTRACH:
Yes.
ll MR. SICKWIT:
We don't see any problem with that.
12 I just have a note nere that the chairman's admini.strative 13 a ssi s tan t says the chairman has no problem with the la commission taking ' ection today.
15 COMMISSIONER' AHEARNh The rest of the question 16 was -- cid you say that after this presiding office had run 17 the process that he or she had under way and completed it 15 tha t they would then come and give a presentation or prepare 19 a package, he re are the pertinent parts?
What was that 2C communication like that you had in mind?
21 MR. CSTRACH:
That could be done at the 22 commission's discre tion.
My personal expectation woulc be 23 t ha t cP3 presicing officer would prepare f or the commission 24 something similar but grander than what the general 25 counsel's office does in an adjudication before the 1174 284
9
- 67 01 07 MM I
commission, a summary of the brief s, principal issues, r.
2 sugge s;ec lines of inquiry.
I am assuming that the next 3
stage would be a hearing.
He wduld summarize the position.
4 to the parties as laic out.
He might poin t to potential 5
inconsistencies or the f act that one partici pant had 6
strongly attacked the credibility of a certain argument of 7
ano ther part'.cipant.
He would suggest line s the commission o
might wish to addre ss in a hearing.
9 He would also, I expect, prepare a proposed second 10 prehearing orcer, whf ch the commission itself would issue, 11 suggesting who the participants to be asked to participate 12 in the hearing would be.
13 COMMISSIONER AHEARNE:
But you did not have in 14 mino, f or e xample, a proposed finding?
15 MR. OSTRACH:
No t a t that s tage, sir, not before 16 the hearing, if the commission wants a hearing.
17 COMMISSIONER AHEARNE:
Thanks, Steve.
id MR. OSTRACH:
The overall structure we proposed 19 f or the proceeding is phase 1.
It is one that can be 20 changec as the proceeding goe s along, depencing on how the 2i commi ssion views the participa tion to date.
The initial 22 stage would be publication of a detailed Federal Register 23 notice, somewhat along ne lines of the one we attach to our 24 pa pe r, se t cut the goals of the proceeding, and lay at least 25 tenta tive ground rules for the rest of the proceeding.
1174 285l
10 67 01 08 MM i
It would provide that 30 days af ter publication of 3
2 the notice individuals or groups could file either comments 3
on the rulemakir.g in general or, if they wished a more 4
extensive role, file statemen ts of intent to particpate in 5
the rulemaking.
Their statements of intent would identify o
w ho they are, wha t their concerns are, what their qualifications are to participate in the rulemaking.
6 Folicwing that cate, over the next 30 days the 9
presiding officer, snould there be one, would work with the 10 groups of individuals tha t have identified themselves as 11 participants to attempt to achieve some con s'alida tion and to 12 schedule the next stages of the proceeding.
13 In particular, he would try anc reach agreement 14 amongst them as to the timing of the s tatements of po si tion 15 and the cross sta tements of position.
16 Since, as we suggest, we believe it would be 17 helpful if certain of the government agencies that play a 16 lead role in waste disposal, particularly, COE, gave their 19 s tatements earlier than the o ther par ticipants' statements 20 so they could be addressec, the hearing -- the presiding 21 officer would attempt to work wih the COE representatives 22 and the other recresentatives to reach some sort of 23 agreement on deadlines of filing and again, to reach 24 agreements on consolida tien so that there wouldn't be 30 25 filings on a certain tzsue or something, perhaps division of 1174 286
11 67 01 09 MM i
i ssue s amongst the partici pan ts.
y 2
And to the extent there are any questions about 3
information, the availability of information, the presiding 4
officer would attempt to resolve those.
5 The 00E statement would be received.
.ollowing 6
that, the statements of the o ther participants would be 7
receivec.
That's a total of approximately 120 days af ter 5
the notice of publica tion.
Again, that's a flexible date 9
that the presicing of ficer woulc se t in the scheduling 10
. concerns.
Another 60 days later, t he cro ss sta tements.
11 We have given a f airly substantial amount of time 12 to the cross statements conpared to the statements, saying 13 90 days to prepare tne statements and 60 f or the cross, 14 because we think that many of the participants, those with 15 less institutional resource s, will a ttempt to mC'e their 16 case largely in a counter-punching f ashion, and so tr.e ir 17 cross statements will be their major contribution and iney 16 deservo a substantial amount of time to pre pare those.
19 COMMISSIONER KENNEDY:
Can the intitial s ta tr.m en t s 20 then be reducec?
Couldn' t the time for the intitial 21 sta tements be reduced?
22 MR. OSTRACH:
The initial statements will be tho se 23 carrying the ball f or the parties tha t are trying to carry 24 the ba ll.
I think, in a sense, it is po ssible that parties 25 will break down into two groups:
tnose suggesting their 1174 287
12
.o7 ut 10 MM i
strong confidence tha t there will be a waste cisposal 2
f acility; and those questioning tha tt one sugge sting there 3
is strong confidence 4
COMMISSIONER KENNEDY:
How about those that don't 5
care?'
6 MR. OSTRACH:
They will not have filed anything 7
and go about their lives, I su ppo se.
3 (Laugnter.)
V MR. OSTRACH So, I think each group deserves a 10 substan tial amount of time to f ile their statements.
II Af ter the cross statements have been received, the 12 presicing of ficer will summarize the documents", prepare some 13 sort of presentation to the commission, work with the 14 commission on the f.rther stages of the hearing.
15 Should the commission decide at that time to 16 proceec with a hearing of the sort we have discussed in the 17 paper, wnich is a legislative hearing, the presiding officer 16 with the commi s' '.on, the commission would issue a second 19 prehearing order which would specify which participant it T.0 wished to hear from on what issues, allocate time, se :
21 cates, eno provide turther procedures.
22 We would suggest, if you do go into a legislative 23 hearing, again, it would perhaps be best to go with the DOE 24 and the USGS witnesses first and have the o ther participants 25 have an oppcrtunity to go second.
I174 288
13 67 01 11 MM i
COMMISSIONER GILINSKY:
Who would concuct this 2
hearing at this stage?
3 MR. OSTRACH:
At tnis stage, according to the 4
recommencation we have given here, it would be the 5
commission, the five commi ssioners chaired by the chairman.
o MR. SICKNIT:
With the assistance of a presiding 7
officer who conducted the preliminary stages of the o
proceecing.
9 COMMISSIONER GILINSKY:
But who will no t have 10 conductec a hearing?
R ig ht.
12 MR. OSTRACH:
In this proceeding.
13 COMMISSIONER GILINSKY:
In this proceeding.
14 MR. OSTRACH:
Yes, sir.
15 D'l 17 IS 19 20 21 22 23 24 25
\\\\'
14 CR,7367 I
I MELTZER I
I, i
t-2 mte 1 1
MR. OSTRACH:
The second prehearing order would have j
I 2j provided some procedure by which the participants would submit 3l questions to the Commission to ask of other participants, at l
i I
4 your discretion.
We noticed the staff informed us in the S-3, i
i 5
for example, these questions, referred questions, if you will, 6
took up by a substantial amount the bulk of time that was I
\\
7!
actually spent in hearings.
The questions asked by the j
8 Hearing Board themselves and the direct statements of the 9
participants took up less time than referred questions.
i i
10 So we would have to be careful in tailoring the li l procedures of the hearing to allow an extensive amount of i
t I
12 !
time for that.
I i
13 Following the hearing, the Commission could, if it 14 wished and it determined that it was appropriate, schedule 15 a cross-examination phase.
If it did that, it would have the i
e 16,
cross-examination phase again conducted by the Commission, I
f 17l chaired by the Chairman, with the assistance of the Presiding I
I 18 '
Officer.
t 3
19 Following that phase, if there is any, we would i
20 suggest that the Commission convene a working group that would ;
21 consist of CGC personnel, CPE personnel, appropriate staff i
22 personnel.--I say " appropriate"; it depends on how it's I
23!
structured -- and a presiding officer to prepare a draft of a i
i 24 !
rule and supporting statement of the Ccamission.
It would j
Ac.Ja:ero seco,1.cs. inc. l 25 l then be presented to the Ccemission, approved by the l
1.174 290 I
I
15 mte.2 i
i Commission.
Whether the Commission could publish that as a i
i 2
final rule or an effective rule depends en the extent to which l
i t
3I that stated rule had been previously forecasted in the t
4 original notice of rulemaking.
f 5
We believe that if the rule that is ultimately l
6 promulgated is verv similar to the colicy set forth in the i
i i
I 7j denial of the NRDC petition in 1977, you could simply promulgate i
=
l 8
it as a final rule.
We have set forth that as one possibility i
9l with sufficiently clarity in the proposed notice so that you l
10 l would not need to again publish it for comment.
I 11 !
If, however, the rule marked a change in policy or 12 was based on substantially different date, we believe you l
l l
13 l would have to publi,sh the rule as a proposed rule, solicit i
14 !
35, 40, or 60 days more comment, and then analyze that comment, i
15 i and then publish it for a final rule.
In our judgment, the i
l 16 total amount of time this rulemaking proceedine would take i
i l
1 17 !
would be between 14 and 18 months.
l i
18 i The major uncertainties would be in the area of the 19 amount of time it would take to actually go from the hearing i
20,
to the issuance of a rule and also -- that would be it.
21 COMMISSIONER GILINSKY:
The cuestion ccmes up when i
22 we discuss the possibility of Commission involvement, just 23 how much of the Ccmmissioner's time would be involved here.
l 24 l Co you have any estimate of that?
Aes Federal Recortsrs. IN. '
25 j MR. OSTRACH:
In the hearing itself, we estimate i
i174 291
mta 3 I
16 l'
ten hearing days would be fully adequate.
And a hearing day l
l 2l is not a full day, but the major part of your business day e
3 l would be spent in the hearings.
I I
COMMISSIONER GILINSKY:
This covers the first phase 4I l
5 or does it also allow for possible cross-examination?
6j MR. OSTRACH:
That's the first phase.
It would be 1
7l difficult to estimate how.tuch time we'd spent in cross-3 examination.
I have no idea how many issues would be set for 9
cross-examination or how that would go.
iO l CGMMISSIONER GILINSKY :
Have you considered the II!
possibility of the Commission, after having conducted the i
i 12 first phase, asking the presiding officer to conduct hearings I3 on very specific questions, and then report back to the I4 '
Commission?
I 1*Il MR. CSTRACH:
We haven't considered that, sir.
That i
\\
16 '
would certainiv be within the realm of cossibility.
I have I
l I7 i questions of concerns about the possibility of directing the t
18 ;
presiding c::1cer to hold cross-examination.
I believe those 19 '
who heard the direct statements should also hear the cross
- 0 d
i on the direct statements.
i 21 But if it is a question of the need for further i
22 l hearings on selected issues and creation of a record, it i
23l would be referred to the Commission.
j i
2#
COMMISSIONER GILINSKY:
We're looking in-more AaJews amonm. is ;
25 !
detail on certain matters?
1174 292 s
I i
I
i ste-4 17 I
l 1
MR. CSTRACH:
Certainly that vould be feasible.
f 2
Again, the process that we outline here is capable l
i 3'
of such modification as the issue develops and as your percep-4 tions of it change.
l l
3 COMMISSIONER GILINSKY:
There's no recuirement that i
i 8
6, there be a three-man board in the rulemaking, is there?
I I
7 MR. OSTRACH:
No, sir.
8 COMMISSIONER GILINSKY:
You are finif.ed?
9 MR. OSTRACH:
No, sir.
10 COMMISSIONER GILINSKi-I'm sorry.
l l
11 COMMISSIONER KENNEDY:
He has hardly begun.
I 1
12 !
MR. OSTRACH:
On the subiect of the information i
13 available to the parties, we suggest, since this is a rule-14 makine, we follow the precedent set in pri,r Commission i
l 1
15l rulemakings of this scale and not simply ccmport it with the 16 l, 10 CFR Part 2 adjudicatory position.
- Instead, se suggest what 17' be done is that the Commission itself establish a large data I
18 base, which would consist of the IRG report, backup documents 19 on the IRG report, and the staff compile a document library 20 cf what it believes to be the major waste-related documents, i
21 '
waste as subject matter, not characterization.
22 Furthermore, we believe this would be supplemented I
i 23 by a requirement that any participant making an assertian or l
24 li raising a point would be required to supplement their stace-A= Fwersi amorurs,ine.l 25 l ment with the documents that underlie that, t."1ua 7m k~' ?9 I' hem l
t i
i
I ste 5 19 I
available for at: tack or rebuttal in the cross statements.
i i
2l In this fashion, we believe the Commissic'n -- that all the 3
participants would have access to all of the material which i
4 the Commission could rely on in the rulemaking, We believe 1
5f that is fully adequate to satisfy -- certain1s it's adequate
{
6!
to satisfy due process administrative procedure.
We believe 7
it's a fatu way of ensuring all parties access to the same 8
information, without bogging down the proceeding with extra-9 neous matters about discovery and what people have on their 10 l minds.
Il i COMMISSIONER BRADFORD:
Why is discovery an extraneous 12 '
matter?
I3 MR. OSTRACH:
It may be an extraneous matter if it I#
turns up material thr.
is not otherwise going to form the 15 basis for the Ccmmission rulemaking on this issue.
1E i
COMMISSIONER BRADFORD:
Presumably, it wouldn't I7 turn up material that didn' t form the basis for one of the i
I8 parties' conclusions, or else they wouldn't turnisa it.
I9 MR. OSTRACH:
They wouldn't have sought discovery, 20 ;
sir?
2I COMMISSIONER BRADFORD:
I assume what the discoveries.
I 22 will go to is the basis for the conclusi-s that.the parties l
23 ; stated.
24 !
MR. OSTRACE:
Yes, an attemet Aa.p.cersi necer srs. tee.
to 'Oroduce evidence from another party.
{174 294 23
,l
m t e. 6 19
~
l COMMIc9ICNER BRADFORD:
Do all discovered documents 2
automatically go into the record?
3 MR.
CSTRACH:
Yes, sir, unless they are produced 4
under a protective order or some such similar device.
3 It is, of course, true that the parti 9s can volun-6 l tarily conduct discovery amongst themselves without invoking I
7 process, administrative process, and to the extent that they 8
do that, those documents would go into the public record.
9 They could adopt an open files-policy.
10 CCMMISSIONER 3RADFORD:
Let's see.
If a party 11 I discovers a set of documents from another party, you are 12 saying that, regardless of whether, upon reading through them, 13 the party perceives or feels they are of any use, they all go 14 into the record and must in some way be read and considered 13 by the decisicamaker?
+
16 MR. CSTRACH:
They don't have to be read and consi-17 dered by the decisionmakers, no, sir.
If no party points to 18 them, I don't see why the decisionmaker would ccme across 19 them himself.
They will just accumulate in the file.
20 CCMMISSIONER 3RADFORD:
So they wouldn't clutter 2I things up very badly.
22 MR. OSTRACH:
No, sir.
They would distract the 23 parties' attention.
They would lead to the introduction of
'~
24 concerns.
There would be discovery arguments.
The imposition Aces.eersi necemn. inc. ;
23 ! of a discovery requirement might serve as an impediment to 1174 295
. )mte 7 20 1
parties -- participants willing to participate in the rule-2 making.
l 3
I believ you can say that it is one thing to accept 4
as a burden that you have to prepare a statement and support j
5 your statement; it's another thing to subject yourself to 6l extensive discovery process that can be conducted against 7
you by other participants, and that you have to participate in.
8 We suggest that the Commission could keep, as a 9
safety valve, a-very, very strict discovery rule, providing 10,
that the process could be used -- and this was as it was done 11 in GESMO in ECCS, that in exceptional circumstances, when the 12 l'Commission itself finds that compelling justification has been 13 shown, compelled discovery under subpoena could be achieved.
14 COMMISSIONER BRADFORD:
What dces the exceptional 15 circumstances test add to that statement?
Why aren't compelling 16 circumstances encugh?
Why isn't the compelling showing --
17 MR. OSTRACH:
Frankly, I copied that, sir, from the l
18 previous two rulemakings.
I would guess that the extra value 19 of the exceptional circumstances is that it indicates the j
l 20 i Commission doesn't expect, at least prospectively, that this I
21 be done very often in the proceeding; that compelling justifi-I 22 cation isn't something that wil] ccme up all the time.
It is 23 a different factor.
24 COMMISSICNER 3RADFORD:
I would'think that if I felt i
Ace-ssew : Aeosmri, Inc.i l
25 ccmpelled by the showing, Iwouldn'twantalso?h 6o h
t' 11T I
mte 8 21 I
find that the circumstances were exceptional.
2 What would be the drawback to making discovery --
3 making the availability of discovery an item for comment by 4
the parties in the first round of their submissions?
Pre-5 sumably, at that point any party who felt that if discovery I
6 were allowed he would probably stand up -- it could alert us 7
to the matter.
3 MR. OSTMCH :
Perhaps I will address the first 9
round of comment.
To the extent that the discovery question 10 remains open, subject to subsequent change, you run the risk II that parties are not -- well, that they presumably will be i
12 l simultaneously going ahead with their statements and partici-13 pation.
Id If you then change your mind and discove. you have I3 just set -- you have set yourself back two steps, since you I
16 l are now starting parties all over again with discovery, which I7 has to be ccmpleted before they again prepare statements.
I3 COMMISSIONER 3MDFORD:
I'm not talking about a II change of mind.
I'm just talking about discovery prior to 20 l the hearing itself, based on the written submissions.
2I MR. OSTRACH:
Oh, that wouldn' t have any -- in other 22 words, a party suggests he needs discovery to test the under-i l
23 !
lying assertic.n in such and such a document; they have some
~
24 i reason to believe that a carticicant mav have another study Acs Focefal Recor ers, Inc. :
23 that refutes their position.
That could be.a matter that 1174 297
mte'9 22 I
could be provided for in the second prehearing order.
I 2
don't think that would necessarily disrupt the function of the i
3 proceeding at all.
It could very easily be accommodated at i
4 that stage.
l 5
There are two other factors that should be pointed 6
out.
All government agencies, Commission and Department of 7 l Energy, are subject l
to the FOIA.
So, while there's no discovery 8
as such provided against the Commission, the availability of 9
the FOIA insures any relevant documents any participant wants 10 to get from a government agency, they'll be able to get their II ;
hands on.
I believe discovery rules in these circumstances i
12 '
would be coextensive with the FOIA.
13 COMMISSIONER BRADFORD:
That's probably right, 14 perhaps except for the timing.
I think before I relied exclu-13 sively on the FOIA, I want to be sure that the times for 16 responses and appeals under the FOIA wera consistent with the 17 schedule we set for the hearing.
13 MR. CSTRACH:
If anyrhing, they would be shorter.
I l
l9 The FOIA, speaking as a practitioner, has extraordinarilv 20 1 painful time deadlines; 10 days for initial response, 20 days --
21 10 working days for initial response, 20 workinc days for 22 appeal.
Traditionally, discovery response time is 30 days.
23 l A negative response only triggers an ef fort to enforce.
24 I would think the FOIA would be at least as speedy A=Jewei mecomn. ine.
25 as discovery.
The one difierence, I supp se s
gyOIA I
mte.10 23-I type proceeding isn't so clearly linked to the rulemaking i
2 proceeding so that a party could transfer to the presiding i
3 officer and the Commission his concerns that he was being held I
up or that he needed some additional time because his requests l
4 5l weren't being met.
6 But I think in practical terms, I don't think that i
7!
would be a problem.
l 8 I COMMISSIONER BRADFORD:
That's one.
The other is 9
the final arbiter under the FOIA, short of the courts, is the 10 agency itself from which the document is being sought.
If it II l were being sought under discovery, then it's conceivable that 12 the presiding officer would wind up reviewing a particular I3 document and deciding on its pertinency or other --
Id MR'. OSTRACH:
I believe with respect to another I3 agency -- I'm not --
16 MR. BICKWIT:
I think sc.
I7 MR. OSTRACH:
I imagine the Commissio.: does have an I8 authority on that.
Section 161(c) in the Atomic Energy Act I9 l gives us authority over other agencies of the government.
So i
- 0 1
d I imagine the Commission could issue compulsory process against i
2I l another agency to support a discovery claim.
I would think 22 i
that would be a rather extraordinary set of circumstances i
23 and one that I think the Commission would probably wish to
.' l avoid if at all cossible.
i d
Acs. Federal Reoorters, Inc. l 23 !
COMMISSIONER AHEARNE:
Could I askae#7stienen j
l 1
4 299
I mte 11 24
.-m I
the discovery process.
Down at this end of the table, at
{
F i
2 least, there are some of these subtle nuances that I'm not I
i 3 i very familiar with.
Let's consider two organizations that l
4,come in to participate in our rulemaking.
One is, let's say, l
5!
an industrial organization, the other a public interest group.
I l
6!
If they agree to participate and we have discovery, do I 7
understand correctly that our rules then allow us -- give us a
some legal framework to enforce the right of one of those to 9
extract frcm the other documents, written material, et cetera, 10 in their files?
II MR. CSTRACH:
If we impose the part 2 discovery 1
12 i rules, yes, sir.
I 13 MR. SICKWIT:
Which are not imposed autcmatically.
Id They apply only to adjudications.
15 CCMMISSIONER AHEARNE:
And the link ends up going l
t 16 j back to the Atomic Energy Act, some specific provision that 17 gives us that authority?
i I8 I
MR. SICKWIT:
Subpoena pcwer.
19 l MR. CSTRACH:
Right.
At least in my opinion, for l
i 20 what it's worth, I believe that traditional discoverv rules i
21 1 simply are appropriate in rulemakings.
In rulemakings the i
i 22 Commission is supposed to accumulate a record and make its 23 decision based on that.
In adjudications, the situation i
24 l normally is that parties present views and the Commission Aw e.,si secomn, ine.1 25 i i
or the other party's set of viefs} [ ho }[y0 approves one
ate.12 25 1
party should hold himself up to be viewed by the other parties.'
l 2,
In this case, participants just bring whatever trinkets they i
i 3'
wish to, and it's from those the Commission is supposed to l
l l
6 e-2 4'
make its decision.
i I
5 l
i 6l 7l l
8 9
10 i 11,
i i
12 !
13 14 15 l
16.
I 17 i
l t
18 I
I 19 ;
l 1
i i
l 2!
i i
i 22 i
k 23!
I i
i 24 l
"~~
4... a-=n.n. inc. ;
25 !
I i
l l
l 71 El
61 0'3 01 i
26
.7 5 MM i
CO.'.04 I SS IONER BR ADFO RD:
Of course, whether the 2
crinket is crass or gold may require it be tested.
3
.MR. OSTRACH:
One further point the NRC sta ff a
under any -- even apart from a Commission audit -- well, the 5
Commission and the staff together always have this au thority 5
to issue suopoenas, and if a party makes a compe lling cese e
that it needs information, as I saio, there is no question 9
that the information can be gotten.
That is because of the 9
Commi ssion's power to achieve it to satisfy its own needs.
IO COMMISS IONER GILINSKY:
It wasn't entirely clear li f rom the paper wha t role you envision for the NRC s ta ff.
12 MR. OSTRACH:
No, sir.
13 VR. BICKWIT:
That's the ne xt item.
14
- 4R. OSTRACH:
That is the next item there.
The 15 role we see for the staff is the role of an informed 16 participant out not the lead participant.
daste disposal ll is -- we believe that we have the concurrence of N'(SS in IS this.
Staff might wish to speak for themselves.
19 Naste disposal is not a suoject over which staff 20 nas a preeminent lead role in dealing with the techology ana 21 advancing tne suoject.
And, therefor e, we. don't oeli eve 22 that the sta ff should be required to go first and presen e
23 case that everyone else attacks.
de believe to the extent 24 that anyone plays a lead role in the Commission's waste 25 confidence finding, we think it's more appropriate it be COE 337,4.302-
67 03 02 27 macAN I
and USGS and that staff play a role as an informed 2
participant like other informed participatns.
3 CO MMI SSIONER GILIdS KY:
I guess I want to put it a 4
little ott cifferently, although we come out in the same 3
place.
I wonder whe ther NMSS ought to have to take a 6
position at thi s poin t --
COMMI SSIONER AHEARNE:
Are you saying, Vic, you 6
belie ve they should, or are you questioning whetner they 9
o ught to?
10 COMMISS IONER GILINSKY:
Questioning whether they 11 Sugnt to.
What is involved here really ultimately is 12 whether the Commission feels sufficiently secure about waste 13 disposal tha t it is prepared to go forward with reactor 14 licensing, which is not a responsioility of NMSS>.
16 COMMISSIONER KENNEDY:
It is a reponsibility of 16 NMSS, though, is it not, to reach some judgment as to the I,
waste question itself?
la COMMISSIONER GILINSKY:
Certainly they are going 19 to have to reach a judgment on a license apclication that is 20 presented to them.
But do they need to have a view of, you 21 mignt say, the grander questions at this point?
22 COMMISSIONER AMEARNE:
pernaps you might ask 23 Sill's opinion.
24 COMMISSIONER KENNEDY:
Let me say, I think I see 25 the cifference you are drawing.
I think it is not
\\\\1A 503
61 O'3 03 2B
.?-c VN l
appropriate to take a position as to the grander iss ue, that 2
is whether reactor licensing ought to go forward in the 3
c ircu ms tance s.
4 It seems to me, however, eq ually true, they are 5
coth in a position to -- and it seems to me obligated to 6
give the Commission their best judgment based upon the f acts
/
and understanding of the situation as they know it.
And 3
i t's that that I would expect tney woula be doing.
They 9
would not be recommending to me whether my cecision ought to 10 be to go ahead with reactor licensin;.
That's a di f f erent li question.
12 CO MMISS IONER GILINSKY:
Okay.
That was the 13 diff erence I was trying to develop.
14 COMMISSIONER KENNEDY:
Is that it?
15 COMMISS IONER GILINSKY:
Yer.
16 COMMISSIONER KENNEDY:
Do you agree again with tne Ie s e con d --
IS COMMISSIONER GILINSKY:
I certainly would like to 19 hear ' heir views on where we stand on waste disposal.
c 20 perhaps Bill could sit at the table witn all of us -- I 21 meant later, but go ahead.
22 (Laughter.)
23 COMMISSIONER AHEARNE:
Let him adoress tne 24 procedural question as opposed to the substantive one.
23 COMMISSICNER KENNEDY:
Unis ss he's prepared to 11711 304
67 03 04 29 mec MM i
take the rest of the narning, give us a simple solution.
2 MR. DIRCKJ:
The whole thing right now-I think 3
I followed the general train --
(inaudible) -- certainly what we 4
want ourselves to come out with whatever technology is -- if a
you have been tracking where we are going on the general 6
statement of policy we are proposing to use in the formation of this rule, we envision quite a long trek before we come 4
a up with any judgments as to where DOE is going, and that 9
takes us through a series of steps.
We wouldn't want to 10 prejudge whether or not DOE can get to the final end or not 11 until we see much more data coming in anc much more 12 activity.
(Inaudible.)
13
'Me can give you a pretty good summary of where we 14 thin.< the pa th should take us, the various s teps we think 15 we woulo have to travel 'oefore we would make a licensing 16 decision on the repository, and we ceri lay that out.
Il COMMISSIONER AHEARNE:
I think that's the IS appropriate ac tion f or NMSS.
I more view them as a 19 responsicle staff section to say, "He re is wnat would ce 20 required in orcer to have a licensaole f acility, a 21 licednsaole t e c hno logy.*
I don't oelieve it is their 22 position to say, " And we are confident that someone can get 23 there."
24 CO MMISSIONER GILINSKY:
Let's see.
Have you 25 exhausted yourself, or are we still --
1174 305
$7 03 05 30 mac MM i
MR. OSTRACH:
I've exhausted myself and the role 2
of the staff.
3 COMMISSIONEW GILINSKY:
I wanted to give Guy an 4
opportunity to present his comments when you finished.
5 WR. SICKdIT:
On this cuestion, I am not clear on 6
where the sense is.
Is it the sense of the Commission 4
that -- it's clear that the sense of the Commission is that 3
the s ta ff snould not come in and say, "le're sufficient 1/
9 confident that we recocmend that the Commission should go 10 ahead with reactor licensing."
11 But is it the position of the Commission that the 12 starf should not --
13 COMMISSIONER KENNEDY:
Wait.
I f that happened to 14 oe the view of the staff, and I'm not suggesting that it is 15 or should be, but you are certainly not suggesting that if 16 it nappened to be their view, they shouldn't put 1t f orward, Io are you2 13 MR. BICKWIT:
thought tha t was the s ugges tion.
19 COMMISSIONER GILINSKY:
dnat I was saying is, I 23 cidn' t want to force them into taking a position.
21 CO MMISS IONER KENNEDY:
That's ciff erent.
I don't 22 thin % they should be forced to take a position, but neither 23 do I believe they should be precluded, that the proceeding 24 should preclude them f rom doing it, if tney oelieve they're 25 prepared tc do so.
1174 306'
!h vncou)ird 31 5 7 OJ 06 mac MM i
COMMISS IONER AHEARNE:
I think they should be 2
preciudeo from it.
3 COMMISSIONER KENNEDY:
I c a n' t agr e e t o th a t.
4 COMMISSIONER SRACFORD:
I woulo want to think a 5
little bit more about it, but before I endorse Dick's 6
p ropo s i tion, I guess I would say that if the staff were 7
going to make that link, they ought to involve NRR as well 3
as NMSS in drawing that conclusion -- that if there is going 9
to be a spillover into the area of re actor licensing anc 10 locations, it ought to be a coordinated staf f position and 11 not come simply from the office that doesn't deel with 12 reactors.
13 COMMISS IONER KENNEDY:
I always speak of the staff 14 as a unity.
15 COMMISSIONER BRADFORD:
None of which is to say is they ought to do it, but if it goes in that direction, I ie think it should involve ooth offices.
18 MR. SICKWIT:
I think my question is answered, 19 that the Commission is not together on this issue.
20 (L aughte r. )
21 COMMISSIONER KENNEDY:
That's perceptive.
22 (Laughter.)
23 MR. OSTRACH:
The only otner matter that I do wisa 24 to ciscuss is --
25 COMMISSIONER KENNEDY:
de are finished discussing
~.
1174 307
51030/
32 e-cMM i
that particular part.
There's anothe r question aoout role 2
of staff.
3 dnat assurance do we have that otner federal 4
agencies are going to act as is proposeo here?
Are they in 6
f act going to pick up this role and come forward and argue a 6
case?
Are we sure of that?
Do we have a way of compelling 4
them to do so?
S CO MMISS IONER GILINS':Y:
de ll, if they aren't, I 9
suppose it would aff ect our confidenc e.
10 (Laughter.)
11 COMMISS IONER KENNEDY:
I accept that.
12 MR. OSTRACH:
As a practica l ma tter, i can't 13 imagine any way we could actually compell tne other f ederal 14 agenc ies to play an ac tive role in the proceeding.
de can 15 procably obtain documents in their posse ssion, if push came 16 to shove, tut in terms of getting their active participation il as experts and taking the lead role, there is certainly no 13 formal legal.way that coulc ce cone.
19 COMMISSIGi'5R AHEARNE:
I agree with Vic.
After 20 aJ 1 the Energy Department has the prime responsi' ility for o
21 the federal government fcr estaolishing the prcgram, and if 22 they would not choose to participate, tnat certainly would 23 ce a very strong argument in favor of conclucing one doesn't 24 have sufficient confidence.
23 MR. OSTRACH:
Yes, sir.
I174 308
,67 03 08 33 mqc MM i
CO MMISSIONER KENNEDY:
There are circumstances in 2
wnich they might feel it inappropriate to co so wnolly aside 3
f rom the technical que stions.
For example, if the President 4
nas. lot acted yet on the IRG Report, given any sign as to a
what he celleves as to its conclusions, and that is -- I 6
read in the papers, and that's all I know -- not an unlikely e
situation.
5 Inen one asks, what wculd the Energy Department 9
f eel free to do?
I don't know the answer to that, ou t I can 10 s ee a circumstance in which they mignt say, "Me think it 11 inappropriate to sit here and try to argue 3 case when we 12 don't even know whether the case s ' ready put forward is 13 considered acceptacle by the CTief Ex ecutive Of ficer. "
And 14 tnat's the reason for my qu'3 tion.
~
15 And then, I gutss, I would not nece ssarily agree 16.
that that represents a CJUse for assuming that we should ie take that as an evidence that there is no basis for 18 confidence.
It's an t'ridence that there is an inherent 19 difficulty internally in the government in coming to grips 20 with certain kinds of questions.
21 But that's a different proolem altogether.
22 COMMISSIOdER AHEARNE:
I accept it somewnat 23 weakens the conficence, then, that tne government could cone 24 to grips on the proolems anc solve them.
25 COMMISS IONER KENNEDY:
That may ce, out I don't i174 309
6 7 0'3 C9 34 7 - MM i
know whether we're here to descrice that or discuss it or to 2
reacn conclusions as to it.
3 CO MMISSIONER AMEARNE:
?rocably not tnis morning.
4 CO MMISSIONER KENNEDY:
Or even at that a
proceeding.
Well, anyway tha t's tne reasons for my que s t ion.
I MR. SICKWIT Anc you accep t that it was answered?
S CO'UISS IONER KENNEDY:
Yes.
The final point is that there are a 13 considerable number of spent fuel pool expansion proceedings now pending ce' fore the Commission.
de suggest in view of 12 the fact that the DC Circuit dic not vecete the proposal for 13 spent f uel pool expansion in Vermont Yank ee and prairie 14 Island tnat the Commission permit tno se proceedings to I6 continue on the casis they are now proceeding, which is they 16 con't now consider health and saf ety of radiological impact Is f rom storage af ter the expira tion of the operating license.
13 Ho we ver, the spent f uel -- the license s that are 1/
granted as a result of the spent fuel pool expansion be 23 sucject to modification cased upon whatever conclusions were 21 reacned in the Commission's rulemaking.
22 C0!GISSION ER 3 RAD.:0RO:
Steve, have we --
ould 23 you compare that to what we did, say, when the appeal was 24 vacayed, the S-3 proceeding?
Have we ever previously said 25 tna; an issue that the Commission itself considered is up i 174 310'
$ 1 0'3 10 35 7 c '.N I
f or graos in the sense of an ongoing rule ma.<ing -- is not 2
litigaole in indivioual proceedings pending that ruling?
3 l4R. OSTRACHs
':le11, sir, the answer depends on 4
exactly how you de fine wnat the Commission is saying about 5
this issue.
Certain.ly it we characterize tne Commission as 6
still being cound by the denial -- or still accepting to some extent a denial of the NROC rulema'cing petition, it s
3 woulo Oe in a situation somewhat similar t0 that that you 9
were in while you had the interim S-3 rule that existad 10 while you were updating the S-34 rule in light of the Court 11 of Appeals' Vermont Yankee decision.
12 And at that time you allowe d J.icen sing te proc eed 13 on the basis of the interim rule, sucject to change on the 14 casis of how the rulemaking finally turned out.
i5 I think the answer to your question of what we 16 sugge st here is analogous to what the Commission has done --
Il depends on the Commission's de termina tion of where it is.
la Ine JC Circuit did not make a Commission policy that was I) acplied in prairie Island and Vermont Yankee.
If the 20 Commission wished to vacate the underlying policy, saying 21 the whole question is open, then you would ce presented wita 22 a cifficulty in justifying continuation of licensing on the 23 casts of a vacated policy.
24 COMMISSIGNER AHEARNE:
Steve, could you explain, 20 if I now look to the.:ederal Register notice, page two, the 1174 311
67 63 11 36
.? ~ 'G I
top o f page two wnich runs from the cottoa of page one.
2 explain really what you have in mina there?
uha t would end 3
up happening in the relationship of that S-3?
4
'tR. CSTRACH:
Our Jnderstanding is tha t th6t is 6
e ssen tially a situation similar to tnat that would have 6
existed if the NROC petition of cenial had coen an affirmative act of rulemaking.
S COMMISSIONER AHEARNE:
Does this e ssentially say 9
that it we make the finding, then tne rule vill e ssentially 10 remove from consideration any aspect of some of the parts of the 5-3 tacle?
12 MR. CSTRACH:
It was not intended to do that, 13 s ir.
The intent was only that parties could not litigate 14 the issue of an environmental or radiological impacts of 15 spent fuel remaining on site af ter the expiration of the 16 License, because the Commission woulo have determined the t 14 the spent fuel was not going to remain on site.
IS CO MMISSIONER AHEARNE:
Sut it's solely during the 19 period of time it's on site?
20 MR. OSTRACH:
Yes, sir.
That is the only issue 21 that we intend to take out.
22 CO MMISSIONER AHEARNE:
I see.
I read it, whatever 23 nappens a f te r there's a spent fuel remaining on the site, 24 and any remaining envi:enmental implications of that, tna:
25 was my reading.
1174 312
57 03 12 37 T ' 'd i
MR. CSTRACH:
No, sir.
The intent only was 2
that 3
COMMISSIONER AHEARNE:
During its time on site.
4 MR. OSTRACH:
Yes.
Since i t wouldn' t ce on site, 5
there is no need to consider what happens to it if it had 6
remained on site.
I COMMISSIONER XENNEDY:
Does " safely disposed of 3
o f f s it.4 ", the language at the very cottom of page one mean 9
cisposed of or could it mean " temporarily stored" of f site?
10 For e xample, the AFR cuestion?
11 MR. BICKWIT:
It me ans the comoina tion.
It could 12 mean " safely stored" until a saf e means o f cisp'osal is 13 founc.
14 MR. OSTRACH:
One point tha t I didn't meantion in 15 discussing the body of the paper was the economic issue.
de 16 suggest the Commission address -- tske care of tae economic I4 cost issue in this rulemaking proceeding in the same way is they did in the S-3, which is
-- an issue will ce the 19 economic impracticacility of any suggestec scenario.
20 For a scenario to ce considerec av ailacle, it must 21 ce snown not to be economically impractic al.
But tne 22 Commission would not delve into the actual dollar cost of 23 the scenario of whether it's a gcou cuy -- the same approach 24 the Commission took in tne 5-3 rulemaking for tne waste 25 f acility the re.
1174 313
57 O3 13 33
.n~c T4 i
CO WMISS10.4ER AMEARNE:
You would retein the 2
thres hold concept, thcugh?
3 MR. OSTRACH:
Yes.
4 5
6 I
9 v
10 li 12 13 14 15 16 es 17 la 19 20 21 22 23 24 25 if 74 fd4
39 CR 73e
{
MEL'ZER l
T t-4 mte 1 1
7 1
COMMISSIONER GILINSKY:
Does that pretty well take l
2l care of CGC's presentation?
I 3l MR. OSTRACH:
Yes, sir.
4 COMMISSIONER GILINSKY:
Would you like to add I
I 3j something to that?
l t
6; MR. CUNNINGHAM:
Not a great deal.
As you know, I
7 it's a joint paper.
ELD subscribes to the presentation of I
1 8
the Office of General Counsel this morning.
9 I think I would like to, however, just add emphasis 10 to two points made by Steve.
One is on the matter of discovery.
I 11 !
I would strongly endorse the notion that limited adjudicatory 12 discovery should not be part of this rulemaking for, I think, 13 three reasons:
14 The first:
I don't think that that type of discovery 15 is necessarily useful in a rulemaking.
It certainly is not as l
16 well adapted as it is to the testing of positions which is f
17' common to adjudication.
i 13 Secondly, I think it is bound to add substantial l
19 time, if unlimited discovery is permitted, to the ultimate l
20 determination of the proceeding.
21,
And thirdly, I think it may have an impact on the i
i I
22 willingness of certainly groups with limited resources to i
l 23 ;
participate, if they know they're going to be subjet co l
l 24 ;
discovery which could be burdensome.
Ac.J. ewe a. con.n, inc. i TSl COMMISSIONER BRAOFORD:
You're not disputing the l
1174 315 i
40 l
mte 2 I
i
~
l propositicn that we can find that out?
l f
2 MR. CUM;!NGHAM:
I'm net at all.
As Steve emphasized,i i
l 3l the Commission has a variety of tools by which it can get the t
i 4l information it feels is needed.
i 5!
COMMISSIONER BRADFORD:
No, I'm sorry.
We think we 6l can find out whether parties will be deterred from participating l 7
simply by a sking them to ccr.=ent on that at the beginning.
I Bj MR. CUNNINGHAM:
No, I don't agree with that.
I'm I
9:
just offering my prediction oncwhat the answer will be.
10 l MR. BICXWIT:
Are you suggesting that there be i
11 comment on the general standart' fordiscoveryatthebeginningl 12 '
of this proceeding?
Is that your suggestion?
I 13 l COMMISSIONER 3RADFORD:
My initial thought really i
14 was in response to Steve's point that parties would actually 15 i be deterred from participating, wculd be that we can make the j
16 i availability of discovery, I guess including the standard --
l I
17!
we could request parties to comment on that in cheir initial i
i IS i subnission.
i 19,
MR. BICKWIT:
There would be no croblem with that if i
20 you had this judicial officer, presiding officer.
He could i
1 21 certify that question up to the Commission.
l 22 COMMISSIONER BRADFORD:
I must say I would be very 1
I 23,
interested in knowing what percentage of the parties would f
1 24 j actually say that they would withdraw if discovery were l
Ac.s.eer.4 Reoort.rs.inc.,
i 25 '
allowed.
i174 316
41 ste 3 l
l I
COMMISSIONER AHEARNE:
Can you make any kind of I
I 2
just a rough estimate of -- you mentioned that it would extend i
3; the time, make it longer.
Do you have a rough feeling on --
4 either Steve or you?
I 5l MR. BICKWIT:
In the TMI-l proceeding, we calculated i
6l 60 days for discovery.
That's using our rules under Subpart (B),.
i 7;
MR. OSTRACH:
I believe it would probably take more l
l 8
time in a rulemaking like this.
You've got more expertise, 9
Guy, than I, but my impression is past Commission rulemakings, 10 discovery problems have delayed matters.
Considerable
...:e i
II has been spent while the parties have done nothing but engage i
12 in discovery, document exchange and document production, to 13 the preclusion of efforts directed specifically in preparing Id their statements.
15 '
f MR. CUNN;;IGHAM:
I gather the sentiment here, if 16 there was to be discovery, it would be only after statements I
I7 l of posicion.
Discovery would go toward the bases of those l
i I
i 18 !
pcsitions.
If that assumption is correct, then you can perhaps '
i l9 l minimize the time for discovery.
i 20 The danger always is that if you allow discovery, 21 you then get into arguments about the scope of discoverv.
l 22 And while I wasn't focused on
.arlier discussion, I 23 l I
l detected an underlying assumption that we were talking aoout l
24 discovery of documents that existed, what did you rely upon.
,w.nowe a.comrs, ine.,
i 25 But if we talk about other types of disccvery, such as l
1174 317
42 mte,4
!l I
I interrogatories, requiring the framing of answers, then you 2f do run a severe risk, I think, of argument about what's a 3
proper question.
And it could drag on.
l 4!
COMMISSIONER AREARNE:
That particular aspect, I
t 5
though, that would go beyond what would be available --
l 5
6l MR. CUNNINGEAM:
That's right.
Under FOIA, you are i
7l only going to get what exists.
You can't require the genaration' l
8' of documents or answers.
9 COMMISSIONER GILINSKY:
Do you see any difficulty in 10 Mr. Bradford's proposal to --
II MR. CUNNINGHAM:
Ask far commento i
12 !
COMMISSIONER GILINSKY:
-- ask for comment at the l
1 i
I I3 outset on proposed discovery procedures and asking for what I4 impact that might have on participation of potential partici-15 pants?
i 16 MR. CUNNINGHAM:
I see no difficulty with it.
I i
I7l would jus suggest, if it's done, it ought to go in the very l
18 l first retice.
I9 !'t COMMISSIONER AHEARNE:
Now, see that thought -- at 20lleast I thought you said thac you did see a difficulty.
+
2I !
MR. BICKWIT:
I think Steve was responding to a 22 i different question on the issue.
I don't see any difficulty.
I 23 I COMMISSIONER AHEARNE:
The point was that if you're l
not -- if you do not open the issue of discovery during that Aa sene anorms w..
I 25 i initial period of time, that you will then find that cecole' 1174 318 l
43 mte.5 l
i might not be focusing upon the preparation of their statements.l I
2 MR. BICKWIT:
But all we would be asking for comment l
3l on would be those procedural benefits of going forward with a i
l 4j discovery process.
We wouldn't be asking for comments on j
5l.
particular discovery requests.
I 6'
COMMISSIONER AHEARNE:
I understand that.
But I l
i 7'
thought his point then -- maybe I just misunderstood it.
I 8
thought his point was that if you go out with two things, one 9
the notice of this procaeding, and second, a notice of comment I
i 10 l on the proce6 ural question of discovery, that you then put i
l II l people in the position, if they're going to rely on the second -
i 12 f let's say they're going to rely on a positive yes answer, that
~
13 on the first they don't devote that length of time they would 14 have otherwise devoted to the. preparation of their statement, 15 because they're waiting for the discovery to occur.
16 COMMISSIONER KENNEDY:
That's what I thoucht.
l
~
I7 l MR. CSTRACH:
That's what I said, Commissioner.
"I I
18 !
believe there might be scme risk.
I don't know how serious i
19 i a risk it would be.
I i
l
~
20 (At 10:33 a.m., Commissioner Bradford left the recm.)a i
I 21 l COMMISSIONER KENNEDY:
It seems to me logical to I
22 l assume that if the choice is between no discovery and some l
23 discovery, whatever its character may be, the individual is I
going to wait a bit before he initiates preparation of a Ace-Federal Reporters. IN. '
statement to find out which course that's going to be, because f
- 5 4
i
44 mte 6 I
I
(~'
li he may, if it's going to be some discovery, want to wait until I
2i he sees what he gets.
i l
3 MR. BICKWIT:
He isn't preparing a statement in the 4
first instance.
I i
Si COMMISSIONER KENNEDY:
But he's going to start j
6l thinking in those terms, hopefully.
l MR. BICKWIT:
That's true.
COMMISSIONER KENNEDY:
If you ever plan to get the j
y i
l 9
proceeding finished.
l l
10,
MR. OSTRACH:
As proposed, at least it's our office's i i
i l
l 11 opinion that we have allowed enough room for discovery in those!
i l
12 '
cases where a real need for it is shown.
We think we have, on 13 the other hand, imposed barriers for parties using discovery, 14 participants using discovery simply because it's there.
Maybe l
1 l
15 we will find some fishing expedition type discovery. By 16 requiring a showing of compelling -- we would expect that a i
17 skilled and experienced presiding officer would be able to 18 give the Commission very pointed recommendations on what 19 l process of discovary he receives.
I, 20 i I don't think it is likely that you would miss 1
21 l anything that would be of importance.
22 COMMISSIONER KENNEDY:
I noted on page 11 that you 23 suggest that we should not determine initially the precise 24 '
procedures for the hearing until we have received writren Ac s.eer : n.corters, ine. l 25 :
statements to determine what procedures are best adapeef to 1174 320
45 I
mee 7 l
i
~
t
/'
I resolving the issues.
And I wondered how much time you j
2 visualize that might take.
3!
MR. OSTRACH:
Developing die r rocedures of the 4
hearing, sir?
I 5
COMMISSIONER KENNEDY:
Ye.s.
6 i
6l MR. OSTRACH:
Not an extc7sive amount of time at all.l, i
I 7
Assuming that the Commission -- the chcices before the 1
8; Commission would be three, primarily:
either go with a legis-l 9'
lative hearing of the type we described here, go with an 10 adjudicatory hearing, or do without a hearing entirely.
Or 1
Il i perhaps there might be a fourth, which would be to ask -- as I,
12 Commissioner GiJinsky suggested, in a sense remand for special-13 '
ized hearings on certain issues before the presiding officer.
14 The choice having been made amongst those leading 15 _
contenders, I see no reason why it would be a difficult task I
i l
I i
16 i to come up with an acceptable source of procedure.
One gets l
i 17 i the parties or the participants on the telephone:
We think I
18 j A and 3 should work together.
How about a half an hour?
How i
e i
i 19 l much time do you need?
Well, you know, your witness has I
20,
vacation plans.
I 21 l j
Those are minor details I don't see requiring signi-i I
22 i ficant Commission time or very much in the total sense of the i
i l
l I
23 l presiding officer's time.
t 24,
CCMMISSIONER AHEA3NE:
Is the reason you have not --
As-Federal Reoorters, Inc. l 25 }' you are not trying to get us too specifically now,.because 1174 321 l
46 mte 8 i
e 1
there are pros and cons that will be clarified by the submis-
~
2 sions, or because you doubt that we can reach a decision?
i 3,
COMMISSIONER GILINSKY:
Don't make him answer that.
I, 4i MR. OSTRACH:
I think I would have to answer the i
5 former, sir.
The question of whether or not you believe there 6
is a need -- the real choice, I believe, is between a legisla-i i
l i
7!
tive hearing and an adjudicatory hearing.
I believe the i
at Commission has shown great interest in having a hearing.
The 9
choice between those things, I think, depends upon the 10 Commission's perception of what the nature of the issues are.
i l
i i
11 j Are they the sort of issues that the Commission really will l
I 12 '
feel the need for cross-examination on.
And I don't think 13 that that's a decision that could profitably be put to the 14 Commissic7 now, because you haven't got the issues presented.
15 You will only have them after you've seen the statements.
16,
COMMISSIONER AHEARNE:
But I thought that that i
ly decision you were speaking abcut would be the one that would l
18 decide between a legislative hearing period and a legislative i
19 hearing followed by a selected set of focused issues under 20 cross-examination.
21 COMMISSIONER KENNEDY:
That's one option.
Another i
22 option is for an adjudicatory hearing.
l t
23 MR. BICKWIT:
Or no hearing.
l 2J l COMMISSIONER AHEARNE:
And you believe there.is Ac.J eerei necer m. inc. ;
25,
sufficient doubt as to what the issues are at the present i
1174 322 f
47 mte 9 i
i 1
time that it wou d be unwise to choose now the form of that 2
hearing?
l 3
MR. OSTRACH:
I don' t believe there would be anything l 4l significantly gained.
The main reason we try and specify l
l 5: precedures as f ar in advance as possible is to guide the l
6l parties' conduct.
I don't think the parties need to know now, 7' it does them any good, to know what the Commission's thinking i
8, is.
I believe it helps the Commission by retaining flexibility.
I i
9 MR. BICKWIT:
In the notice, we do set out the
?
I 10 tentative conclusion and say:
Unless different procedures 11 are arrived at, here's where we're going.
i 1
12 COMMISSIONER AHEARNE:
I know.
l l
l 13 COMMISSIONER GILINSKY:
I wonder, Lee, whether you 14 l have anything to add on the question of staff partic'pation i
15 and the role of the various offices in such a proceeding?
16 !
MR. GOSSICK:
No.
Of course, in Mr. Kennedy's view, i
1 17 certainly NMSS and NRR and possibly even others can be 18 j involved.
But I guess I come back to the point that 19 Commissioner Ahearne made:
If they are not asked to take a 20 position with regard to their view as to, you know, the 21 availability of the technology to be able to handle the waste i
22 matter, clearly it seems to me that it is up to DOE or whoever 23 aise, whatever body, to present that convincingly to the 24 l Commission, so that you can make a decision on it.
Ace Federal Reporters, IN.
I 25 But I can think only -- it's up to the staff I
i174 323 I
48 mte.10 i
j
/~
1 primarily, under those conditions, to present to you their l
1 2l assurance as to the degree that you can see that we would be i
3' in a position to license such a facility whenever the applica-4' tion and facts are presented to the staff or licensee.
l i
S I don' t think I have anything else to add.
I j
l i'
6!
COMMISSIONER AREARNE:
I would think if we restrict i
l I
7l NMSS to the role I described, which I think is their appropriate t
a one, saying here is what we believe to be necessary, that that 91 would neutralize them to the extent of addressing the substan-I l
10 l tive question that the hearing would be involved in, and 11 therefore would have a greater chance of us being able to also I
12 use their technical expert knowledge in assisting us.
~
13 COMMISSIONER GILINSKY:
I must say that I am inclined I
la '
to feel that if the staff has a strong view one way er the I
15 l other, bared on their technical judgment, I wouldn't keep them i
I i
16 !
from expressing it.
17 COMMISSIONER KENNEDY:
I would hope not.
i 18 I CCMMISSIONER GILINSKY:
It seems to me the concern I
19 was more that they would be pressed to take a view when they 5
l 20 ;
were not prepared in fact to take one.
j i
21 COMMISSIONER KENNEDY:
As a practical matter, if theyl l
22 l were asked a question, I suppose the issue would come down to:
i l
23, Are we saying that they should decline to answer?
If they were:
24 ;
asked a question and had an answer which they believe to be Aa.FWml A morms, W.,
25 j correct from their own perception, it seems to me they ought i
I i174 324
49 mte,ll 1
to answer it.
i i
2:
But I agree with you, they should not be driven to I
i l
3 that.
If the answer to the question is we don't know or we l
l 4
are not prepared to make that judgment, that's the answer to l
5 the question.
I 6'
VR. GOSSICK: I think one should also point out thar I
7 you may not fin a monolithic kind of position here.
There 8
may be a divergence of views that you have to contend with.
9 COMMISSIONER KENNEDi.
That's what the hearing is i
about.
10 11 MR. GOSSICK:
Right.
COMMISSIONER GILINSKY:
Are there any other views l
12 i
i 13 on this proposed statement?
Do you feel that you are ready to i
14 go forward with it?
15 CCMMISSIONER AHEARNE:
I think I am.
16 COMMISSIONER KENNEDY:
I am, with the understanding i
17 !
that I mentivned earlier, that we are not ignoring by the word !
18
" disposed" at the bottom of the page 1 --
19 COMMISSIONER AHEARNE:
It could probably easily be i
20 revised to say " restored."
l l
21 '
COMMISSIONER KENNEDY:
Or " disposed."
I i
t 22 MR. SICKWIT:
" Restored or dispcsed."
I 23 !
COMMISSIONER KENNEDY:
That would take care of my 6
24 problem.
Ace Focers Reoorters, Inc.
25 COMMISSIONER GILINSKY:
And how about including a L
1174 U5
s0 mte 12 i
i
^
1l question at this point of possible participants, on the way I
I 2j discovery would be handled and what impact that might have i
3 on their participation?
4; COMMISSIONER KENNEDY:
Well, I personally would i
I Si accept the staff view here.
I agree with it that discovery t
6:
is not needed, and indeed probably not merited, and that it i
7l might cause -- I think it would have -- it's likely to cause l
l 8l scme further delay.
t 9l However, as a general proposition, if we want to ask i
i 10 l parties what they think of it, I am always for that.
So I have, I
l 11 l no objection to it.
12 '
COMMISSIONER AHEARNE:
If you come up with some kind.
l 12 lIof a sentence or paragraph to.put that idea in, I wouldn't I
14 ;
object.
I 15,
MR. BICKWIT:
With the idea that the decisions would I
16 j be certified up to you on that.
i 17l COMMISSIONER AHEARNE:
I would appreciate seeing l
18 l the paragraph be: ore it gets out.
I 19 i MR. BICKWIT:
We assumed you would appreciate it.
l l
20]
We assumed you would see it.
l 1
t 21 l COMMISSIONER GILINSKY:
Could we, then, agree on this I
22 proposed notice, subject to seeing the specific changes?
I I
23l COMMISSIONER KENNEDY:
The two modifications?
24 !
COMMISSIONER GILINSKY:
Yes.
w.ami n.mn.n. ine. l 25 l COMMISSIONER AHEARNE:
Yes.
117L1 326 i,
i I
i mte 13 l
I l '!
COMMISSIONER KENNEDY:
Yes.
i 2l COMMISSIONER GILINSKY:
And approving those.
i 3'
John?
i 4
COMMISSIONER KENNEDY:
I do.
I i
1 5
COMMISSIONER AHEARNE:
I do.
I i
6l COMMISSIONER GILINSKY:
Thank you.
I think we have i
I i
i 7i taken care of Mr. Bradford's concerns.
l l
Bj COMMISSIONER AHEARNE:
I'm sorry.
Could I ask one i
9l other question?
You had pointed out this remaining on-site.
10 l'Could you put in a clarifying something to make it clear that I
~
11 j what you are addressing here is that it's remaining on-site I
12 ;
during the time it's on site.
l
~
13 MR. 0STRACH:
If it's all right with the other 14 Commissioners, I think that the point was clear and we will B
15 work with Commissioner Ahearne's office to get language that's 16 '
satisfactory.
I i
17 lI CCMMISSIONER GILINSKY:
The proposed change sounded i
E i
18 -
satisfactory to me.
i 19 COMMISSIONER KENNEDY:
3atch it all together and send l
20 ;
it all out.
i 21 CCMMISSIONER GILINSKY:
Anyone elsc who has anything i
22 else to add on this question?
i 23 (No response.)
24 !
COMMISSIONER GILINSKY:
See if you can get AcsJederal Reoorters, Inc.
25 :
Mr. Bradford, just to make absolutely sure that we have in
~
l L
1174 527
52 ste,14 I
I i
, ~]'
I fact taken care of his concerns.
2 MR. OSTRACH:
My understanding, if we have a moment, i
3!
is that the paragraph you are speaking about would be a para-4 graph just after the questions of discovery, that we say:
"The 5
Commission, however, is considering whether to also have 6
adjudicatory discovery procedures.
We wish the parties to 7
comment on this, and in particularly, whether, if such i
l 8
procedures were added, they would affect or deter them from 9
participation.
They should file their comments in the 30-day 10 period, the very first round of comments or statements of i
II intent to participate."
l t
12 )
And I suppcse we would also say the presiding officer 13 l s_
is directed to refer to the Commission immediately his Id recommended --
15 COMMISSIONER AHEARNE:
Right, whatever that was.
i I0 COMMISSIONER KENNEDY:
With a summary.
I l
17 i
MR. OSTRACH:
With a summary of positions and 18 recommendations, i
19 (At 10:45 p.m. Cc=missioner Bradford entered the room.')
20 MR. OSTRACH:
This is in addition to the notice on 21 page 29 of the draft notice.
Add a new paragraph saying:
f 22 "However, the Commission is also considering whether 23 to also provide adjudicatory discovery procedures.
The 24 l Commission wishes participants to discuss this and say whether 4.-ne-w a.comn. inc. -
25 it would affect or deter their participation.
They should file,
~
if74 328
53 mee 15 l
I I
their comments on this 30 days after the notice of hearing.
1 2l The presiding officer will summarize their comments and send i
I 3'
a recommendation to the Commission for prompt resolution."
4 COMMISSIONER BRADFORD:
That seems fine.
5l MR. OSTRACH:
There is one remaining question that l
6!
I think the Commission will have to deal with separately.
l
- 7' COMMISSIONER BRADFORD
Let's see.
Steve, I take it l l
l B i that also means for the moment you would scrub the part that 9!
states the standard in terms of " extraordinary circumstances"?
I 10 i
COMMISSIONER AHEARNE:
No, I think that would stay in.
II COMMISSIONER GILINSKY:
Wait a minute.
12 COMM 'SSIONER BRADFORD:
I would not do that.
13 COMMISSIONER AHEARNE:
I would, 14 COMMISSIONER KENNEDY:
I would.
15 COMMISSION 4R GILINSKY:
Can we just go back to that 16 point?
Where is that?
I 17 MR. OSTRACH:
Top of page 9 of your notice.
i 18 MR. CUMNINGHAM:
May I suggest, khat you might want t
I9 to say.
"It's the Commission's present intention that requests!
I 20
- or interrogatories, depositions and otner forms of discovery i
i 21 l will not be entertained," et cetera, and then the other para-l 22 I graph.
t 23 COMMISSIONER KENNEDY:
That's all right.
t 1
2# l COMMISSIONER AHEARNE:
That's all right.
AceJeewee geoemri, inc. l:
25 COMMISSIONER BRADFORD:
No, I don't think so.
It 1174 329
54 mee 16 i
i I
would suffice if we took out the words "in exceptional 2!
circumstances."
3l; COMMISSIONER GILINSKY:
I was just going to propose i
4l that.
It seemed to me that tilted too far in one direction l
5l and really raises a question of --
i 6'
COMMISSIONER BRADFORD:
I would also change the 7
negative to positive, "will be entertained upon a showing of l
8 compelling justification," et cetera.
9I COMMISSIONER GILINSKY:
That seems a reasonable I
i 10 change to me.
l II COMMISSIONER AHEARNE:
No.
i 1
12 CCMMISSIONER GILINSKY:
What is the exceptional l
l l
13 circumstances?
I Id COMMISSIONER AHEARNE:
I guess I tend to lean againstj l
the use of discovery. Changing it to the positive would be a 15 i
l l
16 '
leaning :orward, and I couldn't go along with it.
17 COMMISSIONER GILINSKY:
I must say, in acting on the 18 matter, I had assumed that we had left it open, in fact asking i
19 l for ccmment on it, and did not realize that these words were 20 staying in.
21 Now, let's see.
You think " exceptional circumstances" 22 COMMISSIONER AHEARNE:
" Exceptional circumstances."
i 23 I
would have to go back and try to check some legal termino-24
- legy, 7.m afraid now we may be playing around with words of Aces.cer.i a.comri. ine. ;
25 l art.
l n74 330
55 mee 17 l
i Il COMM,ISSIONER BRADFORD:
This is my revenge for i
2 Three Mile Island, this discussion.
3; e-4 (Laughter.)
l i
4l I
i 5!
i 1
6l l
7l 1
i i
i I
3 9;
10 i
i i
11 l i
12 j l
i 13 14 :
15 i i
16 I 17f l
i
!8 '
19 !
l l
20 !
l 21 i i
22 23 i 24 l Ac -7.e... a.cor en, inc.,
25 l l
1174 331
367 05 01 56 gv MM i
COMMISSIONER AHEARNE:
Could you clarity that?
2 COMMISSIONER SRA0 FORD:
Just that now i t's my turn 3
to use terminology.
4 COMMISSIONER AHEARNE:
I see.
5 So, Len, wna t is the significance of " exceptional o
circumstances coupled with compelling justification"?
7 MR. SICKWIT:
It's what Steve said previously, 6
that the understanding is that this would not be done 9
often.
10 COMMISSIONER AHEARNE:
But to a layman, either of 11 those would suf fice.
12 MR.-SICKWIT:
I t's po ssible.
The commission is 13 indicating it will not find compelling circumstances of ten.
s
'~
14 If you take "exce ptional circumstances" out, the commission 15 i s no t ind.icating that.
16 COMMISSIONER AHEARNE:
My point is:
to a layT.an, 17 the " compelling jus tifica tion" would mean that there is a 16 rationale why you should oo it, and that's what " compelling" 19 is.
20 MR. BIC.< WIT:
Right.
21 COMMISSIONER GILINSKY:
" Com p = 111ng" is pretty 22 strong.
23 COMMISSIONER AHEARNE:
So, if you add " exceptional 24 circumstances," you're telling me that overrides 25
" compelling."
That would mean in some cases it woulo ce i174 332
57 107 05 02
.. 4M i
compelling in wnich you ought to co it but it's not 2
exce ptional so you wouldn't do it.
And that leads to my 3
confusion.
Tnat's why I am asking is there a legal link of 4
some kind.
5 MR. SICKWIT:
I don't think tha t's wha t is o
intended.
It is simply saying, when this language was 7
written, it is the understanding it will be the unusual case 6
in which compelling circumstances are found, but the 9
compelling circumstances te st is the only test that's going 10 to be used.
Il COMMISSIONER KENNEDY:
Exceptional circumstances, 12 you mean.
13 COMMISSIONER AHEARNE:
"Exce ptional circums tances" 14 doesn't add anything.
I5 COMMI SS 10i1ER.<ENNEDY :
To me it was only 16 suggesting.
17 MR. DICKWIT:
Yes.
16 COMMISSIONER KENNEDY:
The compelling 19 justification is going to arise only in exceptional 20 circums tance s.
21 MR. BICKWIT:
Tha t's the in ten tion.
22 COMMISSIONER KENNEDY :
That's what it say s to m e,
23 and that's what I a ssumed it meant, and that's exactly the 24 way I think it ought to be, as I incicated earlier.
I have 25 no ocjec tion whatever to inquiring of the parties' views 'on 1174 333
58 367 05 03 g/ MM i
this, anc an option wnich is to provi 2
broa cer --
3 MR. SICKWIT:
I that makes any diff erence, we can 4
revise the sentence to say aunle ss there is compelling 5
Justification, therefore," and then add another sentence 6
saying "the commission would not expect this to happen 7
except in exceptional circumstances."
8 COMMI SS IONER AHEARNE:
Fine.
9 COMMISS IONER KENNEDY:
That's what it says now, as 10 f ar as I am concerned.
That's okay with me.
11 COMMISSIONER BRADFORC:
It seems strange to me 12
- nat we are now being icoked at ourselves by at least three 13 dif f erent groups:
the K;meny Commission, the Ragoven 14 investigation, the Hart commi ttee -- all of which intend to 15 draw a combination of specific and general conclusions about 16 nuclear regulation and the way it perceives it.
17 None of them are talking about -- other parties 15 come to us with trinkets, upon whicn they will then base 19 some pre tty sw ee ping conclusions about their degree of 20 confidence in the f uture of nuclear regulation.
iney are 21 sending their counsel out to do very close to the equivalent 22 of some aspec ts of discovery; in fact, taking depositions 23 and really probing the structure.
That seems to me -- or at 24 least tna t po tential method of inquiry -- seems to me more 25 consistent with the behavior of a group that really wants to 1174 334
59 361 0) 04
( p/ MM i
be in a position to test all of the assumptions, all of the 2
facts, all of tne positions ceing alleged before it.
And 3
all three of those groups are proceeding in that way.
4 Now, there are differences, of course, in the 5
structure of their inquirie s, and the structure of this --
6 of what we're talking about doing here.
But it is 7
interesting that not one of those groups chose as a method 8
of conducting their inquiry a proce ss in any way analogous 9
to what we're talking about here.
10 COMMISSIONER AHEARNE:
Bu t, Peter. I haven't 11 a ssigned either of those groups that you have ref erenced 12 having cross-examination of the parties in f ront of them.
13 It appeared to me they are doing exactly what we are trying 14 to do.
I don' t read this discovery a restriction on us 15 finding out information.
If it is, then please explain that 16 to me.
17 I thought the discovery provision we are debating 15 is tne parties in f ront of us in what they can discover with 19 each other.
I haven't seen any indication on either of the 20 organizations you mentioned to try to give us the authority 21 to dig into other aspec ts of it.
Your analogy --
22 COMMISSIONER SRADFORD:
In fact, we have that 23 au t ho ri ty.
But there is a limit to how far the cnalogy can 24 be taken.
But it does seem to me tha t discovery-type 25 proceedings commend themselves even to groups that are I1/4 335
60 so),uo 05
(
'pv MM i
trying to draw general conclusions about a pretty broad 2
subject.
3 Now, what we are talking about, cro ss-e xamina tion,
4 let me say I would f eel le ss strongly -- I think the 5
possibility of cross-examination should be held open here o
also,,but I think if I were compelled to choose, I would 7
pref er to have discovery.
6 COMMISSIONER AHEARNE:
If you see this as limiting 9
us, our presiding officer, in his er our ability --
10 COMMISSIONER BRADFORD:
No, I don't.
11 COMMISSIONER AHEARNE:
But that's the analogy, I 12 think, to the groups you're talking about.
13 COMMISSIONER SR ADFORD:
No, I am simply talking 14 about the ways in which those groups are going aoout drawing 15 information to themselves.
Obviously, they don't have 16 exac tly the same type of proceeding.
They don' t have a 17 rulemaking with many participants in it, but I don't think la that's to say for a minute tha t if they cid they would no t 19 be engaging in a process of discovery themselves.
20 COMMISSIONER AHEARNE:
But I think in both of 21 those cases they are expressing a confidence in themselves 22 and their ability to carry out and find ou t the information, 23 and I would similarly hope that we would have that sar.a kind 24 of confidence in our ability to find out the information.
25 COMMISSIONER BRADFORD:
What they are saying is,
\\\\l4 ;36
~.
61 67.05 0o t
pv l4M i
in dealing with parties whose views they may have some 2
reason not to acce pt wi thout some reservation, they are 3
going well beyond Ine simple expression of those views and 4
ge tting their hanos on a great numoer of documents and 5
asking a great many questions.
6 COMMISSIONER AHEARNE:
Which then the analogy 7
mignt then be that we ought to try to do tha t also.
8 COMMISSIONER 3RADFORD:
That would be another way.
9 MR. CUNNINGHAM:
I think it is clear the procedure 10 recommended nere preserves every tool the commission has to 11 do whatever probing it f eels nece ssary.
The discovery 12 con trove rsy, as you point out, relate s to parties vis-a-vis 13 t hem s elve s.
14 COMMISSI("1ER BRADFORD:
Or each other.-
15 MR. CUNNINGHAM:
Each other.
Tha t's right.
ld COMMISS IONER GILINSKY:
Let me just ask again now 17 you f eel about the " exceptional circumstances."
Do you feel 16
- tha t needs to stay in there?
19 COMMISSIONER AHEARNE:
Well, Len had proposed to 20 put in that seconc sentence, which I have no problem with.
21 COMMISSIONER GILINSKY:
It still l' eave s in the 22
" exceptional circumstance s."
I am just asking wnether you 23 feel that that has to be in tnere.
24 COMMISSIONER AHEARNE:
I am still leaning in tha t 25 direction, yes.
1174 337
62 67.05 07
- 4. MM 1
COMMISSIONER GILINSKY:
It's a question of whether 2
.we come to simple agreement on this question or not.
3 COMMISSIONER BRADFORD:
Supposing that we write 4
the paragraph tha t Stave described and then simply state the 5
fact which is that the commission has not ye t agreed upon or 6
has not decided the standard.
It seems f airly clear that 7
among the f our of us we haven't, and would welcome comment 6
on that subject.
9 COMMISS IONER BRADFORD:
Or the alternative 10 stands.
You can put forth the alternative stands, put f orward thist put f orward the standard as I sugge sted you 12 might modify it and put f orward adjudicatory discovery, ask 13 for comment on them.
14 COMMISSIONER AHEARNE:
Fine.
15 COMMISSIONER GILINSKY:
Is that satisfactory, 16 Mr. Ker.nedy?
17 COMMISSIONER KENNEDY:
Yes.
IS MR. OSTRACH:
Parcon me.
Just in terms of format, 19 wculd that leave in the language that is presently there at 20 the top of page 97 21 COMMISSIONER KENNEDY:
Modified as counsel 22 suggested.
23 MR. OSTRACH:
Modified into two sentences --
24 (Simultaneous discu ssion.)
25 COMMISSIONER GILINSKY:
?Ia i t.
I thought you were 1174 338
63 61 C5 Cd i
p v Mia i
suggesting we leave it open and simply say we have no t 2
decicec on discovery procedures, and lay out three 3
po ssio ili tie s.
4 MR. BICKWIT:
Tha t's right.
5 COMMISSIONER GILINSKY:
Tha t's w ha t I thought.
o COMMISSIONER KENNEDY :
That's all right.
7 COMMISSIONER AHEARNE:
Yes.
8 COMMISSIONER KENNEDY Recognizing tha t I have 9
already sta ted my veiw of the matter clearly on the record, IC I agree to putting it in.
11 COMMISSIONER AMEARNE:
This would only then be 12 left as one of the alternatives.
13 COMMISSIONER GILINSKY:
Right.
We will not have 14 decidec tha t ques tion, which we will decide at some point, 15 hopefully, not too f ar in the distant future.
Io COMMISSIONER AHEARNE:
Right.
17 COMMISSIONER GILINSKY:
Can we modify our 16 agreement in t ha t way?
19 COMMISSIONER KENNEDY:
Right.
2C COMMISSIONER GILINSKY:
We will still want to s ee 21 a precise --
22 MR. SICKWIT:
Do you want to vote, Pe ter?
23 COMMISSIONER GILINSKY:
I was asking Pe ter whether 24 he agreed.
25 COMMISSIONER BR ADFORD:
I can't think I ever quite 1174 339
64 167 05 09
('
,/ MM i
got arouno to voting.
2 COMMISS IONER GILINSKY:
What I thought I go t f rom 3
Peter was the pnysical equivalent of a mumble.
4 (Laughter.)
5 COMMISS IONER BRADFORD:
At least a moral 6
equi val en t.
7 COMMISSIONER GILINS(Y:
And we will still want to 6
see the precise words on that b a s i s --
9 MR. OSTRACH:
Commi ssioner, one final point I want 10 to mention tnat need not be addressed today will be the
.11 designation of the presiding officer.
That will have to be 12 done separately by the commission.
13 COMMISSIONER GILINSKY:
I understand.
14 COMMISSIONER AHEARNE:
As you pointed out, some J
Gk) 15 checking will have to be cone.
16 COMMISSIONER GILINSKY Mr. Secretary, you will 17 make those mocification?
le MR. H0YLE:
Yes.
19 COMMISSIONER GILINSKY:
Thank you very much.
20 (Whereupon, at !! C0 a.m.,
the hearing was 21 adjourned.)
22 w
23 24 25 1174 340
userre stess June 18, 1979 mICLEAR 9 EGu t.A rn R Y commission SECY-79-397 POLICY SESSION ITEM For:
The Comissioners From:
Howard K. Shapar Executive Legal Director Thru:
Executive Director for Operations f'
Subject:
PROCEEDING TO ASSESS COMMISSION CONFIDENCE IN SAFE DISPOSAL OF NUCLEAR WASTES Purcose:
To request initiatien of a rulemaking proceeding.
Cateoory:
This paper covers a major policy question.
Issue:
Whether the Commission should institute a prcceeding to determine if it continues to have confidence that a safe permanent method of waste disposal can and will be available when it is needed.
Decision Criteria:
1.
Would commencement of a proceeding satisfy the request by the D.C. Circuit for further consideration and clari-fication of the Commission's position on waste disposal?
2.
Would such a finding satisfy the Presidential request for a similar finding which may be made shortly in connection with the IRG recomendations?
3.
Will making such a finding generically resolve issues of significance in licensing proceedings and thereby result in resource savings?
Alternatives:
1.
Institute a rulemaking proceeding imediately to determine whether the Comission continues to have reasonable confidence that a safe permanent method of waste disposal can and will be available when it is needed.
2.
Issue a policy statement stating that the issue of reasonable confidence in safe disposal of wastes is to be decided in individual adjudicatory proceedings.
(This altera-"v- *"!
' - 11y cv e ~"' e ', LAB F '
Contact:
J. Axelrad 492-7678 DUPLICATE DOCUMENT Entire document previously entered into system under:
ANO b
1174 30/
No. of pages:
,y.
y.. g vy 7g.fp f w p f 77 7 ; -...g, mpg yp.ypp
. J. ns,w.<-..A., - -*
g, m.
.a~.....r. r.. v.m.A. s..
. n.. e
..c*
,4 A,
~
. x m
,s,
.s.
n
~
u
~
'g
.1y',',-
'.',.}_.';b', '.^s;, :.} ~w.'
( fl
.p.
,,.Q.*'.G&,,'.,,.,Am, 'y" ne
.y,,'I
'*4 4
y
.w_ ';
~a; d.
~,
y n
n
...c
,.c.,
w _.
.c-y,m?
~
s.
y y.c
+
< +.,
- m. a..
.gu,. ;,m..,. r.y t
x
....w, O:.
~s.. ;..
~'
@s ' }p v
~,
+
.y r
- n. n. :, 9.g.. n w.. m x.
r
~
+
.-_zuw-
- r.a,y ',
-en.-
. n-..-n
~
,s
.oc
-.,t.
-a s i,u 3
r;c -..
. ;n w'
- w. ~ w;~.f,:,n>,,,
,3
~.w /,t.:
3
.~.a,.,
s
.%. 5,<
w,.,. 7.-, y,.;e.v.m m_y
. ~. w1.
v
,,, m: m,.v, a.: s a
w.
~
e p_ ' y.y
-t v.
- , y 9.;
w
+-
i..
- 1. *.~, *..' * '- y.
.*ad,.
..A,
-y x.,.
.1 g q
- r ; f w., 4 -
T'
- c.., u.. j * }.,p.4 g ', -(T 4.y 1
_a p,
- m.. t
.p
.%_.s-
.,m 4 /
..m.
c,, %. a
.s 1,
_4
..., ~,,. 4 %
m.a..
., r
~o y..,,
. n.3 _
.n 8
e
-r g,
4.,.
"v e
,.'N
'a r
s4
- 4
_'c.,
I aM; g
4 f
t a
a.
..a
~,,
v
-r a.,
a, y... m,gn.
s
.w.
m r
.,3 m m.;9
.. =
8 s __:p -f' a &.~ L m) ~,
s
. b nwy3,
~.
f-ej p 3 y..
w
~
~
v.
r 5.x.x!;
v g
.,,. ) * ;, - '
k.
1
- c4
_ - ', rp.
,j
,'.'..k,...-
e.s 3
-.g I)' [
- S I'
hi
,W l.. ~J-V ; z'wtKs j' ' J':n'f}., ;,,,
~;
s
=,
^,J.L;a.{;: Q.W:
f
..n
.c,n,, s
,*c-
- i. - -
g @..,s -, ~..n.
4 T. a,. a.. p
- -.*,,e<.
'..N
.v..,.
+..,<~e,,..e'p*,
g
.s-e.....
..e
,s...,.
w.
n
+,,n:w,.
.. c.
~,..,
u '.,,qm.. ~-.
au.
.. g m.
,..,, p 4 n,- -,
.. - g(
. m s -
.g
~,,
f.;
.g
- ~,..o w. a.
o.j
/
g.
+
- n. -
ag.. - -
9
~.
+
- y 9.W.y., N yM...
.. y%.,,"
7
.J, pW, g>_B,.4%... w.j^-t.p M M @ Cr.#,# tw W,,4. W
'-' y.;.; n. 54, ' 9.
,a" v ?
-' S :*; e,i s
g.
v,-
?,A -,,
eev.,.
, i
,w
,.;,.. n, mg n.w
. F,.y.. %.y#,s.
a$
,. m,as,s.9..
. 4 3
9 g; g n 3 -- s,.,.,.gc,; u n%-
s n
..4 1 -.
A
... u ~..w...o3.
y,.y~. y, 7,_,,,
,i m :;
- ,;,.
- u
. m se a
. m.
s 3
.s=,.
,.4. ;....
o.
- e. r.,, w-,
. n..m,
,,.a
. w,- ~
,#....e o
m.4.3,/.
-..y -, ~
,+,.'a
- g
..N
. g's ;r. e w e u
<y-
_.r,,c,%.,
- J
-x:
, y..,,,
- 4 y.-
,. r. -
st
,4 >,4 ; f q.a c
- p, * ',,id ',y, f % ; ',
?r i;.cf *'t fl;y: j;..( \\
~~~-,y.,.
+
p f
n.
?yL
4 r i; s,.
g M RATTACHMENT A J-W
,...,-,,..,e H.,
.. m.,
85
- 4..
+
f.'
. c =.g y,-
, +
5
%q s
,i I*-
-y f
a 4.
/
4*
s'4 9
4 v
Y.
', ;e,
s c
's g
- 3,
- v. -ac +
,,L
_ /"
9
?
m.
- _.v.. f q.
sg.
.,,f., %
3
, ' '., c,
3.,,,
- 1 1
41.,
~
. w'.
5
,.. e,
. e 4,;
, sl.
-. -.; g, dN 4 a
, q: ~,,f : - <,
o
,q, j.
3 s
ph
.f ;
. *..-A-0 o
o IL74 342 d-y i
^.
', e4
?
9 4
i edn
.n.
I 3
L
Attachment A
,p nam
/
jo UNITED STATES g
NUCLEAR REGULATORY COMMISSION f w] "."4y,c,g/-I y
g
.4 WASHING TON, D. C. 20555
.... r: ' e o 5.*,. 42 4
$*.. q<S.
9,....$
June 11, 1979 ii
/
MEMCEANDUM FOR:
Chairman Hendrie Ccamissicner Gilinsky Commissiener Kennedy
,Commissicner Bradford Cor.rissioner Ahearne FROM:
Stephen F. Eilperin, S _ _ :. c
(
SU5 JECT:
D.C.
CIRCUIT'S REMAND In STATE OF MINNESCTA V. NRC (No. 7S-1269) AND ITS RELATION TO THE S-3 ?3CCEECING Introduction
.r This =emorandun su marices the O.C.
Circuit's May 23 cp' nica in State of Mi masota v.
NFC, ex;3 3 ins its relaticnship to the present S-3 preceeding, discusses the secpe cf issues the Oc==ission shculd consi:ler in carrying cut the court's remand, briefly teuches upon the procedural aspects of a further Cennission prcceeding, and suggests changes in the S-3 statement cf considera:icns :c :-flect the court's cpinion and the Commission's plans to !=plement it.
Our reco.mendations are as fcilews:
the present S-3 proceeding should be ccncluded prc=ptly with issuance of s. final S-3 rule a.d acccmpanying statement cf censider ations.
Then a new Hearing; Ecard shculd be appeinted to conduct a gencric proceeding to deter. ne whether and when waste dispcsal (or failing that, icng-tern c.Tsite stcrage} can reasonably be accomplished.
Reconsideration cf the zero release number fcr waste d'spesal in S-3 shculd be a pcssible cutccme of the new generic prcceeding.
The precedures for this rulemaking shculd be primarily legislative with the Cctrission reservi ng its right to decide whether mere adj udicatory erececures on specific issues are warranted 0"-
"4a"e
~
'~~----4-*~
the Board and the precedures Tc firm than our views on the~o:hc Commissien's decision en the 3<
announced in a later nctice of DUPLICATE DOCUMENT censideration.
Entire document previously entered into system under:
UM
@ zYa 1sv No. of pages:
Attachment A.
~%,
UNITED STATES E
NUCLEAR REGULATORY COMMISSION n
,I WASHING TON, D. C. 20555
\\*esm,*/
MEMORANDUM FOR:
Chainnan Hendrie Comissioner Gilinsky Comissioner Kennedy Comissioner Bradford Comissioner Ahearne FROM:
Howard K. Shapar Executive Legal Director THRU:
Lee V. Gossick Executive Director for Operations
SUBJECT:
D.C. CIRCUIT'S REMAND IN STATE OF MINNESOTA V. NRC -
(No. 78-1269) AND ITS RELATION TO THE S-3 PROCEEDING We have reviewed the Solicitor's memo to the Comission, dated June 11, 1979, on Minnesota v. NRC (D.C. Cir., May 23, 1979).
We agree that:
(1) the Comission should institute a generic rulemaking proceeding to consider whether there is reasonable assurance that spent fuel can be safely disposed of and whether safe and adequate on-site or off-site storage capacity will be available until a permanent method of disposal is devised, (2) that this rulemaking should be kept separate frem the pending S-3 proceeding, the future general update of S-3, and the Com-mission',s, review of COE's GEIS on commercial radioactive waste management, and (3) - that as a legal matter there need be no moratorium on pending application f expansions.g/ or operating licenses and spent fuel pool modifications and However, we disagree with certain aspects of the Solicitor's underlying analysis.
First of all, we see no justification for the speculation on pages 4 and 5 as to what Judge Leventhal's real views are on the underlying question posed by NRDC--whether the Comission could continue to license reactors if it did not have reasonable confidence that spent fuel or high level wastes could be safely disposed of.
Certainly thena is nothing in the opinien that jf A Comissicn paper addressing the need for and format for the generic proceeding is in the final stages of preparation by OELD.
M.G. Malsch
~ *
" ^ 9 ).
Contact:
2 27203 g
3gf 1171 344
The-Comissioners -
' supports the OGC position that the Comission has a statutory obligation, of recent origin, to make a formal waste disposal finding either by rule-making or adjudication.
There was a disagreement between OGC and OELD regarding the law on this subject when the Comission debated the merits of the NROC petition to require a formal wasta disposal finding under the Atomic Energy Act back in 1977. OELD took the position that the Atomic Energy Act did not require such a finding as a precondition to continued reactor licensing, the Comission agreed with OELD in its response to the petition, and the Second Circuit upheld the Comission on this point of law in NRDC v. NRC, 582 F.2d 166 (2nd Cir.1978). NRDC v. NRC is not even cited in the Solicitor's memo.
It is true that the Commission (acting through its Appeal Board) held in the Minnesota v. NRC case that an evaluation of the environmental impacts of long term, indefinite on-site spent fuel storage under NEPA could be avoided only if the Comission could conclude that it was reasonably probable that off-site storage or disposal facilities would become available prior to expiration of the plant operating licenses. Northern States Power (Prairie Island Nuclear Generating Plant, Units 1 and 2) and Vermont Yankee Nuclear Power Corcoration (Vermont Yankee Nuclear Station), ALAB-455, 7 NRC 41 (1978).
Footnote 6 on page 12 of the Slip Opinion strongly suggests that the Court would have agreed with the Comission's conclusion in this regard. However, the Court in Minnesota v. NRC did not actually reach this question and it is -
unclear from tne opinion wnether, in requiring further consideration on remand, the Court was relying on NEPA, on administrative law principles requiring that the finding be based upon an administrative record wh'ch includes public input, or on the Atomic Energy Act. The cases before the D.C. Circuit were them-selves based upon NEPA while the Second Circuit decision was based upon the Atomic Energy Act. Thus, the Court's belief that the issues in tne cases before it were related to S-3 is understandable.
However, as the Solicitor noted, the focus of S-3 is quite different from the focus of the proposed generic proceeding.
For this reason we agree with the Solicitor that the two proceedings should remain separate.
As indicated above, though we agree with the Solicitor's bottom line con-clusions, we have sought in this memorandum to clarify some points of law.
J k' oward K. Sh'apar
![
Executive Legal Director cc:
SECY GC 1174 345 g
i
y
- - y m. smmmpy,wyn.n g.m;
,e -..m
.. m, m, e..w,v,+ z., n..
1.
~
a
~
- _..m ne m. m.. ~.m.
~.n.a.,s s, n.
n.;,...
+
- 7 w w.yw p_ ~q
-,.,,,sq, 3
,. ; a,px.,,,w arm.,.s.n -
~
, p.-,., %. y p:.g;y %e..y
+
a,,_.., w..q...., q. w
~r..
n
.u z m,.,m,. m,.3. ;(.,,, 7c..m.. g s.
.s.s.,
,a
<y.
~g e,,.s i.
,s
-s
-;., r,g (4
. + i f.,,:
t m3
.y g,33
,a
.N.. m,g
,e
, : he / 4
, yn y
[
- ' r t
,jn 9
w.s..=
w.,,.,
.. y g p;;
g
. >. v. -.
n
.. - xa. - 8. gj,., y.-v 9.,
,.g
..A.,n.,,,.. ~
s
- y..
1,
< s
, ~
-.+. s.
+
,m s> y. r -
n..
m
~-
=.
3 m. s
, r x.,.....,a.
z.
..,m
. ~., y.. od;.
m.
m
- ~..,
Y s
m<m.,. m ml.1
- t>,,
- b. p, a nov u: -
t M.x v
r s
y m
.vy w 3 y<,
o y e=,;+, m.3 %;;$q o
+ m.-
W a' -,-
d.
.tb p, /y%.y, z.J F '
- M^*
+ 3.;
- w Q.f K,
\\
,_ g 3 3.,.
<Q' ty.
e
+
s a. g.,.
g s,._.
y
~
ygy..,.y,
i e.-, -z w w,-., q u,myg, y. v.,s.yp.,,
_,.;.Ly,.
_(
. g.r
.- ~J g y. a, p '- r 1. /. ; m. g. p _pm.y u m ~n+ p w.':,p.g=,
%<4 n y-,;
~
~
+ -w ngw 19:
w
.c y y.s s p.
> 3,-
- ~.e>y
- 3 ;
y, y.y g g g,,
a 7-g s.
y<
^ g
.%. u g ;f w
+
s
- .y ' /m.@, ;.3a, y,4 f -
7-tv ay 4.,
'4:.
, // N, -
. e.j.',, s 1
,g l
T y.
gp...
~6 s
- w
.7. g.:
t s,,
4 g,, yo...
m,,w
). ; p; m
y
-c w.
- a...
~4s
..v,.. o...,n...-s c* }y r v,.
,,r
.s e,
~ v...
~... :.
(=,*
^.
. ( Q.-
y
..$-, ^ i r s'
(
b*
- m*,
~. g,f.P s
\\
.f 3 J-
'; 3 v g4;yw,',w
, 8 a
,e.,~-
.w o
4 - 4
.m u
-.w 2-
- o
.r e w.t. h+,t c
r +...
%, a 3m
.n.m
,,q.
o s. p :
p n,~
,v.
.e 4 ' ng a,A iu
- >; y.
. e 3
s s-
,y r
c
.su
- u. a. - -..
s, r nc,
- 7. c j*
..8;,..7 s, 4,wm g.s,.w. g
- so
.,. : ~,.. f n;N.,
%. ;.,s c..
rm
,.~
s
-t.
v.~,
a w,r ea.ne..
.m
~a~.w..,,*.w,,
,.,, ~. ~.,.
., n.
., ' ^
., n.
- c.
n.4 < j., %v.,*n.v, +.,q s*-
l,. u. )
g -
a,...o;.y a n..o^ f.l,; 4., m..... J.. %, @A p@g s
'gQ @QTM.sk ' u-
. y. !,
s
+9
%.my y '.y, WW, :. w - -
'.m ~... m n;
y.,
e,. ;, -
, h>.- --.. m. >
~ ;> s., r%rg y.p,, y,3 K,,
n y
- g
, 3
'6, ; -
a
- 7. A -.
.v-c y e..e
-s...
av.
s.-
_.. 3. a g,hQ. g..M.nh.-.c;W
)ym.qg%
wpz.
.4*-
y.3 '.x,i,,
sn.
f.
s
-w-
,y%p#
.r
- u., - s e,
- f.
4 f.
w,4,.
,.~,. q i [ ",%. p %,f g.j pM,.: y;,3 i %-? J
- ' ' s' i n > -
, ';d#:y ::y. -; y: c: V
, - s f
a.
e.v
's
., h: ' P;.S.y-;.y r
- V n' ".<
. ~;
+. -
'M J > -.
n'
/..,
ie.
, y-Y,.
- 3. +.. 3 p'
,, M L.
,t y. W. '.
i
.a 6
.s&. a
- s;,,', Q m.q,, :< Q,,...,
r>;N.,2 -
o,r..
c
.s g j.,5.f. f,.. w:
f s {-&. 'b;,in i f,af &, f f.u.,
r-M x. f ;r&,' \\ - "d,;/ y fa -
' 4. J' Q'M p -
n l. ll T L:.
,s,r 93, s.
m.# - j e.>
>t g Q.:,+^g. m, #yl;y g,i ', &*M.%.$.) i.z.j' g,
- s
.a 1
N
'YW..
f.~
~,,g. %.} Q /
M,,,^, ',x ', ; di%q m
o.
- 2..b,,, W w..
%,. %o,.,4.. -
~..t. r. s u. ;p,-~
,e - <
.f,',
- 'r gsis.
..j.r g
+
.a.. ;
.n..
,%Q,y; ts->F CATTACHMENT B " Q m,':yW; %
~g.
,9
^ ggt? -
n@d.sB h L n
e en -^ - ',% w,
,s'. r. A' C
- ,~
s
$WW e<
3.g /n.. m,p ;-t..
. u,ni. 13., a,.
,7 W
~,qq, ;per wn.y 4-.. '
w,;-
. ~.
,.. t,,.;., 9,s ;-.. +,s ; c
. _ g, i
- n.. +
.a,...
w
,e r-st
.c,
yp
,+
Y
--en v,
' =,' %
4 r'
n.
p y
- s
'.f g
- 2 i
1 3
,, Q
';-**?_[d..; f q
g y
.: ' 'J :
e' Q lH, 7.)
e
,,)'
.s
,'%'e
, q a,.i f..-
,J3f ca..TA
~k.
.; y e
's 4
j-p..f, y, -.
c
-a,.a g,
,1 m
L 1,
,.j -
, z ;)'.Q l'-
,ku m >. >
o e_.y s
v
- ,?'
+#
E 4'
i% ?)
,.g~
/
, p
- . llt p, t
,5 f,
, ;.e.
e
( -
.eg
,f f
4
.h 4
9-c',.
t 4
a w
.A r
I 4
o.
f 4
I d
g f
s 3
..?,
^
\\
- ., ' (. s*
8-
,[
9
-r.,f
-.(t 1-4
>*.4-
.- /,
g
_g g
--A' y
'I,,,
I t '
4 i.A ~
d
. ~r' I a
t
+
^ak-"I' e
,'2
w,v,\\.
.-[<..
'g, s.
,,v.
3
,4'-
- 1. ' b.M.,4 g4 f,i.
',r
..,s
/,
f y,.
r j e'.sye
'a*
-?
?
.,, 4
'e,.-
f _~*R g. >Q-- l- '- t ^ $. j&lg s,_y yks.p p,,.
g s_,z 3
n' d.
e q_
s V, *yg,yQg.
,\\?
q r,
.g*7.. p~.
2,f -
s o.3,
.s:
- a j
, e
- J., -
,(
1 -- s.
e-3 a
-s A,
9 n
L 4
).
T 4
4 g
'.[>'
I 4
s.:%
y.
T 4[
p5 e
If s - $
w..25 s.<
7 *8 Gv a h
f 4
I, 6di
s;.
1.
p f
w N -
ig A
1
.Y'..
t a
g*
p
, k += h. p. c. 1)J C 'l
.f i.
~ }J (,,-,j r n -
. h. ',,f, d g.J. :
e s
's
- 'o"
<w
,./
4 I.
.;;^y,(,' '
Am.
we ~%..
g
- L 'S
,. (4 g'*
.i'
~
m '
aq y
/
1 3
c. +.
Attachment B
/p.** arcg #0 UNITED STATES 8 $,,, ',,g NUCLEAR REGULATORY COMMISSION
. C WASHINGTON. D. C. 20555
' +,'.....#
. g $ fF3 MEMORANDUM FOR: Howard K. Shapar Executive Legal Director FRO 1:
William J. Dircks, Director Office c F Nuclear Material Safety and Safeguards
SUBJECT:
PROCEEDING TO ASSESS COMMISSION CONFIDENCE IN SAFE DISPOSAL OF NUCLEAR WASTES In accordance with your memo of June 14, 1979, my comments are given belcw:
Con number 3 under Alternative 1 on page 5 should make clear that resources would be siphoned off of rules and regulatory guidance which are new in the critical path for the national program.
The present wording ".... siphon resources from other important projects." does not convey the true picture.
Pro (4) under alternative 3 on pages 6 should make clear that the resource to be depletedame are working primarily on rules and regulatory guidance now in the critical path of the national program.
Review of the GEIS is
- aking secondary priority.
1174 347 J]n r> PPT:
J a
) 7DS W/O Do
5 ADV Alternative 5 The Comission itself should hear the arguments.
The Ccmission would receive both oral and written statements and vould ask questions of the participants to develop the record.
There would be no provision for discovery.
pg
- 1) Allows the Comission to hear the evidence on this important r.ational question directly without filtering through a hearing board or the staff.
- 2) The ultimate Ccmmission conclusions will likely derive frem a balance of expert opinion as to the future course of events.
The expertise on this subject does not rest with the staff.
Direct contact with the expert opinion would probably result in the best feel for the likelihood of future developments.
- 3) Direct Ccmission involvement could result in better quality presentations and the most highly qualified participants.
- 4) Diversien of staff time from developt.snt of rules, criteria and technical guidance which is now on the critical path of the national waste manage. Tent program would be minimized.
Cons
- 1) May require more Commission time.
- 2) May create considerable public and media interest in what will likely prove '
to be a most difficult judgemental issue.
Add to discussion:
It should be recognized that the vast majority of the knowledge and excertise on whetner waste can be ultimately disposed of lies outsid t of NRC.
The staff prcgra have been directed to development of criteria and regulatory guidance.
1174 348
f.
. ; d'.
The IRG met for many months on tnis suDject and came to no clear cut conclusion.
Any proceeding conducted now would have no information not available to the IRG.
It would appear then that the " confidence" question would ul:imately beccme a judgement based on about the same information over which tie IRG deliberated.
The -Ccmission conclusion would likely be a close judgement based on a composite of expert opinion.
This could best be done by hearing the issues directly.
Since the IRG conclusions were tentative, the value of a hearing board evaluating the issues again is questionable.
NMSS strongly urges Alternative 5.
i.
liam J. Dir s, Director Office of Nuclear Material Safety and Safeguards 1174 349