ML19241B190
| ML19241B190 | |
| Person / Time | |
|---|---|
| Issue date: | 05/29/1979 |
| From: | Bradford P, Hendrie J, Kennedy R NRC COMMISSION (OCM) |
| To: | |
| References | |
| REF-10CFR9.7 NUDOCS 7907130078 | |
| Download: ML19241B190 (17) | |
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DISCLAIMEn This is an unofficial transcript of a meeting of the United States Nuclear Regulatory Commission held on May 29,1979 in the Commission's offices at 1717 H Street, N.
W., Washington, D. C.
The meeting was open to public attendance and observation.
This transcript has not been reviewed, corrected, or edited, and it may contain inaccuracies.
b The transcript is intended solely for general informational purposes.
As provided by 10 CFR 9.103, it is not part of the formal or informal record of decision of the matters discussed.
Expressions of opinion in this transcript do not necessarily reflect final determinations or beliefs.
No pleading or other paper may be filed with the Commission in any proceeding as the result of or addressed to any statement or argument contained herein, except as the Commission may authorize.
F.
p r
0\\
S\\3 t
1-A i
UITED STATES OF AMERICA 1,
2, NUCLEAR REGULATORY COSS1ISSION offman 3
CObSiISSION MEETING I
4, on S-3 i
Si I
Room 1130 6
1717 E Street, N.W.
Washington, D.
C.
7:
I I
Tuesday, 29 May 1979 8!
1 9'
The Commission met, pursuant to notice, at 3:25 p.m.
10 3EFORE:
DR. JOSEPH M.
HENDRIE, Chairman II l 12 RICHARD I. KENNEDY, Connissioner 13 PETER A. BRADFORD, Comissioner 14 JOHN AHEARNE, Commissioner I
15 ALSO PRESENT:
16
- s. EILprplN 17' L.
Slaggie 18 G.
Sege 19 I
a 20 1 b\\1 0\\\\
22 i
.I 23 1
24 j scesecer t nexmn. \\ec.
25 t
2 CR 5074 l
{
i HOFFMAN I
t-l&2 mte 1 l
CEAIRMAN HENDRIE:
Why don't we gather, on the 1j i
I f,
i subject of the S-3 proceeding -- why don' t I ask the counsel's 2
1
)
I 3L office to fill us in?
I 4
MR. EILPERIN:
As you know, this meeting was i
i scLaduled before Judge Leventhal's May 23rd decision in 5
6; State of Minnesota versus Nuclear Regulatory Commission.
At t
7 that po'7t in time, prior to that decision, it had been hoped that-the Commission might again reconsider the statement of a;
l considerations dealing with the S-3 rule in light of that 9
i 10 '
court decision.
11 I can briefly go through it, if you wish.
I I
I 12 COMMISSIONER AHEARNE:
Do you intend -- does the.
13 general counsel intend to send us some sort of a summary la analysis of the significance of that opinion?
f 15 !
MR. EILPERIN:
We certainly can do that and certainly.
I i
16 '
will do that.
17 COMMISSIGNER AHEARNE:
_t seems a have been of 18 some significa.'.ce to us.
19 MR. EILPERIN:
Fine, we'll see to that.
20 i We had sent up, in light of that decision, an 1
extension of the interim rule based upon the intervening 21,
22 nature of the Court's decision.
23 '
CCMMISSIONER AHEARNE:
That's what had led me to 24,
conclude that you' d be sending up an analysis of it.
Ace Federal Reco,Ters, Inc.
25 MR. EILPERIN:
We ll, we skipped ahead one square and I
517 0i2
3 7.te' 2
[
i i
1 actually set up, jast fcr purposes of general discussion, the 2l sort of changes we woulc propose in the S-3 statement of i
3l considerations based upon that.
For the purposes of today's discussion, we're not asking that the Commission vote on S-3; 4
5 we're not asking that the Commission vote on these proposed 6
changes.
We realize that those proposed insdrts were sent up very late in the day and that the Commission might want to 8
have that accompanied by an analysis of the Court's decision.
9 Essentially, what the Court's decision does is to l
10 11 remand to the Commission, in the interest of sound administra-12 tion, for the Commission to consider whether there's reasonable assurance that an off-site storage solution will be available 13 14 by the years 2007 through 2009, the expiration of the plan't's i
15 operating licenses, and if not, whether there's reasonable 16 l assurance that the fuel can be stored safely at the sites i
17 beyond those dates.
The Court's decision comes in the context of two 18 spent fuel pool expansions which the Appeal Board had approved 19 20!
and the Cecmission was planning to review, where excluded from i
i consideration in those proceedings were issues dealing with 21,
i 22 l both the environ = ental ef fects and safety issues of long-term 22 waste disposal.
24 The licenses were challenged by the petitioners.
Acs Fedef al Reporters, irsc.
25 CCMMISSICMER KENNEDY:
Would you remind me which 1
517 013 1
4 1
mte 3 i
t i
i l
i 1l licenses?
l 2
MR. EILPERIN:
Prairie Island and Vermont Yankee.
I The licenses were challenged before the Court.
l 3i l
l COMMISSIONER KENNEDY:
Are there others affected' 4
i l
3 directly by this?
6 MR. EILPERIN:
It's a generic issue, so I would I
i think -- and the Court recognizes it as a generic issue -- I J
7' s
t i
i would think that in principle the Court's decision extends to
{
8.
l l
all spent fuel pool expansions in that general area.
The Courti 9
l 10 t recognizes that it is a generic.
l i
i 11 1, COMMISSIONER KENNEDY:
The effect, then, is, until 12 the Commission completes a generic review, that the presently i
l 13 requested fuel pool expansions cannot be licensed?
j l
14,
MR. EILPERIN:
No, that's not the consequence.
COMMISSIONER KENNEDY:
What is the consequence?
t 15 l l
i 16 !
MR. EILPERIN:
The Court's decision was quite clear i
that it does not set aside or stay the challenged licenses.
17 18 CChMISSIONER KENNEDY:
I read that.
Precisely what 19,
does that mean?
20 MR. EILPERIN:
It says that they' re not pulling the i
21,
approval for the spent fuel pool expansions that were 22 i authorized by the Ccmmission.
m,]
CCMMISSIONER KENNEDY:
Yes.
That's not what I'm 1
24 '
speaking of.
I' m talking about tnose not yet authorized.
. t.
Ace-Feceral Reporters, Inc..'
25 MR. EILPERIN:
That correct.
I was going to reach 9\\1 o\\4
5
.te 4 l
1 that momentarily.
I The end of the Court's opinion, in footnole 19 --
2 I
i i
3' footnote 10, excuse me -- says that the Commission may integrate 1
the issues which the Court has remanded to it with the pending 4
5 S-3 proceeding, designate a follow-on generic proceeding, or follow such other courses as it deems appropriate.
And to my 6
mind, what tha Court is saying in 'that footnote is that the 7
Commission is at liberty to hold a generic proceeding, generic 8
I rulemaking proceeding which is dealing with the issues identifie-9 1
10 in the Court's opinion, and that the Commission is not bound in 11 that determination from deciding requests for spent fuel pool I.
12 amendments during the pendence of that generic situation.
did they talk about the !.
~
13,
COMMISSIONER AHEARNE:
- Steve, 14 balance of these cases?
15 MR. EILPERIN:
Excuse me?
16 l COMMISSIONER AHEARNE:
On page 16 they talk about 17 the balance of these cases.
Are they speaking there of the 18 o ther?
This is the top of the page, third line from the end 19 of their opinion.
20 ;
MR. EILP ERIN:
What "the balance of these cases" 21,
means is that the :. Court disposed of the petitioner's contentions i
l that we had to hold some sort of adjudicatory proceedings and 22 22 ruled against them on those issues.
So that 24 COMMISSIONER AHEARNE:
Strictly en the adjudicatory 4c..s.ersi nexrters. inc.
It comes back to us for further consideration.
- Now, 25 ] aspect.
g 015
m.te ' 5 1
6 I
I what does that exactly mean?
2j MR. EILPERIN:
The Court specified what ic meant, andj i
l 3'
that is, for further consideration whether there is reas onable :
i l
i 4I assurance that an off-site stortge solution will b(. available l
S' by the years 2007 to 2009, the expiration of the plant's 6
operating licenses, and, if not, whether there 's reasonable 7,
assurance that the fuel can be stored safely.
I 8l COMMISSIONER AHEARNE:
I mean specifically --that's 9
speaking of the balance
- of these remaining two cases, i
1 10 '
vermont Yankee and the Prairie Island.
Does that mean it 11 :
goes back to the Licensing Board, the Appeal. Board, it stays i
12 with us?
13 MR. EILPERIN:
It goes back to the Commission and 14 the Commission can then enter whatever order it deems appro-1 i
15 priate in ter=s of how the Commission is to handle this.
i I
l 16 l COMMISSIONER AHEARNE:
So that as far as those two l
17 cases are concerned, there's still another action that we have 18 to eventually address?
19 MR. EILPERIN:
That's correct.
The Commission i
201 itself, if it wanted simply the Appeal Board to conduct that 21' proceeding, the Commission would have to order the Appeal 517 016 22 Board to do that.
23 h We had crccosed, in the changes in the S-3 statement 1
24 j of considerations, we had proposed that one would not want the anpeams nemmn. nne.1 I
25 issue decided in individual adjudicatory proceedings, that the h
.I
7 ate 6 l
1 issue is a generic one and it should be decided ir. a generic l
2 proceeding.
It lef t up for later consideration by the 3
Commission what particular procedures it would want followed 4
in a generic proceeding.
5 The Commission, of course, can order more than 6
notice and comment or make it more adjudicatory.
7 COMMISSIONEF KENNEDY:
I noted the Court was somewhat more explicit in this regard than I had anticipated they would 8
9 he in talking about essentially the legislative ch'racter.
10 MR. EILPERIN:
Yes.
I think the Court's decision is 11 a very fine decision and a very fine opinion, and I think that i
12 the Court is making quite clear that the kinds of predictions 13 that are involved in trying to predict whether or not wastes 14 will be safely disposed of for many, many thousands of years 15' is a prediction and is the kind of judgment that is not 1
16 similar to someone going through a red light, with someone i
17 going through an intersection where the light was read.
It's l
1 18 not susceptible to that kind of precise f actual judgment.
And 19 there's a clear reflection of that in the opinion.
COMMISSIONER BRADFORD:
I don't know that that tells 20 21 !
you what the procedure should be.
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22 l MR. EILPERIN:
No.
The Court certainly has said I
231 that the Cc= mission has a frea reign in choosing what 24 procedures it wishes.
And we thought.he Commission --
Act Feceral Reporters, Inc.
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COMMISSIONER KENNEDY:
The Court specifically says, l
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quote:
1j 2l "The breadth of the questions involved and the f act l
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6 As I said, I thought that was a rather more specific I
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would make.
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COMMISSIONER BRADFORD:
I think they left it up to i
10 us.
11 COMMISSIONER KENNEDY:
But it seems to me that in j
t 12 leaving it up to us, it auggested a measure of guidance 13 beyond that which I would normally have expected to see.
14 COFMISSIONER BRADFORD:
Yes, but don't do any less 15 than that.
16 MR. EILPERIN:
We thought that the subject of what 17 procedures the Ccmmission might choose would be the subject 18 of some discussion before the Commission, and for that reason 19 we were trying to divorce the S-3 statement of considerations 20,
from that judgment about what procedures the follow-on i
21 proceeding would utilize.
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U)b 22 COMMISSIONER AHEARNE:
Now, in various places in 22 this decision they refer to the current S-3 proceedings.
What 24 '
is the relationship, the linkage that they make to it?
Ac seeersi a..oon m.inc.
25 MR. E!LPERIN:
I think it's simply reccgnitien --
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I well, to back up a bit, our brief before the Court had argued that the Commission had considered, in promulgating the 2
1 interim S-3 rule in an effective generic proceeding, issues 3i dealing with whether wastes were likely to be disposed of --
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3' well, whether wastes were likely to be disposed of.
The S-3 The proceeding had not been referred to by the Appeal Board.
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7l Appeal Board had simply made reference to the fact of the I
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NRC's rulemaking petition.
So in a sense, we have argued to the Court tnat the i
10 11 S-3< proceeding had treated some of these issues which were l
12' being raised by the petitioners, and that it was fair for the Commission to treat generic issues cutside individr '.1 regulatc;y 13 14 contexts.
15 It also advised the Court that S-3 dealt solely with 16 NEPA issues, and there may wall be a nor rigorous standard i
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in making safety judgments under the Atomic Energy Act.
17 1 l
think the linkage was simply that the Court is aware of what 18 19 proceedings the Commission had before it, aware of the fact l
that S-3 was looking at some of these issues in a NEPA 20 i
and wanted the Ccmmissicn to have discretion about i
21
- context, i
whether or not the Commission wanted to fold this into its 22 22 y ongoing S-3 proceeding or treat it in some other manner.
24.
I think one thing that stands out cuite clearly is 2ce s cere neoo,wn. inc. d 25!
this decision was written in three weeks.
The case was argued h
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The previous S-3 decision tock something like a year t
2lj and a half for the D.C.
Circuit to issue.
Judge Leventhal was j 4
3, well aware of what stage the S-3 proceedime was at.
I made i
representations to him along that line, sent him copies of the 4
5 Commission's extension of the interim rule.
And I thinx one 6l: reason for the Court's rather quick disposition of the case --
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-- although I think it was a thorough discosition, it was still i
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8 a quick one -- was precisely to give tne Commission an oppor-9 tunity to decide whether or not it wanted to use the S-3 t
i 10 proceeding as it now stands to consider some of the issues j
i 11 I which the Court has isolated.
j 12 So ln a se.:c, I think it was co give the Commission I
more freedom that the Court acted this way.
l 13 3
14 CHAIRMAN HENDRIE:
It seems to me that for ou f
i 15 purposes today I think it would be useful to have at least 16 some analysis of the decision.
I think when we come in due 17 time -- not too long frem now, I trust -- to look at the way 18 in which we ought to reflect the Columbia Circuit's, the 19 District Circuit's decision, in the S-3 statement of considera-i tions, we'll want to talk about - - to begin, I think, then to 20 21 have some i dea of what we've got in mind by way of generic 22 proceedints, just because it may condition in some way the 23 6 reference to it.
Or maybe it won't change the reference to l
24.l it at all.
Eut nevertheless, I think most of us would feel AceJederat E tporten, Inc.
25 nore ccmfortable having had scme discussicn amongst ourselves 31/
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as to the nature of that proceeding or what its timing might l
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And that in turn may offer some guidance as to the f
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precise words to go into the S-3 statement of considerations.
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I think we need a little time to chew on that and to think s
I about the draft that you've prepared and about the remarks lad a:Tued
'+ hat you, hopefully, will soon make to us about the decision,
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I sent these vou made now.
And we'll then schedule a e
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For today, it's my pleasure to recommend to you once i i
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Dhe MR. EILPERIN:
Better cause, I would say.
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CHAIRMAN HENDRIE:
'I'm not sure that causes come f
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=8e the way the Sears, Roebuck catalogue
[ good,betterandbest,
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But if the last one was good, this one is, I would ne l
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18 CCMMISSIONER KENNEDY:
Or at least as good.
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19 CHAIRMAN HENDRI?-
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(Laughter.)
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COMMISSIONER KENNEDY:
I was at the last meeting and f
5 23, I thought that had a lot of class.
I will not describe which 1
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class it was.
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CHAIRM.'di HENDRIE :
Comment noted.
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1 The one question I would ask, Fteve or Leo, you 1
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2l recommended July 30th, two months.
Is this because you j
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perceive complexity in the issue or you're just getting sick f
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2 5i MR. EILPERIN:
It was more that I did not want to
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I thought --
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length of tim s in order to dispose of this.
I mean, one
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about what the S-3 statement of considerations might need to I
i 11 reflect the Court's decision is simply to indicate what we had j i
12 in mind.
bD 13 CHAIRMAN HENDRIE:
Yes, I think it was hcipful.
~~
14 MR. EILPERIN:
I certainly think the Commission i
i 15 could dispose of this far more quickly than July 30th.
t 16 COMMISSIONER BRADFORD :
Let's see.
At some point 17i before July 30th we'll actually have seen the narrative.
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MR. EILPERIN:
I think the staf f is aware that the 19 Commission will -- I think the staff is aware that the 1
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20 i Ccemission had wanted the narrative by June 30.
I think that 21 :
was the awareness.
That certainly was the memorandum cf the i
22 '
staff requirements, following the paper filing of the I
23 l February meeting, which did outline in part what was expected 24 in the narrative.
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But I leave that up to the staf f as to wr.at their
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understanding is.
CHAIRMAN HENDRIE:
I would guess somewhere close to 2;
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it, although I don' t know how.
I COMMISSIONER BRADFORD:
Le t me j us t add, is that 4
about a correct statement of the staff's understanding?
5 6
MR. MURRAY :
I can' t speak foi the staff, j
7 Mr. Bradford.
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COMMISSIONER BRADFORD:
Is there anyone here who can?,
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l CEAIRMAN HENDRIE:
I don't know.
I haven't asked j
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10 Cunningham recently how he's coming with the thing, and I 11 don,'t know.
I don' t believe those groups have been heavily 12 impacted by TMI.
on the other hand, there are some -- there is some 13 i
i 14 carryover into that area -- other facilities, emergency plans I
So I can' t tell whethe.- things are interfering 15 and so forth.
16 l at the acment, and I don't know whether he's sort of an I
I 17 schedule..
18 In any event, when we see a narrative we'll certainly 19 want to discuss it here and out of Commission discussions, t
i 20,
perhaps a redraf ting of those, would presvr. ably come a filing of that narrative for comment purposes in the Federal Register.
21 of picking up the narrative I think is dcwn the 22 So tha t sort 23; line, and I would not want to postpone the consideratf.on of t
24 ;
the S-3 rule as we have it at the =ctent.
AC9+Eederal Amrters, it'c,,
25,j You know, in view of the history, Peter, I wouldn ' t O
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2 il prcpoce not to build that into anything that we do now.
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What do you think?
Could you make it June 30th?
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SI COMMISSIONER AHEARNE:
I guess I'm willing to cefer i
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7 COMMISSIONER KENNEDY:
Without reference to the i
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state of Steve's wisdom, I would go with July 30th.
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9 COMMISSIONER BRADFORD:
It's all right with me.
We will certainly try and get a paper l I
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10 1 MR. EILPERIN:
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11 to the Commission in a week's time.
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12' CEAIRMAN HENDRIE:
If you will come along with that. :
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13 Actually, because we've had a rather useful discuss' a here I
14 about the background, the paper could briefly summarize the 15 points of the decision.
And you =ight think a little bit i
16 l about when we go with the generic proceeding, because I think 17 some of that discussion, I think, is going to be necessary la before we're all ready to put the appropriate language into 19 the S-3 statenent for consideration.
And I would hope to be 20 able to schedule a Commission.eeting for that purpose in i
21 ;
like two weeks.
22 All right.
Let us agree, if you like, then, on 22 I July 30th.
What I will ask my cclieagues to do is to jcin me I
24 !;
in voting in f avor of the draf t crder prepared by counsel's acesecew neverws. nee.1 25 i office.
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(A snow of har ds. )
i CHAIRMAN HENDRIE:
So ordered.
2 3
Thank you very much.
I 4
(Where upon, at 3:30 p.m.,
the meeting was adjourned.)
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