ML19242B986

Transcript of 790711 Meeting in Washington,Dc to Assess NRC Confidence in Safe Nuclear Waste Disposal.Pp 1-57.16

ML19242B986
Person / Time
Issue date:	07/11/1979
From:	Gilinsky V, Hendrie J, Kennedy R NRC COMMISSION (OCM)
To:
References
SECY-79-397, NUDOCS 7908090625
Download: ML19242B986 (58)

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NATICNWIDE COVERAGE. DARY

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DISCLAD!ER This is an unofficial transcript of a meeting of the United States Nuclear Regulatory Co= mission held on Wednesday, 11 July 19 79 in the Comissions's offices at 1717 E 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

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inaccuracies.

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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 Co= mission in any proceeding as the result of or addressed to any statement or argument contained herein, except as the Cormission may authorize.

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2 CR5873 1

UNITED STATES OF AMERICA

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2 NUCLEAR REGULATORY COMMISSION

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S PUBLIC MEETING 6

DISCUSSION C ' SECY-79-397 - PROCEEDING TO ASSESS 7

COMMISSION CONFIDENCE IN SAFE DISPOSAL OF NUCLEAR WASTES 8

9 Room 1130 10 1717 H Street, N.W.

Washington, D. C.

11 Wednesday, 11 July 1979 12 The Commission met, pursuant to notice, at 2:55 p.m.

L 13 BEFORE:

14 DR. JOSEPH M. HENDRIE, Chairman 15 VICTOR GILINSKY,, Commissioner 16 RICHARD T.

KENNEDY, Commissioner 17 PETER A. BRADFORD, Commissioner 18 JOHN F. AHEARNE, Commissioner 19 '

Messrs. Shapar, Gossick, Kenneke, Ecyle, Bickwit, Dircks, 20 and Eilperin.

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22 23l 24 AcsJederna Aeoo,ters, Inc.

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2 CHAIRMAN HENDRIE:

Okay.

The subject of discussion 3

is, I guess, also in part a questien whether, but I would

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4l think more particularly the nature of a proceeding that 5

the Commission would institute to satisfy the request of 6

D.

C. Circuit in a recent decision which said that we should 7i give some indicatien of our confidence that waste can be 8;

disposed of, at least to the extent that propositions to 9

enlarge the spent fuel pools at existing reactor sites bears 10 a reasonable basis for believing that the spent fuel pools

'I will not become the ultimate repository of the spent fuel 12!

for a long time, or much beyond, at any rate, the operating

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13 license period of a. particular facility.

M TJe have had some brief discussion of this subject 15 and the need for such proceeding in view of the court's 16 !

decision and other facrors which gather before us in 17 connection with our discussiens on the proposed S-3 rule i

I8 earlier, and we asked that scme recommendations for the sort 19 of proceeding of hcw it might be formed in scope be made.

20 We have a paper frcm the Executive Legal Director, 21 and I assume General Counsel is ready to cc= ment and add his 22 thoughts on the general subject.

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23 Suppose I stop crying to collect a summary and v

24 introduction en this subject and see which of Len and Howard

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y Ac a.oerm n. m n m,anc. j 25 might like to take up the detaile.

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MR. BICKWIT:

Well, it's Howard's paper.

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CHAIR N HENDRIE:

Well, maybe since Howa2:d has 3

got the paper in hand, he's got his elbows firmly on the table, let me ask you to take us forward in this discussion.

5 MR. SHAPAR:

I would be happy to defer.

6 Mr. Chairman, as you indicated, we are here today 7

primarily because of the D.C. Court of Appeals decision 8

indicating that some sort of finding should be made in a 9

proceeding.

10 The court did indicate in its own decision that 11 :

there were three basic options the Commission could use, 12,'

folded into the S-3, and I think the previous discussion O

13 indicated for many reasons that's not a very good idea 14 to use another generic proceeding, or go ahead and do it by 15 other appropriate m,eans.

16 So the Commission does have options as to how I

it wants to go about setting up a proceeding to deal with 18 ! the question of its confidence or lack thereof in the 19 i ultimate safe disposal of high level waste, or some finding 20 [

short of that.

I 21 '

I think it might be well if I just went ahead I

22 and described two sets of options for you which would 23 briefly summarize the paper, and then I can get into as 24 much further detail as you all would like.

Aa Federal Reporters, Inc.

25 The first set of options, I think, is what kind of

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I a proceeding, and although the number of options of both

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categories is infinite, these, I think, fairly portray the 3

basic practical and legal options.

4 First of the three options is to start a separate S

rulemaking proceeding to determine whether the NRC continues 6

to have confidence that a safe, permanent method of waste 7

daqosal can and will be available when needed, and whether 8

safe and adequate onsite or offsite storage capacity '--

9 COMMISSIONER KENNEDY:

Is that "can and will"?

10 MR. SHAPAR:

I believe those were your words, when 11 you denied the NRC petition.

I just repeated them.

12

-- and whether safe and adequate ensite and I3 offsite storage capacity will be available until a permanent 14 method of other disposal is devised.

15 COMMISSIONER AEEARNE:

That goes beyond --

16 MR. SHAPAR:

That goes beyond what the court 17 indicated, and a strict rule was necessary.

l 8

COMMISSIONER AHEARNE:

That offsite storage would be 19 j

available?

i 20 l MR. SHAPAR:

The specific ruling of the court l

21 asked the C mmission to decide "whether there is reasonable 22 assurance that an offsite storage solution will be available 23 by the years 2007 to 2009."

24 COMMISSIONER AHEARNE:

It doesn't address --

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25 MR. SHAPAR:

It does not address any specific

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ruling, but there are other factors that bear on that, r

2 both legal and otherwise.

3 The second one is iss e a policy statement, leaving the matter to individual adjudications.

I don't know 5

of anybody on the Staff that would reccmmend that.

I think 6

there are 21 proceedings, and whether this would become an issue,

I maybe five or six are contested, something on that order, 8

-would be an enormous duplication, I think, an unnecessary 9

duplication of effort to try this generic questi~1 over a d to over again in individual. proceedings.

11 The third option would be to issue an ediance 12 notice of proposed rulemaking indicating an intcut to hold 13 a rulemaking after the DOE GEIS is issued on commercial 14 waste management, and as the paper indicates, we think there 15 '

are several glaring disabilities to that course of action, 16 the main ene being that the GEIS, I think, is directed at the 17 year 2000.

18 We are talking about a much broader question, and 19 I think it is fairly calculated to unnecessarily delay the i

i 20 :

GEIS, but the main reason would be --

i 21 1l COMMISSICNER AFEARNE:

I'm sorry, I'm really missing - the main reasons for not going to the -- ~ ~

22 23 l is essentially waiting until the GEIS or first the GEIS is V

24 focused upon --

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25 MR. SHAPAR:

We think it has a much narrower focus

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I than the decision which the Commission would be making.

2 That's our feeling.

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3 COMMISSIONER AHEARNE:

What was the issue t

4 of delaying the proceeding?

5 MR. SHAPAR Well, the GEIS is going along with 6

its own specified scope and broadened it.

I think at this l

7l time would hold up the issuance of it. I think unnecessarily.

8 I think it's also fair to say, however, and I think I'see 9

the point that you're driving at we certainly would i

10 -

want to look at the GEIS in connection with the rulemaking i

11 that we advocate.

12 I think that's perhaps your point.

A 13 CO20iISSIONER AEEARNE i I was really just trfing to 14 understand that.

15 MR. SEAPAR:

All right.

Then having made a 16,

selection among those options or any others that I brought I7 '

to the table., it would seem this second set of options are 18 fairly clear; and the set of options that has confronted 19 '

this Commission several times in the last few years hold a 20 f generic rulemaking proceeding, what procedure, what kind of l

21 l proceeding do you want.

22 The typical choices are notice and comment.

I 23 might add that as a legal matter, any of these probably v

24 will suffice under ordinary circumstances.

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,J 25 The first option would be e

8 ar6 COMMISSIONER KENNEDYi In circumstances assuming A.L they are either or are not ordinary. they will suffice in 2

these circumstances?

3 MR. SHAPAR-What I meant in my statement was 4

this:

Vermont Yankee stands for the proposition that courts 5

are n t supposed to dictate what kind of procedures this 6

agency uses, as long as it complies with the Administrative 7

Procedure Act.

Notice and cccment rulemaking is acceptable.

g There was a sort of a caveat or exculpatory phrase-9 in the court's language about exceptional circumstances or 10 extraordinarily compslling circumstances. or something like 11 i I

that.

We don't think it exists here.

At least, I don't.

12 The second option would be a modified legislative 13 type 'of proceeding, and that is we let anybody present ja testimony and evidence, and the Board asks questions. and 15 people can suggest questions for the 3 card to ask-and the g

I Board would have discretion whether to ask those questions j7, i

jg l or not.

Now. that is what is actually used in the Sc3 39 l

proceeding. and the access proceeding. although the original 20,

i notice indicated you could have hybrid, but the hybrid was g!

I not considered necessary.

2 4

CCESSICER EDSM Let me ask y m..what is a 23 possible outccme of these proceedings?.

24 AceJ.e.rw n. con.n. inc.

MR. SHAPAR.

A rule, I think.

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COMMISSIONER GILINSKY:

That says what?

Yes, you

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2 have confidence?

3 MR. SHAPAR:

It says conficence and, therefore, s

4 that issue is not an issue to be gone into over and over again 5

in individual proceedings.

That's what we have been doing up 6

to now, and that's one of the challenges that took place in 7

these court actions.

8 We were saying that based on -- in effect, based 9

on the Com=ission's expression of confidence, you didn' t 10 have to litigate the waste cuestion in these individual 11 'croceedings.

The attack essentially was on the ability to 12 rely on the Commission's expression of confidence which took V

I3 place not in the rulemaking proceeding, but in the denial of the 14 NRDC petition.

That was a central issue in the court case.

15 COMMISSIONER GILINSKY:

But this Board would be 16 saying that we, the Board, do or do not have confidence, and 17 j we think that you should --

I8 MR. SHAPAR:

Certainly not.

I don't think that I

19 ', would be available under any option.

I think the Board merely l

20 ) ought to receive evidence fer you, unless you adopt one of the 21 lother options, certify the record to you with or without 22 lirecommenda tions, and you would make that decision.

This~is 23 ultima tely a Commission decision for sure.

24 COMMISSIONER GILINSKY:

So they are just collecting w-Aesasersi Reporters, Inc.

25 che evidence?

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MR. SEAPAR:

Yes, that's correct.

That is the

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2 option we recommended.

3 One of the other options you have is to do it yourself, not have a Board, and that was suggested by Bill 5

Dircks, and I'll get to that ir. a minute.

6 MR. BICKWIT:

Although it's within your option, 7

as I understand it, the Board would reach an initial 8

decision or recommend a decision.

9 MR. SEAPAR:

Within your options, yes.

Of course, 10 initial decision and recommended decision, of course, are 11 terms that are usually used, traditionally used with 12 adjudicatory matters.

E' 13 COMMISSIONER GILINSKY:

What I was trying to get 14 at is it seemed to me the question here is rather different 15 l than the one say in the S-3 hearing., where one is asking=--

16 1 l

CHAIRMAN HENDRIE:

7 curies for this and 12 curies 17 for that, and we decided those are the appropriate numbers i

18 '

on a generic basis.

This is not the same.

19 I was curious in precisely the same way as to what 20 t it is, but the real part of it really is that it would be a 21 i rule of the Commission that the ultimate waste disposal question

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would not need to be litigated in individual proceedings?

23 MR, SHAPAR:

That's correct.

That would be the 24 effect.

Weres Reporters, Inc.

25 CHAIRMAN HENDRIE:

The basis for that would be

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an expression of reasonable assurance?

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k-2 MR. SHAPAR:

And a detailed justification therefore.

3 I would also point out that S-3, of course, was a rule.

This one, I think, would and should be a rule, 5

and the Commission -- two other areas the Commission has not 6

delegated to anybody except on minor roles is rulemaking.

7 So this, for other reasons, would be a Commission decision.

8 Now the third option would be the hybrid, and the 9

bybril is the kind that was used in S-3, and in the access --

10 COMMISSIONER AHEARNE:

You mean announced to be il l l

used?

12 MR. SHAPAR:

Yes.

In other words, you would I3 announce it ahead of time as you do most proceedings, that if 14 certain selected issues were deemed -- the record wasn' t i

15 ll deemed good enough and you wanted to have adjudicatory 16 I j

treatment of those issues, then there would be opportunity

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therefor.

I 18 ;

j I indicated before that opportunity was 19 acccrded the S-3 and the access one, and was not deemed to be-

'l 20 necessary for use.

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The next option, of course, is the full 22 adjudicatory rulemaking procedure and the Commission has j

23'h used thct before, an example being, of course, the ECCS.

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25 ] suggested and it's included in the attachment to my paper.

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12 ar10 It's really a suboption because it deals with how the rule-1 making proceeding is going to be conducted.

2 Bill's suggestion is that instead of appointing 3

a board to receive the evidence and the material that the 4

Cor: mission itself hear the matter.

5 In connection with that, I thought it might be 6

useful if I went back and took a quick look at how much 7

time was used in the S-3 proceeding and the access proceeding.

8 CObSiISSIONER AHEARNE:

Are those relevant?

9 e7 10 11 12

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15 16 17 18 19 20 21 22 23 v

24 Aco-federaf Reporters, Inc.

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MR. SEAPAR: I think in the sense that it gives you 2

an idea of what Staff resources might be needed to accord with

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3 one of Bill's positions.

4 COMMISSIONER GILI:iSKY:

Except it is likely to 5

be a very different proceeding that is conducted by the 6

Commission.

7 MR. SEAPAR: If you do not consider it relevant, 8

there is no need for me to bring it up.

9 (Laughter.)

10 COMMISSIONER KENNIDY:

I would like to know how 11 much, how many.

12 COMMISSIONER GILINKSY:

I would like to know, too.

13 MR. SHAPAR:

I will refer to Commissioner Ahearne 14 on this.

15 (Laughter.)

16 CCMMISSICNER AHEARNE:

I was only asking whether 17!

it was relevant.

I 18 '

NOw I am certainly not about to require everything 19 that legal counsel says to be relevant.

20 l (Laughter.)

21 MR. SEAPAR:

I think it is relevant in a rather

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22 amorphous sense.

CHAIRh.'N HENDRIE:

You have hearings how many days 23 '

24 before the Board, I xm curious, in each case?

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25 MR.SEAPAR: All righ t.

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14 mm2 The actua' -- there were 74 days between the start 1

of the hearing and the end of the hearing on the S-3

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2 proceedings.

But, of those only 10 days were days of actual 3

hearings.

On the access proceeding, the time of actual --

the actual hearing days were three days.

6,!

l COMMISSIONER GILINSKY:

It seems to me there are --

CHAIRMAN HENDRIE: Spread over what period?

MR. SHAPAR: Between the 10th of July and the 12th of July.

(Laughter.)

g A singular fact, both of those proceedings lasted 15 months from notice of hearing and the Board decision or 13 v

Board recommendation.

COMMISSIONER GILINSKY: It seems to me there is another possibility also.

g gl One would be for the Cc==ission to conduct a portion 18 { or the hearing and decide which other parts ought to be dealt i

I with by a Board perhaps conducting adjudicatory proceedings, or g

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you could i=agine a reverse procedure where certain aspects 20 that would hav e been covered earlier could then be heard bv 21 i

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l the Commission.

22 MR.SHAPAR: Yes, sir.

Remember now, this is Rulemaking.

And Vermont 24 1

1. r.a.rw neconm. ine. l:Yankee stands for the proposition that all you need g

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15 mm3j as a minimum,.

generally speaking, is notice and comment.

You are perfectly free to devise any combination or 2

3 varia tion of procedures that you wish, and they all would be 4

legally unobjectionable provided that the record was adequate 5

to enable you to make a principal decision and to enable a 6

court to intelligently review the matter.

7 CHAIR &tN HENDRIE:

Do you have any idea what the 8 ii Staff resource was in those two hearings?

9 MR. SEAPAR:

I think Bill Dircks would be in a 10 lot better position to answer that than I.

11 MR. DIRCKS:

I don' t know about the access hearing, 12 ;

but the S-3 hearing -- I don't have the numbers here.

It is 13 the amount of - I think we have had about five people tied 74 up on that, manyears tied up on that during the course of the 15 l Past year, year and a half, doing work, revising work, doing 16 narrative statements. And it is a matter of spreading them --

17 l it is a =atter of picking them out of their ongoing jobs and 18 throwing them inro this thing.

19 l I mentioned staff resources in my paper. That is i

20 only one point that I wanted to make.

i i

21 !

I have not been around that long, but I have seen 22 a couple of these generic hearings go marching off into,the 23 swamp and you never really see anything ccme back out of them.

24 And I think that was my main concern.

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25 I think in this issue it is an issue that I don't I'

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16 mm4 even know whether you could come up with a definitive finding m

right now.

I think what we have said, what theIRG has said, 2

is that we have got enough confidence to start some site exploration work and site exploration work is going to go on for a couple of work, site demonstration, site feasibility studies.

And no matter what you do now, I don't know what you can come up with in the foreseeable time except to test the national programs, see where it is going and see where the major flaws are and see whether it is moving in the right 9

direction with the right amount of resources.

a type decision, dat m e of info mation shodd 11 come from sort of the recognized principles in the waste management area, and it should go directly tothe recognized judges in the Commission area rather than having it filtered through some Board that is never really ratisfied with any I

amount of information it gets.

16 Lots of times the Boards have difficulty meeting, 17 l l

they reschedule themselves, and these proceedings go on for 18 I i

I years.

g I would think in this case the Commission could basically almost test the water to see where the confidence 22 ll lies now and agree to come back to it in two years to see where the site exploration work is going.

It is going to be 23 l a phased type of thing.

What you should be doing is bring g

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17 15 1

satisfactorily across the board from government agencies and m

2 the states.

3 I don't know how much more technical work or depth 4

you should get into, than to see it on the broadest possible 5

basis.

6 COMMISSIONER AHEARNE:

I agree with your position, 7

Bill.

I think that we ought to do it for the reasons that 8

you and Vic have both pointed out.

But one thing pu : led me 9

about your paper in here, and that was there was an implication 10 that if the Commission did it, that the Staff resources, your 11 {

staff would have to be substantially less than any of the 12 other mechanisms.

13 MR. DIRCKS: You have co realize that piece of 14 paper was put together overnight in a reaction to Howard's 15 paper.

16 '

(Laughter.)

17 MR. SHAPAR:

It was a Cc= mission deadline, not 18,

Howard's.

1 19 MR.DIR CKS : We got it, and we wanted to get our 20 views in.

I 21 ~

COMMISSIONER KENNEDY:

In the interests of making 22 '

sure that the proceeding got going.

23 j CHAIPy_AN HENDRIE: But I think one of Bill's points, 24 as I read thapaper, is that if the Co= mission chooses to hear s-Ace-federed Recorters. Inc.

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this thing to help its judgment in the matter, it w.11 be F-LJJ

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18 mm6 listening to people mostly from outside the Staff.

1 COMMISSIONER AHEARNE: Certainly.

2 CHAIRMAN HENDRIE:

And I think Bill has been seeing 3

this as not the sort of proceeding where we are delicately a

balancing this calculation against that one, and so on, but rather as he says, seeing what the national program is, what i

various experts can summarize in their views, and then making a judgment call.

And I think his sense.is that is likely to be less 9

burdensome on his staff by way of prepara tion, than if they are a principal party before a Board in a more formal setup.

,3 I

COMMISSIONER AHEARNE:

It wasn't clear that even in 12 '

I a Board, the primary evidence wouldn't be fran those same outside 13 w

people.

,4 The only thing I wanted to understand, whether Bill's conclusion was, if the Commission heard it, that his staff would not need to be involved.

And I doubted that that.

17 l 1

was going to be the case.

18 MR. DIRCKS:

I would like, though, to have the 9

l Staff involved like any outside group.

I mean,.

_ two things 20 ;

that I think we could basically contribute is; one, and 21 explanation of the comments that we are coming up with on 22 the GEIS, and two, an explanation of the basis for the regulatory program that we are developing.

But many times I have seen -- and I am only looking 25 Ib" j

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19 cm7 1

at it through the " dark glassly" --

2 (Laughter.)

3

-- through the " glass darkly" is that the Board's never really s

get a feel, I think, for what the Commission wants.

4 5

COMMISSIONER AHEARNE: Bill, I do agree with that.

6 I was afraid what you were really underlying, saying, was if the Commission heard it, that NMSS who, after all, does 7 1 l

8 have a lot of people at this stage who know more about waste management and technology than anybody else,they are the 9'

10 ones who participated so heavily in the IRG, that nevertheless 11 if the Cnemission heard it, that somehow we would turn to l

12 :

somebody else, a consultant or maybe OPE to help us with all of I

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13 the material that we nevertheless would still be getting.

And 14 I doubted that was going to be the case.

15 I would expect at some stage we would ask NMSS for 16 l some help.

17 f MR. DIRCKS We would be around to help.

But I 18 think t e i=portant t-hing is, I think the Commission has a feel 19,

for what it wants, and if the Commission was asking the questions 20 directly, it wouldn' t be one of these things of passing them 21 l through the mali drop.

i 22 MR. SHAPAR:

I would like to make two points. on this 23 thing, though.

24 To the extent that this discussion has given anyone Aa e w es a mo,w n.r s :

25 the idea that maybe the Commission, if it decides to hear it I

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itself, can sit back and hear ultimate conclusions frcm somebody 2

and then say, we now have confidence or don't have confidence.

3

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This record has got to be a pretty good record.

4 COMMISSIONER AHEARNE: That's why I said NMSS is Sl going to be involved here, because we are going to have a lot 6'

of material coming in.

7 MR. SEAPAR:

I am staying out of that issue.

8 The other point I wanted to make is, whichever 9

way you decide to go, I think this discussion and prior experience 10 '

l in other rulemakings illustrate the wisdom of specifying what 11 the role of the Staff is..

12 l There has been all kinds of misunderstandings ah'out'

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u-33 '

that role from the Staff having the burden of proof to prove 14 something in a rulemaking proceeding, to being a party like any other party.

16 Now the role of the Scaff can be anything you want 17 !

the role of the Staff to be, from not being there, which is an 18 '

option, to taking on scme sort of cbligation to assure that the 19 '

record is the best it can be, or merely to present its cwn 20 views.

But whatever that role is from your perspective, ought 21 '

to be specified so that the Board understands it in the even

~

22 '

there is a Board,and the world understands it. And that, 23 unfortunately, has not been true in the past.

24 COMMISSIONER KENNEDY:

Have vou finished with sc..neerw n. core.<t irie.

25 your presentation?

u a

21 mm9 I

MR. SHAPAR: Yes, sir.

2 COMMISSIONER AHEARNE:

Bill, you people are 3

reviewing the GEIS draft?

~'

4 MR. DIRCKS:

Yes.

5 COMMISSIONER AHEARNE: But in your comments you also 0

pointed out that you took exception with one of thepoints in 7l Howard's paper, and you said thatthe GEIS review is of cecond l

8l priority to your staff.

o I wasn' t sure how to interpret that in the sense 10 of, did that mean that you weren't going to meet scme deadline i

11 i in getting it reviewed?

I2 '

MR. DIRCKS: In ranking them, w rnt we are doing out 13 there -- of course we put first priority ingetting out the Id standards criteria. We have approximately 3 to 4 people 15 assigned full time toworking on the comments on the draft GEIS.

16 There is another 15 or so throughout the rest of the agency i

I7 !

that is working on these com=ents, too.

I 18 Ine first draf ts are coming in wi thin the next 19 week or so.

I have a draft of the Staff commenrs on the GEIS.

i I

20 ;

COMMISSIONER AHEARNE: Co you still intend to meet 2l the August deadline?

22

~

MR. DIRCKS: We will have it by the end of August 23 with full comments on the GEIS.

Bur I keep pleading resources.

24

.c.J.ene seconm. inc. I It is this meeting of standards and criteria in order to give 25 I I

some guidance to DOE in their firct repository application which I

i n.'

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l w

22 mml0 is working on sort of a deadline now.

COMMISSIONER AHEARNE: So you still are going to --

I think you had agreed to Peter that you would meet some 3

deadline.

MR. DIRCKS: Yes, whatever deadlines, dates were 5

on that schedule.

COMMISSIONER AHEARNE: You are still on that schedule?

7 And.when you. talk about the concern about siphoning off large i

8; i

i amounts of resources on these other mechanisms, that was 9l really m re f a warning to us that you have these other fixed 10 jj l batch of people that are knowledgeable, and they are doing one tl gj thing now?

MR. DIRCKS: Overall.

s_

g COMMISSIONER KENNEDY:

If Howard is correct,which 9

assume that P.e is, with respect to the quality of the record 15 that is going to have to be developed, it seems to me there is g

i no question as to whether resources will be different, resource g

g ;

requirements will be different si= ply because the Commission 1

h hears

t. e matter.

19 Y u know, I am convinced that the resource require-20 ments will be the same.

21 i

MR. SHAPAR:

Of course that does depend to a large 23.

xt nt on the role we define for the Staff, which is an open decision at this moment.

24 Ac F.oerw n.co,tm, inc.

COMMISSIONER AHEARNE:

Could I ask you a question 3

I' ~i hjb

23 mall j

about your paper?

2 MR. SHAPAR: Certainly.

3 COMMISSIONER AHEARNE: Two questions.

First, you appear to make the point that if we go 4

to the rulemaking and do not wait enti7. the GEIS, that that 5 j l

6j would satisfy the pending Presidential request.

7 MR. SHAPAR: I think so.

COMMISSIONER AHEARNE:

Putting aside the question of g

whether we should be concerned about the pending Presidential 9

10 request, which is a separate issue, I thought the Presidential 11 request, at least the paper that Bill sent us, was to comment 12 upon the GEIS, the final GEIS.

13 MR. SHAPAR:

Two things in the draft report.

Number one, whether DOE findings, based on its 14 i

15 GEIS are appropriate, and, number two, whether or not the 16 Commission currently has reasonable confidence that radioactive i

17!

wastes provided by nuclear power reactors can and will, in i

la ;

due course, be disposed of safely.

i 19 COMMISSIONER AHEARNE: Right.

And my only point was that I thought the wording, 20 if there should be some weight given to meeting thzt pending 21 22 :

request, if it comes, would be with reference to the. final l

23 GEIS.

And so that it wculd not meet the condition if we were

~~

25 to go ahead without it.

Acs-facerad Rooorters. Inc.

25 MR. SHAPAR:

I guess ordinarily one ccmments on the

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24 mm12 1

draf ts, and I guess I had assumed the comments would be on 2

the draft.

s 3

MR. DIRCKS :

I think the request will be en the

\\_

4 final.

5 CHAIRMAN HENDRIE: It seems to me that even if we had conducted a proceeding of some kind, and completed it, we 6j l

7 get the final GEIS and the request, or have had the request, I would regard it as an obligation b read the final GEIS and 8;

3 9

look again and answer the question.

10 COMMISSIONER AHEARNE:

My only point was --

11 CHAIRMAN HENDRIE: On the other hand, it is also 12 possible the way these things go, that one might be still in 13 mid-proceeding.

14 MR. DIRCKS: And more effectively, it would be more 15 effective to base your review on the review of the fiucl 16 GEIS, because that plus the IRG report represents the Caximcm -

i i

17 !

effort that has been expended in this area.

i You would have all the comments that wculd come in on 18 19 the GEIS, and you would also see how COE has responded to those 20,

comm ents.

I 21 !

MR. SHAPAR:

Looking at it another way, I guess you i

i 22 '

could say anybody -- I don't think anybody would urge that you 23 not look at the GEIS as part of the 11emaking.

~

24 !

The question is whether or not you wait until eu.s.o.re a nenm. inc. !

I that comes out to get started.

,o 25 uJ m

25

=m13 1

COMMISSIONER AHEARNE:

I was really asking a much 2

smaller question, and that was really the consistency with 3

meeting the Presidential request.

-m 4

The second issun was, r think the first question I 5

asked when you started:

Is it your judgment that we could 6

fulfill the responsibility of responding to the Court were 7

we to address solely the question whether offsite storage 8l would be available?

I 9

MR. SHAPAR:

All right, Steve may have -- Eilperin 10 4 may have his own views'on that, and I will give you mine.

I 11 don't think we are far apart.

12 I think the holding of the Court, in my opinion, 13 clearly is the narrow issue as to whether or not offsite 14 storage will bc available by the year 2007 or 2009.

Howeveri 15 l I have to add, even though that is the holding, there is z

16 language in the decision that i=pliedly says if this gets -Back 17 ;

to us and you are stopped there, you may be in trouble.

18 And I just can ' t discount that.

~

19 New you can line up ten lawyers on that one and 20 '

ask them hcw much weight they give to that caveat, and you 21 are liable to get ten different answers.

22 It disturbs me scmewhat that my direct answe'r to 23 your question is, the holding of the Court is only the narrow

~

24 one that I have mentioned.

ac.-F.eere a.conm. inc.

25 New I have got eight reasons why you ought to go

26 mm14 1

further.

2 COMMISSIONER AHEARNE:

I wasn't inclined to say 3.

that we shouldn't.

I was again just trying to be sure --

-~

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4 MR. SEAPAR: Steve, do you want to add to that?

5 MR. EILPERIN:

I would go further.

l 6!

You know, if all you decide is you can move it frca 7;

Vermont Yankee someplace else on a temporary basis, the next 1

i 8

question is, okay, you have to decide why that other place is 9

an okay place, and why that is not going to turn into a 10 permanent disposal facility, or if it is going to turn into a i

l 11 f permanent diaposal facility, why is it an okay permanent 12) disposal facility.

t 13 COMMISSIONER ABEARNE: But I think you are asking Id there the broader responsibility we have.

15 And what I was really asking is, did the decision 16 j of the Ccurt, which seemed to be a much more narrow one,.really 17 1 require that broader question.

l i

18 i I think, personally, we have to address the broader 19 question. But I mn still trying to understand what is required 20 by the Court.

21 MR. EILPERIN :

I think in a sense it is a hypothetical i

22 '

question.

I think if the Commission didn't go a step further i

23' there would be a petition in the next day asking it to do so, 24 l and it would be confronted with that.

3 Ace-federW Reoorters, Inc. l 25 COMMISSIONER AHEARNE: Yes, but the Court itself, Dw

~

l

27 mm15 the Court decision itself does or does not require us to

^

address --

2 MR. EILPERIN:

I agree with Howard that it can be 3

(

written narrowly. But as I pointed out in my memorandum, there 4

is also language in the Court decision which has important end T8 points in it.

7 8

9 10 11 12 L

13 14 15 16 17 '

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COMMISSIONER AHEARNE:

Howard, is there a type of 2

proceeding in where there is a notice, comments, then cross-3 comments?

s 4

MR. SHAPAR:

No reason why you couldn't do that.

5 You could do it.

It probably has been done, I'm not aware 6

of any, but it is legally permissible.

7 COMMISSIOMER AHEARNE:

And then after that, if 8

necessary you would then hold a hearing or - that is an 9

oral presentation question?

10 MR. SHAPAR:

I have one cavea't to that.

11 Whatever the rules of game are, my recommendation 12' would be that you declare them ahead of time so that when 13 people are getting ready to present their evidence, they know u

14 how much they have got to present at each stage.

And this 15 has not always happened.

16 The rules sometimes get changed in a rulemaking 17 !

proceeding, and everybody feels that they really didn't have 18 a fair crack at it because had they known they were going to I

19 get a second bite at the apple, they would have handled their 20 l presentation differently.

I 21 1 I repeat, my only caveat would be, whatever you i

I 22 decide on, if you are going to provide these other opportunities l

23,

you say 2.t clearly at the beginning.

24 COMMISSIONER BRADFORD:

Howard, are you assuming Am s.o.rw neno,tm. Inc. '

25 a proceeding in which all parties are equal, in effect?

That c :.

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29 RMG 2 1

if anyone chooses to participate, he has sort of the same e

2 right to present evidence and present comment, what have you, 3

as DOE or the Staff?

4 MR. SHAPAR:

Yes.

You know, it is typical, there 5

aren't any parties as such in a rulemaking proceeding.

6 COMMISSIONER AHEARNE:

I can correct part of your 7

answer.

It is inconsistent with what you said earlier.

8 I don't think he is automatically assuming that the 9

Staff is a party, because that was one of the issues you left 10,

open to us to make clear.

I 11 MR. SHAPAF..

I said the role of the Staff, but there 12 !

really aren't any parties as such to rulemaking, unless you 13 want to make it a formal rulemaking.

People show up and they 14 give evidence, and the Board asks or the Ccmmission asks them 15 questions.

16 '

COMMISSIONER KENNEDY:

I think Peter had a different 17; question, though, didn't you?

l 18 !

COMMISSIONER BRADFORD:

Well, I t.tm folicwing a 19 different thought anyway.

20 I guess DOE had scme hundreds of cormentators in the 21,

course of the IRG.

1 I

22 l COMMISSIONER AHEARNE:

I think it was 3000. ~

23 COMMISSIONER BRADFORD:

Well, first of all, Bill, 24 l how do you see the Con =tission handling a proceeding with 3000 --

Ac ame n.oomn, inc.

25 MR. SHAPAR:

Consolidate.

Make people consolidate.

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30 RMG 3 1

There are other devices like that you can use.

2 COMMISSIONER KENNEDY:

My impression is that without 3

NMSS resources.-

4 (Laughter.)

5 MR. DIRCKS:

But with the Commissioners sitting 6

there paying attention, I think.

i I

7' (Laughter.)

8 COMMISSIOliER KENNEDY:

That would be remarkable.

9 MR. SHAPAR: Thatwould be illegal, Bill.

10 MR. DIRCKS:

I don't know how it is handled legally, 11 !

but I would imagine whether the Commission has a feeling of 12 confidence in a national program, I just would wonder why k-13 you would want to have, say, the local professor of zoology 3 14 from --

15 COMMISSIONER BRADFORD:

Well, that was what I was 1.6 trying to get a feel for.

i l

17 l MR. SHAPAR:

To relieve you of the burden of having l

to sit to listen to evidence.

18 '

19 COMMISSIONE-BRADFORD:

Well, if we are in fact to l

20 preside over the proceeding, I don't see any way to do it if-21 there are -- well, 3000 obviously is completely unmanageable, 22 but even 100 parties who wanted to participate in that with 23 any degree of length of thoroughness.

24 So I think, we in all probability are talking about Acs-Federed Repo,ters, Inc.l a proceeding, certainly that is run by the Commission, and which 25

-}

200

31 RMG 4 I

has to be in a couple of steps, one of which people present 2

their views, or their views will be read.

3 But as far as any proceeding, any further proceeding in which the Commissioners ask questions of particular parties, 4

5 I should think we would want to choose fairly narrowly just 6

who it was we wanted to question.

We would want some capable representation from those 7

8 who felt that the Commission ought not to have confidence.

We would want representation from those who felt the Commission 9

10 ought to have confidence.

But there is no way in the world that we could have 11

~.

12 100 parties.

Of course, Howard said they don' t have to be s_

13 parties - 100 participants.

14 MR. DIRCKS:

And I think if the Commission heard the hearing itself, you would get people at the top ccming in.

15 16 You would get John Deutch, who I am sure as the head of the IRG 17 reporting on the IRG, and presenting the report.

I 18 -

I don't know.

Howard maintains you would cet the l

{

19 same sort of representation before a hearing board.

Bur I l

l 20 would just --

i 21 COMMISSIONER GILINSKY:

I would be surprised.

i i

I 22 l MR. SEAPAR:

I would get a letter from the Ccamission 23 asking John Deutch to appear before the Cor: mission.

I think 24 it would produce him.

w.e.rw meoonm, inc.

25 COMMISSIONER AHEARNE:

I agree with Howard.

I think

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32 RMG 5 1

you would get equivalent representation.

2 On the other hand, I'think this is an issue that 3

is going to be really resclved, even with a limpy record, it

(

4 is going to end up being a very judgmental conclusion.

I 5

think it is going to be the Commission that has to reach the 1

6!

judgment.

I 7'

COMMISSIONER GILINSKY:

There is, of course, the a

question of the demeanor of the witness.

9 MR. SHAPAR:

I am not really in a rulemaking 10 procedure, 11 (Laughter.)

12 '

COMMISSIONER AHEARNE:

We have to end up making the 13 decision, so I think we ought to end up hearing it.

s_

14 COMMISSIONER BRADFORD:

Or at least hearing the:

15 i sort of crucial part of it.

i l

16 l CO!O!ISSIONER AHEARNE:

That's right.

As opposed to -

l 17' having someone else doing that for us.

l 18 !

MR. SHAPAR:

I would make one caveat on that, thoughf 19 and I am' thinking of having a board to hear all the evidence.

20 And then you say, "But I want to hear from X, Y, i

21 i and Z, and only them."

i 22 I think that that invites -

23 COMMISSIONER AEEARNE:

I was more, I think responding 24 to what I thought Peter was suggesting.

A written first stage, Ace-7.o.cw Recomes inc. -

25 and then a second, and selected focus.

j n't a

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33 RMG 6 I

COMMISSIONER KENNEDY:

That' s, I think, what Howard 2

is addressing.

3 MR. EILPERIN:

I would point out that in the GESMO m

4 hearing procedures, the Commission specified quite clearly that 5

the hearing board may request or order any full participants 6

who have substantially the same interest and proceed to raise 7,

substantially the same questione to consolidate the request 8

for discovery, presentation of evidence, suggestions.of 9

questions to the hearing board, including statements of 10 participants and questions on cross-examinations on particular 11 issues.

12 So that it is certainly within the Commission's t

13 power to either request people to produce themselves or to 14 order them to consolidate their positions and make them much 15 l more manageable.

l 16 !

MR. SHAPAR:

It is not only feasible, but frequently 17 used in big, rulemaking procedures.

It is a common device of 18 consolidation to force participants to get together.

19 COMMISSIONER KE2RIEDY:

But that is a slightly i

20 different proposition than the one I understood Comissioner i

21 Bradford to be making.

22 COMMISSIONER BRADFORD:

It is aimed at the same i

23 l end.

2#

COMMISSIONER KENNEDY:

I am not sure it is the same Ace-Federst Reco,ters, Inc.

25 I

thing.

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34 RMG 7 1

My understanding of your view was, and correct me please if I am wrong, but my understanding was that you had in 2

3 mind having gone through written submissions, we would conclude 4

that certain of these parties we would like to address 5

certain of these participants more fully.

6 Those and only those would be invited to submit I

7 oral testimony.

Now, that's what I thought you were suggesting I

3 as a means of sort of controlling the matter.

9 COMMISSIONER BRADFORD:

My fundamental suggestion 10 was that we have some need to get control of the matter.

I had suggested, my thought was the one way to do it would be 11 12 '

to have a first stage and a second stage.

13 Other possibilities would be.to give notice of a 14 I proceeding, get in response to that notice a list of potential 15 participants, and a statement of what their interest would 16 be.

And then do some consolidating at that point in time.

i 17 CHAIR.uAN HENDRII:

Could you take written comments l

18 from anybcdy who wanted to send them in, and then shake them 19 down on the basis of the arguments they were making in those 20 comments, and say we would be willing and would like to hear i

21 from semebody representing this point of view?

22 Or this point of view -- these 114 fol'< -- is that 23 practical?

~

24 MR. 31CICfIT:

That is practical.

Aa-Federed Reco,ters, Inc.

25 CCM21!ISIOMER 3RADFORD:

In fact, it is far more O

i

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35 RMG 8 1

than trying to hear from all 114 of them in 5 minutes.

2 CHAIRMAN HENDRIE:

And it may be more practical 3

than trying to set them up and consolidate them on the basis s

4 of just an initial listing of --

5 COMMISSIONER BRADFORD:

One paragraph statements?

6 CHAIRMAN EENDRIE:

Yes.

7 MR. BICKPTIT:

The hearing is discretionary.

The 8

comment period is not.

So you have the authority to. do that.

9 COMMISSIONER KENNEDY:

We do back to the point that 10 you madeiin this regard.

Could you restate it now?

11 MR. SHAPAR:

I was just addressing the point, I in the framework of which I understood -- it may be 12

guess, u

13 incorrect - was having the hearing board listen to all the 14 participants.

15 l As to whether or not the Commission can say, "I would i

16 like to hear personally from.X, Y, and Z to the exclusion of 17 all others."

la I think the optics of that and the fairness would 19 militate against it.

But I think there are ways of conserving i

i the Ccmmission's time, either by narrowing the issues in which 20 21 you want to hear people speak, or by forcing consolidation 22 so that you can really reduce the number of arguments that 23 l are brought forward before you.

24 COMMISSIONER GILINSKY:

Why can't you make that Ace-Faserad Reporters, Inc.

25 l kind of decision?

After all, you read the written submissions l

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3 m

e 36 PPG 9 1

and decide on that basis, or for other reasons, that these seem 2

to be the persons who have the most to offer in the way of n

3 helping us decide the question.

\\

4 MR. SHAPAR:

I think probably you legally could, 5

and I guess I refer to my last set of remarks to optics, and to 6

what some people might construe to be fairness.

'l 7

MR. BICKNIT:

Imuld agree.

8 COMMISSIONER AHEARNE:

You would agree with what?

9 MR. BICKWIT:

Zhat you can, and that the limiting 10 factor is only appearance.

11 MR. SHAPAR:

But I wouldn't discount it in this I

12 particular proceeding.

13 COMMISSIONER KENNEDY:

Because it goes to the 14 question of fairness.

end 49 15 MR. SHAPAR:

And the importance of the issue.

16 17 i

la '

19 i 20 ;

21 22 23 24 a v.e - w m.oort m,inc.

25 c

2,..

373 10.1" 37 gsh I

COMMISSIONER AHEARNE: I guess I would still comedown 2

on the side of not-hearing board on the notice and comment 3

cycle, and then additional ccmments.

And then a sele ction,from

[

4 that leaving open the possibility of selection of people 5

for us to hear directly.

6 COMMISSIONER BRADFORD: I think I would also leave until 7

that next stage some procedural decisions on just how that 8

second stage is to operate because there is a range of 9

questions.

10 COMMISSIONER AHEARNE: Yes.

11 MR. SHAPAR: Wouldn't you want to announce at the 12 beginning what all the opportunities were for participation 13 down the 1.ine?

See, otherwise, people who want to participate 14 may decide, well, if I get a further crack at it, I will put 15 on my testimony in a certain way. If I think I only have one 16 o pport unity, they'll handle it in a diff erent manner.

17 COMMISSIONER SRACFORD: It certainly is nece ssary 18 to announce the second stage and conceivably, to announce as 19 much about it as possible.

20 I just don't know and wouldn't expect to knew un til 21 I've had a chance to think about tne comments.

What, for 22 example, I would want to do aoout discovery, whether I would 23 think it appropriate to fund any party's presentation of 24 their views.

25 COMMISSIONER AHEARNE: I would really like to Repe c~

q

~

~

~. >

38 373*.'10.2-gsh I

that people would try to give us good comments as they could.

2 I'm a little disturbed by the idea that they might try to 3

forego the first stage in the hopes of coming into the second

^

4 stage.

5 MR. SHAPAR: It's been known to happen.

6 CO WISSIONER AHEARNE: On the issue of discovery -

7 CHAIRMAN HENDRIE I think it would be useful to try 8

to thrash..obviously not this af ternoon, but in the coming 9

weeks, to try to thrash out as much of this sort of thing as 10 we possibly could to see where each of our initial views and J1 thrusts lay and argue back and forth and see what develops.

12 As a consensus, I think, I have a strong inclination 13 that Howard's plea to the maximum extent possible -- a f ull I4 array of the procedure be laid out at the beginning.

15 I have just got a sense that that's a very desirable s_

16 thing to do.

17 Now I guess whether we can do it in toto, I don't 18 know because I think you are right.

I certainly can see it.

19 In one sense you are right.

That is, if they knew right now 20 whether the comments were going to be, you know, like the 21 volume of.diis recm or were going to be this much, wny, that 22 makes a.very suostantial difference in tne second thing.

23 But I think I can see where the mean of the 24 distribution probably tends to lie.

And it does s eem to me 25 that there's likely to be an awful lot of comment.

I ' m,, s o rry I

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39 373.10.3 gsh i

I inte rrupted you.

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2 CO MMISSIONER AHEARNE 8 do, no.

I thought you were 3

going to try to reach a decision today.

4 CHAIRMAN HENDRIE: Oh, no.

5 COMMISSIONER AHEARNE:.ine.

6 (Laughter.)

7 CONNISSIONER AHEARNE: Then there are a few other 8

questions I can ask of a few of the lawyers particularly.

9 CHAIRMAN HENDRIE: Ask your questions.

10 The thing I think we should try to work toward today

.11 is to evolve the next step in the development of options, 12 recommended courses -- you know, here we are dealing with the 13 question, should we have a proceeding?

We haven't talked 14 about that much.

I don't think there's much doubt that we're 15 going to have to have a proceeding.

16 If we don't, why, the circuit w.ill ass ist us.

17 So we're going to have a proceeding.

We got 18 clarified at least for Vic and me. Howc D:gets to be a 19 rule-making on this reasonable assurance judgment thing.

20 We are talking about options.

de seem to ce now 21 focusing attention on the commission trying to be the -- what 22 do you call it --- the first primary board, the hearing beard?

23 CO MMISSIONER AHEARNE Or the proceeding board.

24 CHAIRMAN HENDREI As the case may be.

Okay, that is, 25 I think we're making useful progress at the discussion and I'd ci J

40 373.'10.4' gsh I

like us to conclude this discussion at some point being able 2

to say to assemble ~ the staff and com.nissioners s 3

Here's how we get the next step down the road 4

toward the decision and see, hopefully, a fairly detailed 5

way out on where we're going and how to get there.

6 But please go ahead with your questions.

~

7 COMMISSIONER AHEARNE: As I said, my conclusion is, 8

where at least I'm coming out is that we ought to be that 9

proceeding board and we ought to have a series of notices 10 and comments leaving open the ability to narrow it down to

.11 hear peole.ourselves af ter that.

12 I don't have much more in the way of detail to put 13 on it.

My only one remaining question was on this Lssue of discov ry, this is more of a technical question.

If you were 14 e

k-15 to say yes, we will have discovery -- do we have any authority 16 to have that extend to outside the NRC7 17 MR. SHAPAR: Yes.

But let me point out discovery in 18 most rule-makings is handled pre tty easily.

Number one, the 19 staff disgorges all its documents.

That's number one.

20 COMMISSIONER AHEARNE That's NRC.

21 MR. SHAPAR* And of course the Freedom of Information 22 Act recourse is available, not only against us, but against 23 other government agencies.

24 CO.W4ISSIONER AHEARNE : Sure.

B ut that's ave ilable 25 ih dependent of any decision we make.

What I was asking is

41 373.10.5 gsh I

there any decision we make which has a f unction of enabling info mation to be obtained --

2 r

3 CHAIRMAN HENDRIE: Sure, you can open private parties 4

to discovery.

5 MR. EILPERIN: Section 161(c) of the Atomic Energy Act 6

will allow you to subpoena information and get that 7

from people who are not participants in the particular 8

proceeding.

9 MR. SHAPAR : As a matter of fact, the Commission faced 10 this one time a long time ago -- they never had to use it JI in connection with Tarapur, and it was in connection with 12 making a finding of practical value and they needed information 13 f rom a manuf acturer who was not a licens ee but merely a 14 vendor.

15 Same question:

Could they subpoena the information?

16 The legal conclusion at that time was yes.

17 COMMISSIONER KENNEDY: Could any other party or any 18 other participant do so?

19 MR. SHAPAR: They could ask us.

They would come to 20 us and ask us to issue a sucpoena to get inf ormation for them.

21 That would be the mechanism.

22 COMMISSIci4ER KENNEDY: A numoer of minor matters 23 would come before the commission then to be resolved.

24 MR. SHAPAR: If you went that route.

The question is 25 where is the bulk of the Information new?

I gue ss it's with

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42 373.10.6 gsn i

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2 CHAIRMAN HENDRIE: I would think so.

3 COMMISSIONER AHE ARNE: That could be f ascinating.

4 CO MMISSIONER KENNEDY: Could I ask the staff to 5

assist me in _ thinking the proolem through?

And I understand 6

the merits of the proposition as you have put them forward, 7

81.11.

8 What I don't yet understand are the implications in 9

terms of resources.

And I haven't heard anything this 10 af ternoon that has helped me very much in understanding that.

.11 So I wish the staff would, as early as convenient, look hard 12 of. this question of resources.

And in doing so, Howard, I 13 would like you to make an estimate on wnatever basis you can 14 of what you guass -- I use the word " guess" advisedly -- to s~

15 be the time that will be required in terms of review and 16 the time that will be required in terms of actual hearing on 17 the part of whatever board it is -- tha t i s be it a

.a specially appointed board or the coomission to reach the 19 decision.

20 MR. SHAPAR: You realize we don't know the numoer of 21 partic ipants ?

22 CokMISSIONER KEbNEDY: I understand that.

But you 23 know that there are a number of things which can at least draw 24 a range.

And within that, then, making the best -- and that 25 was the reason that I used the word "gue ss."

~

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373'.10.7 43 gsh 1

I understand that tnere obviously are going to be 2

large error bands, but not as large as there are today.

3 MR. BICKWIT: Are you including within your request 4

the pre-hearing activity of the heering board ruling on 5

procedural motions ?

6 C0K4ISSIONER KENNEDY: Certainly, all of which will 7

have to be done by whatever board that is.

8 COMMISSIONER AHEARNE: Steve, could I ask you one 9

other question?

I'm really fascinated by that.

You mear.,

10 for example, the National Academy of Sciences could be JI subpoenaed to give us all the information or give someone, a 12 party, all the information that you have in your files 13 relating to the waste management study that you did for the 14 NRC or the Atomic Industrial Forum could be subpoenaed to

\\-

15 give us all the. information you have relating to proolems 16 associated with disposal of nuclear waste?

Or NRDC could oe 17 subpoenaed to give us all the inf ormation you have in any

!8 of your documents?

19 MR. EILPERIN: Let me read you 161(c). I mean people 20 con refuse the commission subpoena, and then the comT.ission 21 has to enforce it in court.

Then there could oe questions 22 of reasonableness and things like that.

23 Sut the commission actually is a rather powerful 24 body.

25 (Laughter.)

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44 873.'80.8' gsh MR. BICKdIT: It's frightening.

2 CHAIRMAN HENDRIE: How little you know us.

3 (Laughter.)

4 MR. EILPERIN: Let me read it to yo u.

5 Congress intended the commission to be rather 6

powerful.

161(c) says in performance of the functions, the 7

commission is authorized to make such studies and 8

investigations, obtain such information, hold such meetings 9

or hearings as the commission may deem necessary or proper 10 to assist it in exercising any authority listed in this act J1 or in the administration or enforcement of the act, or in any 12 regulations or orders issued thereunder.

13 To such purposes, the comm f 3s ion is authorized to 14 administer oaths and admonitions, pr by subpoena, require

(_

15 any person to appear and testify to appear and produce 16 documents at any designated place.

17 Mitaesses subpoenaed under this section snall be 18 paid the same f ees in mileage as you pay vitaesses in the 19 district courts of the United States.

20 CHAIRMAN HENDRIE: You cannot only make them produce 21 its they have to bring it here.

How about that?

22 MR. SHAPAR2 I think that's correct, but I think 23 there may be a caveat or a special rule with respect to your 24 ability to subpoena another government age ncy.

25 COWAISSIONER AHEARNE: I was thinking more of -

(Inaudible. )

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45 373.10.9 gsh I

CHAIRMAN HENDRIE: Government agenc ies would be

~

2 FOIA.

They do us on occasion, I notice.

3 MR. EILPERIN: I'm not at all sure that I would

/

4 agree with Howard's caveat.-

5 COMMISSIONER KENNEDY: That would be something I 6

assume for the staff's further consideration.

7 MR. SHAPAR: No memorandum will be exchanged.

8 CO MMISSIONER KENNEDY: At least you will be able to 9

arrive at a conclusion which you will share.

10 MR. EILPERIN: Usually there's a comity between J1 sister agencies and cooperation, so one does not have to 12 resort to dragging somebody struggling.

13 MR. BICKWIT: We did research on one occasion whether 14 the commission would have authority to subpoena from the 15 President's commission on TMI, and concluded, while we were 16 not about to advocate that, that yes, in fact --

17 CO MMISSIONER AHEARNE: I was really interested more 18 in one of these private organizations.

19 MR. SHAPAR: I think it's clearly under our 20 autnority.

21 CO MMISSIONER AHEARNE : Let me point out it is one on 22 behalf of the other. I will ask merely as an intermediary.

23 MR. SHAPAR : Sut it's to enaole us to conduct an 24 authorized activity.

25 COMMISSIONER KENNEDY: Yes.

/

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373.*10.10 46 gsh I

CHAIRMAN HENDRIE: Now let me ask some more questions 2

about staffing and resource, this on the basis that the 3

commission might want to hear this matter itself.

~

4 When there is in a rule-making, typically there is 5

a board that works on it -- I guess not full time, but puts 6

.in a fair amount of time.

7 In the proceeding, typically, I think, the staff 8

has in mind, or we have told the staff to have in mind some 9

sort of rulei that is, they are heading some place.

10 The staff bears a central role in the proceeding in J1 the sense that they gather together materials, make analyses, 12 firm up their presentations and testimony when other parties 13 throw in dif fering views.

Why, they will generally oe staff 14 analyses of those, saying we don't agree for the following 15 reasons, or we do agree for the following reasons.

16 As the proceeding grinds to a close, there will be 17 a weighty staff report that says, we belle ve that the hearing 13 record supports the following rule, and quotes the rule. Here 19 is why.

And, you know, it's a major piece of analysis and 20 synthesis pulling it toge the r.

21 Here we have -- the rule is a fairly simply stated 22 proposition.

But their arrival thereat may be very time 23 consuming and complex.

24 Is staff going to play the same sort of role? Howard 25 says that we can ask you to do whatever we like.

But if the

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47 373 10.11 gsh I

staff doesn't, wno does?

2 That is, it seems to me that there needs to be 3

at least one party in the proceeding that is trying to gather everything together in a coherent f ash io n.

4 5

I'm not sure th-- you get out much eas ier.han the 6

other options.

7 MR. SHAPAR: We ll, you know, it really de pends on the 8

procedure that you pick.

It's very sensitive to the procedure.

9 For example, if you use a hearing board, you can ask -- you 10 can really rely on the hearing board to go out and gather J1

. inf o rma tio n.

If the participants are provid.ing enough 12 information, they can make that known.

13 You can ask a hearing board to certify the record 14 without recommendation, which you have done in other 15 rulemakings.

16 CO MMISSIONER GILINSKY: Then you have to bet dd 17 somebody to read the record-18 MR. SHAPA't Well, the commission has its own staff, R

19 I should point out.

20 (Laughter.)

21 22 23 24 25

CR 5873 til MIMI/pv, 48 1

MR. SHAPAR:

And other Commissioners in' rulemaking 2

have used that immediate staff for this kind of effort.

3 COMMISSIONER KENNEDY:

They-also read some of the 4

record, or most of it if not all of it.

5 COMMISSIONER GILINSKY:

Well, I would be surprised 6, if Commissioners read some of the records in some of the larger 7

proceedings.

8 CHAIRMAN HENDRIE:

I would find it impossible.

9 COMMISSIONER GILINSKY:

It seems to me the question.

10, here is not one that turns on a mass of detail, you know, in the II way of deciding on a facility design does.

Every detail of i design has got to be understood if you're to allow operation of 12 !

13 a facility.

14 CHAIRMAN HENDRIE:

I think that's right, but I think 15 we would be confronted with massive detail, no matter how you 16 thrash it out.

I 17 MR. SHAPAR:

Remember when you denied the PRDC 18 !

petition.

You did point to the literature in the field that 19 was summarized.

I mean, your decision on whether or not you've got confidence is going to have to based on the best technical 20 i

21 data and opinion available.

It just can't be a gut reaction.

l 22 i COMMISSIONER AHEARNE:

But, as Bill points out, much l

I of that ha.c already been reviewed.

23 24 MR. SHAPAR:

What part would you give weight to?

Ace-Federal Reporters, Inc. ;

25 ! They're liable to have a conflict in expert opinion.

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pv2 49 I

COMMISSIOENR KENNEDY:

There is.

2 MR. SHAPAR:

Aren't you going to have to articulate 3

why you rely on some opinion but not on others?

4 MR. DIRCKS:

How deep do you go into it?

D o you go 5

into the migration rates of nuclides in various media, and then 6

do you force calculations to be made?

7 MR. SHAPAR:

How long do a man's pants have to be 8

to reach the ground, Bill?

9l MR. DIRCKS:

That's for. people in your profession 10 to argue about.

II (Laughter.)

12 MR. SHAPAR; Prcsident Lincoln asked that question.

~

I3 MR. DIRCKS:

Did he get an answer?

Id COMMISSICNER AHEARNE:

He was in your profession.

15 MR. DIRCKS:

It seems to me, in order to reach a 16 general statement of confidence, do'you have to investigate in 17 depth all the various underlying technical documentation sup-i l

18 porting the geologic media of salt or granitt or something else, i

19 or can you basically take a judgment on where that prcgram is 20 going and whether the rescurces are there?

21 I just don't think you are going to get very much 22 more of a level of confidence than the IRG has come up with, i

1 23 !

and you've got to investigate where they went with that thing 24 and why there was dispute concerning that.

sc.4 e r. r,on m inc.

25 MR. SHAPAR:

When you go out and you ask for comments

.)?

pv3 50 1

in the rulemaking, you're going to get everything, I suppose.

2 Then what are you going to do?

You're going to have to decide 3

how much is important and how much isn't.

COMMISSIONER KENNEDY:

I guess my answer would have 4

5 to be that whatever other purpose may be served by this pro-6 ceeding, its genesis is a court requirement which must be met.

7 And thus, we are answering the questions raised by those who 8i ask such questions as how long do the pants have to be.

And if 9

it isn' t going to answer those questions, then it's not going 10 to be a useful proceeding.

It is only going to be leading to 11 more proceedings and more court hearings.

12 The purpose of the exercise should be to put that to 13 rest, not crea te more.

14 CHAIRMAN EENDRIE:

Watch out.

We are not in a posi 15 tion, and I don't think in the. ext year and scme months before 16 this bcdy, to extablish surety in questions which others have i

17 l been laboring over as recently as a month or two ago and have I

18 had to say we think there is a reasonable basis to go ahead, 19 we have confidence that options will open up as we develop this 20 liline or that line; we are not able to say precisely new that l

l 21 I this is the right path and the risks are thus and so in quanti-22 tative detail.

23 I think, indeed, the judgment and confidence, if we 24 are to make it, in part, does have to rest on assessments of the c=4.=w Reoorten iric.

25 national program and where it seems to be going and the uu m

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reasonableness of it, as well as whatever we can form in the 2

way of, I guess, more basic judgments about feasibility and 3

probable infeasibility in the natural scope.

4 When we get all through, though, why, I don't think 5

we will have been able to prove that waste disposal is per-6 fectly safe,'or any particular level of safe.

I don't think 7

we will have been able to prove much of anything.

8 COMMISSIONER KENNEDY:

We're going to have to use 9

the word " proof."

We're going to have to have a level which 10 fully substantiates whatever judgment we make in this regard.

That's my only point.

It cannot be simply a sort of broad-11 1

I 12 '

brush, let's invite _a few senior officials in and let them give 13 us a 3 0-minute presentation and we thank them, have a few ques-14 tions, send then on their way, and then ask some who take dif-15 ferences with those views, let them express those, then we sit 16 down and we make a judgment.

That won't wash.

l 17 MR. DIRCKS :

That's true it won't wash.

But I think 18 it is, again, the general conclusion you have to ecme up with, 19 and not a specific technical conclusion.

20 CHAIRMAN HENDRIE:

It seems to me the court hasn't 21,

asked for a very searching and detailed finding by the Can-22 mission.

It just says:

Look, Commission, you have reasonable --

23 MR. EILPERIN:

If I could give a little context.

I 24 think, essentially, the way the case was presented to the court w.o neoorrori,inc.

25 is that in the past the Commission has expressed its confidence a,

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pv5 52 1

that waste would be disposed of safely, that there was a major 2

study -- the IRG report -- which laid out certain uncertainties.

3 And esssentially, what the court is asking is for the Commission 4

to look at that new information that has come to pass, to take a S

lcok at the IRG study and the supporting information, and express 6'

its current views based on that most recent information about 7

what level of confidence the Commission has.

8 I think it's, in a sense, the court is saying:

Will 9'

you please address the latest information that has been a 10 assembled and give us your evaluation.

11 MR. SHAPAR:

The court did use the words " reasonable 12 assurance" in the actual holding.

But don't forget that the 13 word " safely" is part of the equation.

v 14 COMMISSIONER AHEARNE:

Safely" in what sense?

15 MR. SHAPAR:

Storage.

16 CHAIRMAN HENDRIE:

Well, let's see.

Since the hour t

i 17 l goes on and we need some time to think about this and to have i

la further discussion, I guess what I would like to do is to see i

19 '

now what we ought to ask assembled staff to help us with for I

20,

the next -- in preparation for the next meeting.

21,

And it seems to me that it would be useful if the t

22 '

assorted legal officers and Bill Dircks, whose shop will bear a 23 heavy burden one way or another in this matter, could please 24 try to get together and look toward some analysis and discus-Ace 4=sers neoonm, inc.

25 -

aion for the Commission of the path that we have been, talking

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about here for the last 45-odd minutes.

That is, the Ccmmission 2

-- and I shudder to contemplate it -- hearing this proceeding 3

itself, and with a format which might go something along the 4

line that Peter outlined, and some thought to -- it would be 5

useful, it would seem to me, to have some discussion, perhaps 6,

some options presented about how we might manage that.

7 I would be interested in opinions, certainly, on any 8

differing opinions as to legality, propriety, practicality, or 9

what have you, of such a course.

And I think it would also be 10 helpful if the legal shops, in particular, think a little bit 11 about these questions that extend beyond possible notice and 12 comment, beyond the notice and ccmment stage, and begin to look to questions like how would one either select among participantd 13 14 if a selection was considered acceptable and what the debits 15 l are in that, how,if suggested, the appearance would be lousy, I

16 '

or how one might arrange consolidation to keep the number of 17 actual parties in further -- in actual live proceedings before la '

the Commission down to a manageable number and still get the 19,

viewpoints on questions like shculd 'there be discovery in a 20 case like this, what does it mean here.

l 21 (l It's not so clear to me, in view of the ultimate 22 product, which, I assume, is a statement the Ccmmission does or 23 does not choose one, and have confidence and so on, it is not 24 so clear to me that it is quite the same as many cases where Ace-FedarW Reco, ten, Inc.

25 discovery is appropriate.

But I think some thought would be

,.ic O

pv7 54 useful, and some recommendations.

1 I think questions about how that second stage of the 2

3 Commission proceedings -- that is what I will call the " live" hearings, in my ignorance of better terminology -- what the for-4 5

mat might be.

I trust you will keep into account that if the Commission does this, that I am going to have to go away to 6

7; school for a year or two, if we are going to have very formal 8

proceedings.

9 COMMISSIONER AHEARNE:

I suspect we can provide 10 somewhere in the staff advice on how to.

11 MR. EILPERIN:

You already have a gavel.

12+

(Laughter.)

13 CHAIRMAN RENDIRE:

Actually, I was thinking that an 14 application to carry a pistol might also be a useful --

15 (Laughter.)

16 MR. BICKWIT:

Is there a Commission leaning at this 17 l point on whether you want the formal proceedings?

18 COMMISSIONER AEEARNE:

What formal proceedings?

19 l MR. BICKNIT:

As part of the hearing.

l 20 !

COMMISSIONER AHEAILNE:

You mean a formal hearing as 21 part of the proceeding?

22 MR. BICKWIT:

Yes.

Formal procedure.

t CHAIRMAN M RIE:

Peter is the direction I would 23 24 look to hear a general vote of support for that.

Aca Federse Reoorters, Inc.

25 Would you comment?

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pv8 55 1

COMMISSIONER BRADFORD:

I would, at least at this 2

point, keep open the possibility of several measures.

I don't 3

know that I would opt for it -- in fact, I don't think I would 4

opt for full adjudicatory or full legislative.

But, as I said 5

before, I wouldn't rule out on the basis of comments, A, want-6 ing to make a decision to fund one or more parties in the I

7' presentation of views; B,

at least at that point wanting to be 9

able to listen to arguments, written presumably, rather than 9

oral, as to what the gains from discovery or interrogatories 10 might be, and, by the same token, listen at that time also to 11 '

argument on whether or not we ought to have corss-examination.

12 I am not ready to say at this time that any of them 13 are clearly required, but I guess I would lean in the direction 14 of feeling,at least as to discovery and interrogatories or 15 !

cross-examination, that probably I would want to -- that I would 1

16 want the possibility of at least one of them.

17 CHAIRMAN HENDRIE:

Bu at least a full-dress adjudi-i 18 catory proceeding doesn' t seem to be --

1 19 !

COMMISSIONER BRADFORD:

I guess I am not even abso-20 lutely sure what that means.

21 l CHAIRW HENDRIE:

I am not, either.

22 COMMISSIONER BRAEFORD:

We can certainly do without 23 a jury.

Whether, for example, having a decision made strictly 24 on the record made under oath, what that entails -- it's always sc.4.one neconm, inc.

25 seemed to me that you can take a spectrum between adjudicatory

-- - ~

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and legislative type hearings.

There isn't just a clear fall 2

on one side or the other.

For the purposes of the ADA, yes, there are some things that are adjudicatory and some that aren' t.

3 But as far as our ability under our own discretion to go beyond 4

5 legislative, there just isn' t any clear point at which you fall 6

over into hearings.

There is just a set of proceedings you 7

can add as the basis of notice and comment.

8 CHAIRMAN HENDRIE:

I guess what I was asking was, 9

then, it seemed to me that what you were saying was that you 10 wanted to look at scme of these procedures in the range, but II you weren't saying, "By George, this thing ought to be all the i

12 i way over at the adjudicatory side of the scale."

And I think-there is very little point in the staff then exercising much.--

13 thought about that extreme, but rather concentrate on.the; ele-14 ments you have mentioned as options and how they might. fit ini_.

15 COMMISSICNER BRADFORD:

The judges don't have to 16 l 17 { wear wigs.

i 18 l CHAIRMAN EENDRIE:

Well, if we're going to have 80-l degree rocms, why, we're going to have to have nylcn wigs, at 19 20 I any rate.

I 21 COMMISSIONER GILINSKY:

It seems to me that after 22 we get into this, there may be certain issues that you_want --

23 may want to handle.in a special way, look at discrete questions 24 in more depth or with expanded procedures.

AcsJederal Reco,ters, Inc.

25 CHAIRMAN HENDRIE:

As I say, I think it will be

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useful to have scme discussion and see how far we can foresee.

2 Maybe we can' t do it in total.

3 COMMISSIONER KENNEDY:

I think that 's true, Vic, to

~

4 the extent that we agree that it is.

I think we ought to try 5

to spell it out as best we can at the outset in an initial 6

ruling.

I agree -- what I mm saying, I guess, is I agree 7

wholeheartedly with Howard's point, that at the outset people 8

ought to know where this is going, and as discretely and pre-9 cisely as we can, we ought to spell out forLthem how it is going 10 to get there so they know what to do, just in fairness to them.

II CHAIRMAN HENDRIE:

Now, have all of us wandered 12 '

around the subject enough so that there is at least -- so that 13 the staff offices have at least the impression chat you know 14 what the next step is, and then I will declare my thanks to you 15 for this meeting and adjourn it before you have a chance to ask 16 i more explicit quest ons which I couldn't begin to answer?

And I

17 l I don't care whether it's one paper or three papers or 2-1/2 l

18 ;

papers; please settla among yourselves --

19 l MR. SHAPAR:

I would think you would want the l

20 [ general counsel's view at this point, rather than mine.

I I

21 i think it's reached the stage where you ought to have your own l

22 i i= mediate adviser --

23 CHAIRMAN HENDRIE:

I think we just went over into 24 that.

I will leave you to thrash cut amongst yourselves.

Ac s.o rw R co,.rs.inc.

25 (Whereupon, at 4:20 p.m.,

the hearing was adjourned.)

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