ML19260C694
| ML19260C694 | |
| Person / Time | |
|---|---|
| Issue date: | 12/20/1979 |
| From: | NRC COMMISSION (OCM) |
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| Shared Package | |
| ML19260C695 | List: |
| References | |
| REF-10CFR9.7 NUDOCS 8001080403 | |
| Download: ML19260C694 (71) | |
Text
.
NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
PUBLIC MEETING BRIEFING ON REPORT BY TASK FORCE ON CONSTRUCTION DURING ADJUDICATION Place. Washington, D.
C.
Date - Thursday, 20 December 1979 Pages 1 - 70 1703 020 Telephone:
(202)347 3700 ACE - FEDERAL REPORTERS,INC.
OfficialReponers 444 Nonn Capitol Street 8001 080 bb Washington, D.C. 20001 NATIONWIDE COVERAGE. DAILY
1 DISCLAIMER This is an unofficial transcript of a meeting of the United States Nuclear Regulatory Commission held on Thursday, 20 De nber 1979 in the Commissions'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.
The transcript is intended solely for general informational purposes.
As provided by 10 CFR 9.103, it is not part of the formal or infor'al record of decision of the matters discussed.
Expressions m
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.
1703 021
I 2
CR8893 1
UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
PUBLIC MEETING 1
4l BRIEFING ON REPORT BY TASK FORCE ON l
5:
CONSTRUCTION DURING ADJUDICATION i
6' l
Room 1130 7
1717 H Street, N.N.
Washington, D.
C.
j 8-Thursday, 20 December 1979 9
The Commission met, pursuant to notice, at 9 : 35 a.m.
10 BEFOTE:
11 I
VICTOR GILINSKY, Commissioner (presiding.)
12 !
RICHARD T.
KENNEDY, Comnissioner 13 JOSEPH M.
HENDRIE, Commissioner 14 PETER A.
BRADFORD, Commissioner 15
! ALSO PRESENT:
16 l l
Messrs. Milhollin, Cho, Frye, Bickwit, Kniel, and Karman.
17 '
i 18 l 1
i 19 l l
i 20 i
21 '
22 21l 24 l
4.i a con m.ine.
l 25 i
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pv HEE I
PR0CEEDINGS 2
COMMISSIONER GILINSKY (presiding):
Why don't we 3
get started.
We are here to hear about. the final report of a
the committee headed by Gary Milhollin on the subject of 5
construction during adjudication and all of the problems 6
that that poses.
Its origins go back to the Seabrook case, 7
so f ar back that pe r. haps you can remind us of just how all S
of this got going and tell us about your report.
Please go 9
ahead.
10 MR. MILHOLLIN:
As you recall, this report or this el l study was set up back in the early days of nuclear licensing 12 before Three Mile Island occurred.
It has been a long time, 13 I gue ss.
A lot of events have transpired since we began our 14 work.
15 The commission asked, in its Seabrook opinion of 16 January 6, 1978, that there be a study of construction 17 during adjudication.
And then in January of 1979 the 18 commission established a federal advisory committee to make 19 the study and appointed me chairman of that co m.m i tt ee.
We 20 conducted our work, carried out our work, during 19 79 and 21 finally brought it to a conclusion not too long ago.
This 22 is our presentation of the final report to the commission.
23 The general problem of construction during 24 adjudication took us into areas which we didn't think 25 perhaps we would have to go into origina.11y, but 1703 023
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nevertheless we conducted a complete study of tne licensing 2
experience of the commission.
We looked at decided cases 3
and construction permit proc eedings in considerable detal).
4 We also looked at the commission's experience with stay 5
applications in considerable detail.
6 de came up with some options which are presented 7
here in.this report.
There are three options which we think 3
are the ones that are the most promising ones for changing 9
the present system.
10 (Commissioner Kennedy enters meeting room.)
11 MR. MILHOLLIN:
Before getting to those, perhaps I 12 could just tell you briefly what we f ound out during our 13 factual investigations.
14 First of all, as a result of our review of the 15 commission's lower boards and their licensing practices, we 16 found that no project has ever been turned down as a result 17 of an appeal from a licensing board decision, either by the 18 appeal board or by the commission.
19 CO MMISSIONER KENNEDY:
What significance do you 20 a ttach to that?
21 MR. MILHOLLIN:
dell, it means, first of all, that 22 we don't have a case in which we can say that environmental 23 impacts were wrongly permitted because it turned out that 24 the decision of the lower board was wrong.
25 COMMISSIONER BRADFORD:
I suppose it could also be 1703 024
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p v HEE 1
said that it would show that whatever wrong decisions were 2
made were simply set in concre te by the rules.
3 MR. MILHOLLIN:
You could say it that way.
4 COMMISSIONER KENNEDY:
Well, ther are two 5
different things.
I mean, they are widely different views.
6 You couldn't say boths could you?
7 MR. MILHOLLIN:
Well, perhaps a more neutral way 8
to express that would be to say that we don't know what 9
would have happened had the rule not been present since.we 10 have no experience with a system in which the rule is not in 11 place, and therefore we have no experience with a system in 12 which construction wasn't happening during review.
13 COMMIS.SIONER KENNEDY:
But was there any evidence 14 of the fact that it was substantially biased, the re fo re,
15 ultimately affec ted the conclusions of a higher tribunal?
16 MR. MILEOLLIN:
We tried to answer that question 17 by interviewing members of those tribunals.
That is a 13 difficult question, as you appreciate, to be precise aoout.
19 The appeal board members told us that, in the ir view, the 20 presence of construction had no effect on their decisions at 21 all.
That is, in general, that was their view.
22 Members of the commission, the commissioners 23 themselves, expressed different views as to whether they 24 felt in their review that ongoing construction presented a 25 problem.
Some did.
Some commissioners stated that they 1703 025
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pv HEE I
f elt pressure in their reviews from the existence of 2
constructions.
Others said that the y did no t.
3 COMMISSIONER GILINSKY:
Wait a minute.
de 4
instructed the boards to take the extent of construction 5
into account in making judgments about costs snd benefits.
6 We had said we would take construction into account.
I 7
don't see how anyone can say that they are not taking it 8
into account.
9 COMMISSIONER HENDRIE:
Take into account with 10 regard to costs and benefits on alternative sites, as 11 alternative-site questions might arisa later on in the case 12 after an LWA, but not, for instance, with regard to safety 13 issues.
14 COMMISSIONER GILINSKY:
No, that was in the 15 context of alternat4ve siting.
16 COMMISSIONER KENNEDY:
I would only say that the 17 language of certain decisions on the Seabrook matter, both 18 of the commission and of the First Circuit, are of some 19 relevance to.this subject.
But I am sure that you would 20 understand that.
21 CO MMISSIONER GILINSKY:
Why don't we let Gary go 22 through his presentation.
23 COMMISSIONER KENNEDY:
Before we do, on this 24 point, Steve has his hand up and apparently wanted to say 25 some t h ing.
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p v HEE 1
MR. 03 TRACH:
It is a very small point.
It is 2
just that on the subject of the commission instructing the 3
boards to take into account work that has been done in 4
adjudications, the March '.77 Seabrook decision said that 5
should be done only af ter there had been a finding tnat the 6
alternative was obviously superior to the applicant's site.
7 At that time, then a board should then begin to add into the 3
balance the f act that the work had already been done at the 9
a pp licSnt's site.
10 With the possible exception of the Sterling case 11 which is under review before the comm iss ion, I don't believe 12 that any board at any le vel of the commission has found an 13 alternative to be ooviously superior.
And so none has 14 expressly undertaken any way of some costs.
15 COMMISSIONER KENNEDY:
Thank you.
That was my 16 impre.ssion.
17 COMMISSIONER GILINSKY:
Now, if the picadors are 18 through, we can go on.
19 VR. MI LHOLLIN:
After our first finding, which was 20 to. the e f f ect that we didn't find a case where an appellant 21 reversal had meant that it was wrong to begin construction 22,. and ultimate reversal, the second thing we found was that 23 there were a substantial number of remands by the appeal 24 board of licencing board decisions.
By " substantial," I 25 mean 16 percent is what we found.
We found that in 10 1703 027
30106 a
pv HEE percent of the remands, one out of 10 cases, an issue 2
related to construction.
So, you can assume in about one 3
out of 10 cases in the past, you have the appeal board 4
remanding the case because of some issue related to 5
construction.
6 And we also found that in almost every case 7
construction begins at the time of the authorization of a
construction either by the CP or the LWA.
The reason 9
construction begins is because no one has ever been able to 10 get a stay on petroleum jobbers in the history of the agency, as far as we have been able to determine.
So, the 12 typical pattern is:
you have construction beginning 13 i mm ediat ely t then there is about a one-in-10 chance there 14 will be a remand because the record is inadequate on an 15 issue which relates to construction at some point.
16 COMMISSIONER GILINSKY:
Could you give an example 17 of such an i ssue ?
Alternate sites would be an 19 i ss e.
I suppose quality a ssurance would be ar. issue,
u 20 because if quality a ssurance is inadequate, that means 21 somsone is building into the plant things which presumaoly 22 are inadequate or are approved by inadequate procedure.
23 I guess the overa ll NE?A calance would be --
24 COMMISSIONER GILINSKY:
Let me ask another 25 question.
What would be an issue that is not related to 1703 028
230107 9
p v HEE I
construction?
2 MR. MILHOLLIN:
We tried to set those out in our 3
description of option 3.
I suppose an issue such as 4
instrumentation, operator training, or any other issue which 5
you could assume would be resolved -- well, let's put it 6
this ways an issue the resolution of which would not have 7
any impact on the site until long af ter the adjudicat ion 3
would be finished.
9 COMMISSIONER 3RADFORD:
Would this include whether 10 a particular intervenor was excluded or whether protection
.11 was denied intervenor status?
12 MR. MILHOLLIN:
That would normally be handled, I 13 think, at the outset of the proc eeding.
If the intervenor 14 we re excluded, there would be an appeal immediately on that 15 qu stion.
That. would be resolved before you ever came to e
16 the point where construction could begin.
17 COMMISSIONER 3RADFORD:
What about the exclusion 13 of test results?
19 MR. MILHOLLIN:
Not normally.
I t would be -- I 20 suppose it is conceivable that there could be a ruling in 2i which testimony could be excluded on the ground which would 22 be somehow related to construction, I suppose.
If the beard 23 took a certain position which meant that the evidence would 24 be exlcuded and that position was wrong and it was on a 25 site-related issue, that conceivably could be a problem, 1703 029
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yes.
2 So, what I have said so far. I.think --
3 COMMISSIONER KENNEDY 2 Before you go ahead, would 4
you point out that there has never been a case in which a 5
stay has been granted under Virginia Petroleum Jobbers?
No 6
can you speak to the significance of that f act, the fact, 7
what does it mean?
3 MR. MILHOLLIN:
Nell, again. I think this gets 9
into the area of the differnce of opinion.
Most people we 10 talked to thought that Virginia Petroleum Jobbers was a 11 pre tty tough s tandard.
And I guess it means simply 12 f actually that intervenors are not able to meet it for 13 whatever reason.
14 COMMISSIONER KENNEDY:
What have been the reasons?
15 I mean, t ypicall y?
16 MR. MILHOLLIN The typical reason is that the 17 intervenor cannot show irreparable injury.
That was the la most frequent reason.
19 CONNISSIONER KEBNEDY:
Surely that's not 20 considered, though, an extraordinarily hard standardi is it?
21 I mean, what other grounds in equity would one wish to have 22 in an admitted intervention?
I mesn, i' th: individual 23 involved isn't going to be a ff ected or injured, why should 24 he have an opportunity to stay?
I mean, philosophically.
I 25 am just trying to find out what the thinking is.
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That is a f air question.
I think 2
that you have two concepts, mayoe, that it would be nelpful 3
to distinguish first of all, whether a stay should be 4
granted, period and, second, what the standard is.
Because 5
whether you get a stay depends upon the standard for 6
granting a stay, not on whether the decision below is a good 7
decision or a bad decision, whether it has arrors in it or 3
nott it is purely a function of the criteria for granting a 9
stay.
10 If you decide it would be a good thing to have 11 stays f requently, then you could simply lower the standard.
12 That is to say, you could grant a stay whenever there was a 13 substantial issue, for example, rather than requiring 14 somebody to show irreparable injury -- I am sorry, you could 15 grant a stay whenever the're would be a significant 16 environmental impact, for example, rather than an l'
irreparable one.
You could imagine a spectrum in which 13 there would be a large number of possible thresholds for 19 granting a stay.
20 COMMI SSIONER KE.WEDY:
You are --
21 MR. MILHO LLIN:
What I am saying is the threshold 22 so f ar has been tco high for people to meet.
23 COVMISSIONER KENNEDY:
Your spectrum runs f rom a 24 case of a postulate in which a stay would be granted almost 25 automatically in every case or a case in which perhaps, as 1703 031
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we have it now, whe re it ne ver happens.
2 MR. MILHOLLIN:
Yes.
3 COMMISSIONER KENNEDY:
And somewhere in between 4
there would seem to be a more logical -- or at least some 5
might think -- a more logical position.
And then, I gue ss,
6 the question is how do you get that, how do you define that?
7 MR. MILHOLLIN:
That's right.
If you think, as a 3
general principle, that there should be more stays or that 9
it generally should be easier to get a stay, then you can 10 lower the standard to a number of intermediate positions,
.I l and you take the position according to how easy you think it 12 should be to get a stay and according to the substantive 13 validity of the position you chose.
14 CO MMISSIONER KENNEDY:
But that is what I was 15 trying to get to.
But the princ ipal dec ision that you have 16 to reach is that' you' really want to have more stays.
17 MR. MILHOLLIN:
I think so, yes, because the cost 13 of having more stays is that construction is going to be 19 delayed more frequently, and you should be aware that that 20 is the cost of having more frequent stays.
21 CO MMISSIONER KENNEDY:
Thank you.
22 COMMISSIONER GILINSKY:
I would put it this way:
23 that there are two kinds of errors you can make:
you can 24 grant a stay when, upon f urther examinat ion, the stay was 25 not nece ssary and there wasn't any error, or you could not 1703 032
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grant a stay when there was an error.
And.the question is 2
which of these do you want to ninimize?
And if you want to 3
minimize. the circumstances -- this is what statisticians 4
call type I and type 2 error -- and if you waht to minimize 5
the cases where you have not granted a stay where in fact 6
the re was an e rror, you will grant more stays or lower the 7
standards.
3 COMMISSIONER KENNEDY:
But there is, of course, 9
another f actor, and that is the nature of the error itself.
10 I mean, there are all kinas of errors.
There are questions
.11 involved in the law really of no basic significance to the 12 project itself.
13 MR. MI LHO LLIN:
One of the stay standards de had 14 does depend on the likelihood of the existence of an arror.
15 One of the features of Virginia Petroleum Jobbers is that 16 there must be e demonstration of a likelihood of success on 17 a ppe a l s.
But that is a function of the quality of the lower 18 decision.
But, o f course, you have to make that decision in 19 a f airly limited time frame.
So you don't know for sure 20 whether there is one; all you can say is that it icok s as if 21 there night be.
22 COMMISSIONER XENNEDY:
I also noticed another 23 hand.
Can he interrupt for one more second, Joe?
I wonder 24 if I might just add one comment.
25 One justification that has been advanced by a 1703 033
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of people for the present stay standard is, in part, that it 2
has judicial history and cackground and that the licensing 3
proce ss here undergoes a tremendous review before it fina' y 4
comes to a decision, even by a licensing board s and f or that 5
reason the stay ought to be difficult to obtain.
6 CohWISSIONER KENNEDY Thank you.
I am sorry to 7
interrupt.
Thank you.
8 MR. MILHOLLIN:
de also found, though, that even 9
without the f act of having a case which shows that 10 environmental impacts were wrongly permitted, the present 11 system has created some difficulty simply in the way it 12 f unc t io ns.
And that principal dif ficulties have been when 13 it is necessary to grant a stay af ter construction begins.
14 We have seen some dislocations occur as a result of that 15 necessity.
16 I suppose the principal cases are Seabrook, which 17 everyone remembers, and St. Lucie, in.which there was also a 13 stay, where construction was halted af ter it was begun.
19 We also noticed that there were other 20 disadvantages to the present system.
The one -- again, it 21 seems that almost every point in ny outline is going to be 22 controversial -- but the next po int is that we saw the 23 principal disadvantage of the present system to be one of 24 public perception, which, by its nature, is a difficult 25 thing to be confident about.
We didn't go out and p0.11 1703 034
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members of the public to see what their view was on the 2
immediate-ef f ectiveness rule.
de formed our opinion about 3
public perception principally from interviews with licensing 4
board members and from the personal experience of some 5
people on the committee.
6 Also, we had some intervenor responses to 7
solicitations which we put out f or input --
3 COVMISSIONER KENNEDY:
For the purposes of our 9
discussion, could we define "puolic ?
You know, we talk a
10 about public perception.
My view of the public is there are 11 220 million Americans, and that is the public that I think 12 is there.
But we are not talking about that.
We couldn't 13 possibly be, as you indicated.
So, what could we define the 14 "public" as?
15 COW 4ISSIONER GILINSKY:
Some of them are doctors 16 and some of them are patients.
17 MR. MILHOLLIN:
Look at it this way I suppose 13 one of the purposes of having an adjudicatory process is to 19 allow the public, through intervention, to participate in 20 NRC's proc eedings.
We did find -- or at least it was the 21 opinion of people who had been most closely a ssociated with 22 adjudic ation -- that the immediate-ef f ect ivene ss rule tends 23 to discourage intervenors.
24 COW 4ISSIONER KEENEDYs We are defining, then, the 25 "public" as "intervnors"?
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MR. MILHOLLIN:
No.
I am saying that insofar as 2
the public shows up at our adjudications, that the practice 3
of allowing construction does discourage those people.
- Now, 4
whether they are the public or not --
5 CO MMISSIONER KENNEDY:
The part we're t'alking 6
about is the e ff ect of the rule on intervenors, and that's 7
not quite the same as saying it has an eff ect on the 3
public.
9 MR. MI LHO LLIN:
d ell, I think I would even venture 10 to go further and say that I Lt least am persuaded that it 11 is hard for the community in which the plant is be ing built 12 to believe that NRC still hasn't made up its mind when vast 13 transformations at the site are occurring and it's oovious 14 that heavy equipment is there and lots of people are 15 working.
It is hard, just using common sense, to think tha,t 16 you cannot convince people we are still trying to decide 17 whether the plant should be bulit there or w.hether the NEPA 18 balance has been struck favorably or whether the site safety 19 issues have all been resolved.
20 COMMISSIONER KENNEDY:
That is an important po in t,
21 which is a f air statement, it seems to me.
That is what 22 public perception is.
23 MR. MILHOLLIN:
Yes.
I think it is simply a 24 matter of common sense, I would say.
25 COMMISSIONER GILINSKY:
But are you saying this 1703 036
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looks bad, or are you also saying this a ff ects the quality 2
of decisions ?
3 MR. MILHOLLIN:
So far, I am only saying it looks 4
bad.
I am saying f rom the public's point of view, you are 5
asking the public to belie ve two things, really:
that we 6
haven't made up our mindi and that, second, we're not go ing 7
to be influenced by all this activity.
S COMMISSIONER BRADFORD:
But you have sald that 9
that is the principal drawback to the system as it works 10 now.
Does that mean that the principal drawback is the way Ji it looks rather than the way it is?
12 MR. MILHOLLIN:
Well, I am saying that I think we 13 can be f airly confident that it doesn't look very good.
14 Whether that activity really does prejudice our decision is 15 something that is harder for us to be confident of,.
16 CO MMISSIONER KENNEDY:
The re is an extended 17 discussion in a separate paper of separate views on the 13 subject.
And hopefully, someone of the authors or 19 subscribers to that view can have something more to say 23 aoout it later.
21 MR. MILHOLLIN:
That's fine with me.
I might say 22 that I have only seen this document this morning, so I am 23 not really prepared to respond to it.
24 CO VMISSIONER KENNEDY:
I understand that.
25 MR. MILHOLLIN:
Although I have heard what I 1703 037
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assume to be the principal arguments several times already.
2 So, I think I could probably respond.
3 COMMISSIONER 3RADFORD:
Could you identify this 4
document?
5 6
7 8
9 10
.11 12 13 14 15 16 17
- c. l 18 19 20 21 22 23 24 25 1703 038
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MR. MILHOLIN:
It is a statement of separate views 2
submitted by a minority of five members of the group.
3 MR. CHO I wonder if I might make a slight 4
correction.
It's really not a minority.
It turns out that 5
five subscribe to the committee chairman's views and five, I 6
think, subscribe to a different view.
7 MR. MILHOLIN:
I was jesting when I said it was 8
m inorit y.
9 COMMISSIONER KENNEDY:
In any event, it's a rather 10 substantial view.
.11 MR. MILHOLIN:
We can say that it's more than a 12 s ignificant number, certainly a substantial number.
13 Well, in any case, we found that the public perception is 14 a cost in the present system and I suppose it's up to each 15 of us to decide how serious a coast it is.
16 The possibility of remanded cases makes this problem i7 somewhat worse because if the appeal board reverses the IS licensing board because the record is inadequate and remands 19 the case, then you have a situation where construction is 20 going on without even a decision which is presumptively 21 valid on the books.
22 As I said before, you can assume in the past, at least 23 this has happened one out of 10 tines, in one out of 10 24 cases.
25 So in the case where you have a remand because of 1703 039
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inadecuate record, you have construction going on.
2 COMMISSIONER GILINSKY:
Let me ask you, typ ically,
3 how long does it take for the appeal ocard to order a remand 4
in the 10 percent of the cases that it does?
5 In other words, what is the average time that elapses 6
between the lower board's decision and the case having been 7
returned to the lower board?
8 MR. MILHOLIN:
We did not make a statistical 9
analysis of how long it took for the appeal board to rehear 10 a case.
11 Typically, it takes between 8 and 12 months for the 12 a ppeal board to make its decision on the appeal.
13 Now wheth.er it makes a remand decision faster than that, 14 I will have to conf ess I dor,'t know.
I guess I could turn 15 to our committee and ask if anyone happens to know the 16 answer to that question.
17 CO MMISSIONER GILINSKY:
It sounds like the better 18 part of a yecr, in any case.
19 MR. CHO:
I think, generally, they take the remand 20 in their appellate decision.
They resolve the issues that 21 are resolvaole by the record.
And when they see gaps in the 22 record at that point, they will remand for those particular 23 issues.
24 COMMISSIONER HENDRIE:
So that means that it is 25 out at the end of the appeal ocard proceeding.
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MR. CHO Generally.
2 CHAIRMAN HENDRIE:
But to that time, I would think 3
in a good number of cases, you have to add the time between 4
the granting of an LWA by the licensing board and the end of 5
the licensing board procedure construct. ion permit 6
proceeding, the initial decision on the construction permit 7
procedure, I think.
5 If you want to look at how long after things start 9
getting torn up at the site, is it cefore the appeal board 10 remands, if there is going to be a remand?
11 COMMISSIONER GILINSKY:
The LWA could be held, 12 too, doesn't it?
13 MR. MILHOLIN:
I guess it depends on whether there 14 is an appeal on the basis of the LdA or the CP.
15 COMMISSIONER HENDRIE:
I assume that if one of the 16 parties appeals the LWA, that then there is an earlier 17 resolution.
IS But if the remand comes on the appeal board's review of 19 the initial decision and they just don't like some piece of 20 it that is construction-related, the cons truc tion, in fact, 21 could have been going on for, I guess, easily a year between 22 granting of LWA and the initial decision on the CP.
23 And then, e ss ent ia l ly, another year until ye get out to 24 the appeal board decision.
25 So it could go quite a time.
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MR. MILHGLIN2 The final disadvantage, pernaps 2
I've already talked about it, we've discovered in the 3
present system is that it does allow a considerable amount 4
of environmental impact before the commission itself gets a 5
look at the decis ion.
6 The system is set up so that you're going to have a year, 7
or a year and a half construction before the case would go 8
through the normal procedures and get up to the commi ssion.
9 And so the commission at that point is, well, if it is an 10 alternate site case. I gue ss the commiss ion's options at
.11 that point are limited.
The decision that the commission 12 makes are not the same decision that the 1.icensing board l3 made, which we considered to be a disadvantage insofar as 14 commissioner review is concerned.
15 And, of course, if the commissJoners feel pressure as a 16 result of this fact of construction, then that also would be 17 a disadvantage.
13 Again, we discovered that commissioners feel 19 differently about the existence of the pressure.
Perhaps I 20 should mention the advantages that we found in the present 21 system.
22 The principal advantage.which we found was that it saves 23 money.
Even the amount of money saved by the present system 24 is subject to debate, ou. the one item, one incremenc of 25 money that it saves which is not subject to debate is a 1703 042
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carrying charge on the investment which is made up to the 2
time of the authorization of construction.
3 That is about, we estimate, 550 million.
And the 4
carrying charge on that, I guess, as the report points out, 5
is about -- would today be I percent per month, more or 6
less.
7 So you're talking about half a million dollars a 8
month. If you assume that you would delay cons truction f or a 9
year, that comes out to $6 million, which is probably an 10 insignificant sum of money.
It's less than one cercent of
.11 the project cost.
12 CO MMISSIONER BRADFORD:
Gary, to what extent does 13 the saving rest on the a ssumption that a delay of a day in 14 starting construction is, in f ac t, a delay of a day in 15 commenc ing operation?
16 Are you acsuming that these projects are a.ll en a really 17 tight schedule, such that that delay at the beginn ing 18 translates out one for one at the end?
19 VR. MILHOLIN: No.
The figure I just gave you will 20 be a cost irrespective of whether the delay in construction 21 delays operation.
22 My conclusion is that it would be unusual if a delay in 23 beginning construction.dela ys operat ion, at least for future 24 plans.
25 CO MMISSIONER GILINSKY:
There is some confusion.
1703 043
)30206 24 gshMEE I
MR. MILHOLIN:
The reason for that state men t is 2
that from what we learns if the commission tomorrow 3
decided that the immediate e ffectiveness rule was abolished 4
and applicants had to wait a year until af ter the 5
construction permit, on an average, to begin construction, 6
that they would come in a year earlier with their 7
applications.
That is how they would respond to the change.
3 So that if they planned accurately, there would be no 9
delay in operation as a result of prospective change in the 10 rule.
11 Somebody who is already in the process couldn't adjust to 12 the additional delay, might experience a delay in 13 operations.
14 But for f uture plants, we did not find the likelihood 15 that there would be a delay in operation principally because 16 already the' utilities are in the position of projecting 17 demand on very speculative grounds.
18 So a little more speculation wouldn't qualitatively 19 change the problem.
20 So you can't say with any confidence at all that delaying 21 construction would delay operations for future plants.
It 22 is porsible.
It depends upon how accurately they forecast 23 demand.
24 COMMISSIONER 3RADFORD:
So where does that saving 25 of noney came frem as to those ruture plans?
1703 044
30 07 25 gshHEE I
MR. MILHOLIN:
As to the future plants, if we 2
a ssume that they're going to spend, say, s50 million to get 3
up to the point where they would under the present system be 4
authorized to begin construc tion -- we ll, no, let me say 5
that differently.
6 We a ssume that we're going to stretch out the licensing 7
procedure by a year.
That means that they have to carry the 3
investment f or a longer period. Even though it doesn't 9
result in a delay of operation, they still have to spend 10 earlier the money they need to spend to get up to the point 11 where they can be authorized to begin construction.
12 COMMISSIONER BRADFORD:
Is that true under your 13 Option B as well?
14 MR. MILHOLIN:
Yes.
15 COMMISSIONER HENDRlE But for somewhat less time, 16 -
I think.
17 MR. MILHOLIN: Then for Option C, yes.
IS COMMISSIONER HENDRIE:
Then for Option A, I think 19 it's also true.
But again, for a shorter period than for 20 Option 3, generally, it is ny impre ssion --
21 COMMISSIONER BRADFORD:
What that seems to say is 22 that if the response to Option B is that which you predict, 23 that is that those issues would simply be brought into the 24 commission f or consideration earlier, then Option B cegins 25 to look like sort of a modified early siting proposal of the 1703 045
30208 26 gshHEE 1
sort being talked aoout in the siting cnd licensing act as 2
belng a potential saver of time and money.
3 That is, certain site-related issues get solved sooner.
4 And I need to.think about it more, but it is hard to see how 5
it would be saving money if you do it five years in advance, 6
but costing money if you do it six months in advance.
7 Co.vNISSIONER HENDRIE: You will remember that the 8
arguments on the early site review were not that it was 9
going to make the totality of the process shorter or.
10 ind eed, there was even some question about whether it would
.11 be cheaper or more expensive.
12 But the argument was to get the site-related arguments 13 out of the way early and independent of the particular 14 projects so that when the utilities decided, we really do 15 need a plant now and we really do need it in eight years, or 16 wha te ve r, that you would be able to start the project 17 knowing you had a site, where.you could put it, and in 18 e ff ect, have already put in those prior years.
19 Now what we are hearing here, I don't find it consistent 20 with the sort of picture that we have had of the early site 21 review and its advantage s and disadvantages.
22 COMMISSIONER 3RADFORD:
I would have said the 23 reverse, that some of the advantages of early siting are 24 also present in Option B, not all of them, because it is 25 more clearly tied to a specific plant.
1703 046
302'09 27 gshHEE I
But if it is, in fact, beneficial for utilities to bank 2
five or six sites with the expectation that they will never 3
use more than three or four of them, then it is hard to see 4
how the additional cost involved in getting that same 5
circumstances to a particular site a few months in advance 6
of going through all the rest of the application wouldn't 7
also be beneficial.
3 But that's just a way of thinking acout the proolem that 9
we will have to, I guess, come back to.
10 We shouldn't take Gary too f ar afield with it right now.
.11 MR. MILHOLIN:
We ll, ma ybe it would be a good 12 thing to emphasize that so far we're just talking about the 13 interest cost on the investment and that is a very small 14 amount of money.
It is probably an ins ignif ic a nt amount of 15 money, anywa y.,
16 The significant amounts of money would emerge if 17 operation we re dela yed.
IS So I think that we can conclude that it saves money, but 19 not very much, unless operation is delayed.
And it is hard 20 to predict for sure, but we don't think that that would 21 happen, at least for future plants.
22 COMMISSIONER 3R ADFORD:
Le t me now a sk some other 23 people about that because they seem to think it is -- their 24 statement of use actually contains the sentence:
"Each day 25 of unnecessary delay in the operation of a plant means 1703 047
230510 28 gshHEE I
savings of oil foregone."
2 Now where do you get a basis for begin concerned about 3
delays.in the _ days of operation?
4 MR. CHO One thing is I think we are talking 5
about many existing plants, existing in the sense of being 6
in the pipeline right now.
And also, those plants in the 7
futura that have operational deadlines.
8 In other words, demand for those plants which do not 9
allow themselves this leeway of additional time.
10 CO MMISSIONER BRADFORD:
A plant that has a CP is
.I l unlikely to be subject to whatever modification we might 12 make.
13 MR. CHO:
That's right.
14 CHAIRMAN HENDRIE:
It depends upon the proposal 15 you adopt here.
16 MR. CUAY:
The proposal right not is to acply this 17 to utilities that have not gone into the hearing mhase.
IS Those are utilities that have already planned for this plant 19 and have projected some on-line date.
20 So that would represent a cause to them.
21 MR. FRYE:
The otiser thing that it strikes me as 22 being very uncertain.
Obviously, ac'te been going through a 23 period where demand has not risen as rapidly as had oeen 24 anticipated, which meant that there was some slack in the 25 schedule.
1703 048
302'11 29 gsnHEE I
Now if that should change, we could be in just the 2
opposite situation.
And, of course, I think it's al.most 3
impossible to predict whether it will change or whether it 4
will remain the same.
5
- MR. CHO:
If I could make just one more comment.
6 It's not directly responsive to your question, Commissioner 7
but at least the applicants tell us that every day that you 3
delay operation, for whatever reason, whether it is 9
Justifiable or not, that because of inflation, it makes the 10 cost go up.
Il COMMISSIONER BRADFORD:
I understand that.
But 12 Gary was sayin; that your group didn't see any, as I 13 understood him, direct translation in days of delay in 14 construction commencing and into day of operation 15 -
commencing.
16 And since, in your separate statement, you have focused 17 somewhat on delays in the date of operation. I wondered if 13 that meant that you disagreed with the conclusion about the 19 relationship between construction commencing and operation 20 commencing?
21 MR. FRYE I think, as I said, that it is an area 22 that is very uncertain.
And I think it is a mistake to 23 a ssume that in every case a utility would be able to simply 24 apply earlier by a sufficient time so as not to delay 25 commercial operation.
1703 049
230212 30 gshHEE I
It may be true that that will happen, but I think it is 2
very difficult to predict it.
3 MR. CHO But we're saying, given that operational 4
delay, then there are these costs in financial terms and 5
also in savings over time.
6 That's the thrust of our statement.
7 COMMI SSIONER BRADFORD:
So if you assume there is 8
an operational delay, then you can get that result.
9 COMMISSIONER GILINSKY:
You're also assuming that 10 all of this power is replaced by power generated by the 11 burning of oil.
12 How did you come to that?
13 MR. CHO:
We ll, I think that there are some 14 a ssumptionc one makes.
Oil is a major fuel source for power 15 plants.
I, suppose we could say that this means that 16 a dditional coal-burning and going through the environmental 17 e ffects of burning coal.
18 COMMISSIONER GILINSKY:
But that's a dif ferent 19 matter.
I notice page 19 of your statenent leans pretty 23 heavily on the dependence on foreign fuel oil, and so on.
21 And you start of f by quoting the President, who said that 22 a power plant could displace up to 35,000 barrels of oil.
23 And then lower down on the page, you have ecuated that to 24 35,000 barrels of oil a day 1 whereas, in fact, it is only 25 part of that power that is replaced by oil.
In fact, the 1703 050
33213 31 gshM EE I
Department of Energy has put together some interesting 2
numbers on that.
3 COMMISSIONER HENDRIE:
Well, let me make some 4
f urther comments, as long as we have extended the discussion 5
on this point considerably.
6 I don't think it is worthwhile wrangling at this se ssion 7
over whether or not delayed nuclear generation will be S
replaced all by foreign oil or all by coal or some place in 9
the middle.
10 Obviously, on a country-wide mix, it will be somewhere in
.I l the middle and I. think we all understand that.
I don't 12 think it is worth delaboring on the question of delays in 13 operation and costs attendant thereto.
14 Let's please note that there are two sorts of costs 15 associated with what we have called loosely delay in 16 operation.
17 The first has to do with some implication that a plant 18 spends more time in the construction phare tnan would 19 otherwise be the case due to some eff ect of the things that 20 we're talking about now.
21 So that there is a longer period of time in which some 22 portion of the capital expenditures are on the plant. are 23 having to -- interests having to be paid and hence, there is 24 a cost a ssociated with that if, indeed, the construction 25 period is extended.
1703 051
133214 32 gshHEE I
Now I think some of Peter's comments were directed to the 2
point that if construction is delayed by three months, that 3
doesn't necessarily mean that the period during which those 4
expenditures are occurring once it starts are three months 5
longer.
6 You just translate the construction period on forward in 7
time.
8 But there is a second kind of cost and that is if you 9
planned your system in a utility system to have this 10 increment of generation on hand, se/ on January 1st, 1985,
.11 and in f act, because of something related to the immediate 12 e ff ectiveness rule, it doesn't come on until six months 13 later and you have to go out for those six months and make 14 arrangements to purchase power for your system which you had 15 not planned to do because you thought you would have your 16 own capacity to make it.
17 And if that purchased power costs more than the power 13 would cost if you were generating it in your own plant, why, 19 then, that is an additional cost.
20 And I suspect that those are rather more serious costs 21 that are associated wlth what we call delays in construction 22 because, a s I say, the construction occupies a certain 23 period and there is a certain length.
And it either starts 24 now and runs f or se ven years or it starts in three months 25 and runs seven years, or whatever.
1703 052
30215 33 gshHEE 1
CO MMISSIONER GILINSKY:
How do you react to Gary's 2
observations that it.this rule were not in place, the 3
applicants would simply cone in earlier?
4 COMMISSIONER HENDRIE:
To the extent that we l ook 5
forward to a time of ordering of new plants out a suf ficient 6
time for a change in the rule to be recognized by system 7
planners and taken into a ccount, then I think what he says 8
is quite correct.
9 They will simply have to file the six months or a year or 10 a year and a half, or whatever the appropriate guess is,
.11 earlier in order that the construction can start at the time 12 it needs to start for the construction period to run its 13 course and get the generation on line when you predict that 14 you are going to need it to meet demand.
15 CONNISSIONER BRADFORD:
But they may just ce 16 filing depending upon the option chosen, they may just be 17 filing as to particular issues.
18 CO MMISSIONER HENDRIE That could also very well 19 be the case that there could be a selected filing of some 20 kind which would get them started on these issues.
Sut as 21 some of the other folks here point out, I must say our 22 concern up until this morning has been considerably less 23 with some sort of future equilibrium state of incoming 24 applications and how those are to be orderly processed.
25 But more, how do we manage to digest and get into some 1703 053
730216 34 gshHEE I
reasonacle shape and get moving the cases we've got?
2 Now what we've got in hand is aoout, I don't know, a 3
nominal 20-o dd cases in review for construction permits to 4
which this proposition would reach.
5 And some of those units, 20 or 25 units and some of 6
those are already well known to be cancelled and others 7
likely to come.
3 It is possible that we have come now af ter many years of 9
nuclear adjudication, administrative process, to fix up the 10 hinges in the lock on this particular barn dear at a time
.11 when the last cow has already passed through.and we really 12 could have just left the whole thing alone.
'3 Nevertheless, guys, I don't want to discourage you, Gary, la because I think it is a good report, a remarkably good 15 report, as a matter of fact, and is valuable in its own 16 r ight.
17 But I'm not sure.
18 You know, it really does speak to the great days of 20 19 applications for cps a year, and how do you digest tnose?
20 I*
is qJt clear that we're going to f ace that situation 21 soon.
22 COMMISSIONER KENNEDY:
That might be a useful 23 appendix to the discussion on the puolic perception 24 ouestion.
25 MR. MILHOLIN:
I suppose if you had to pick a time 1703 054
130217 35 g shHEE 1
in which it were propitious to make prospective changes, 2
this would be a pre tty good time if you don't have a lot of 3
plants coming in incrementally.
4 COMMISSIONER HENDRIE:
Yes, that's true.
5 MR. MILHOLIN:
You are oing to ha ve a brea thing 6
period, so to speak.
And I suppose that this would oe a 7
good time to order thing s for the future.
8 CONNISSIONER GILINSKY:
Let me say something 9
else.
You may have covered this.
But could one look 10 forward to savings in construction time?
J1 Once these decisions in other words,,1f you hold up 12 construction until the princlpal issues are resolved, the 13 constructor has lost a certain amount of time, but he is 14 then pretty confident that he is not going to have to make 15 changes to the extent he might have otherwise.
16-(Commissioner Bradford leaves the ' hearing room. )
17 COMMISSIONER GILINSKY:
In other words, he could, 13 it seems to me, proceed more confidently than he could 19 o th e rw is e.
20 MR. MILHOLIN:
There are a couple of points that 21 are relevant to that statement, yes.
I think the fact that 22 LWAs seem to be going out of vogue seems to indicate that 23 people are unwilling to commit funds on the strength of 24 simply an LMA.
25 So there seems to be some recognit ion in the industry 1703 055
J30'201 36 gshHEE 1
that more certainty is needed.
2 3
4 5
6 7
8 9
10
.11 12 13 14 fl 15 I
16 17 la 19 20 2f' 22 23 24 25 1703 056
'3030 37 mgcH EE 1
Second, the disruptions which occur because of 2
stays af ter construction oegins would be avoided, of course, 3
if you didn't allows people to start, so in those few cases 4
.in which disruptions occurred -- and there have been very 5
few -- would be avo ided.
6 COMMISSIONER HENDRIE:
Well, you are still 7
vulnerable under any of the options to losing in the Appeals 3
Courts.
9 MR. MI LHOLL I N :
That's true.
10 COMMISSIONER HENDRIE:
And, in fact, I think one 11 of the construction halts that did cause considerable 12 turmoil in a project was a court order, wasn't it?
13 MR. MILHOLLIN:
That's true.
de thought our 14 mission ended with the Commission, but the re is that danger, 15 o f' course.
Ideally, you never know for sure until the 16 U. S. Supreme Court denies certior ari, but you have to 17 decide at some point that you're going to co mmit yourself, la and the question is, whe re sho uld tha t point be.
19 The final dicadvantage o f the s ystem, again, is 20 one which is subject to debate, and that is, under the 21 present systen the Appeal Board makes its decisions o ff the 22 critical path -- that is, it makes its decisions in an 23 atmosphere in which construc tion is already started end the 24 a ppl ic an t is not waiting for the A: peal Board to decide 25 before the applicant begins.
1703 057
30302 38 mgcHEE 1
I think the Acpeal Board memoers clearly consider 2
that to be an advantage in the present system.
They would 3
consider it oisadvantageous to, well, for their decision to 4
be the one which authorizes construction since the project 5
would be waiting for them to decide.
5 COMMISSIONER GILINSKY:
Well, let's see.
tou're 7
saying that if construct ion was waiting for their decision, S
they would f eel the pressure.
9 MR. MILHOLLIN:
Yes.
10 COMMISSIONER GILINSKY:
But they feel no pressure 11 if the construction is just moving along?
12 MR. MI LHOLLIN:
Yes.
Unfortunately this report is 13 one in which any statement about it almost always has a 14 contrary statement which is only slightly le ss plausible 15 perhaps, which didn't make it easy to do this job.
- But, 16 yes, it is true that you would have to take the position 17 that knowing the construction awaited your decision creates 13 more pressure on you than knowing the construction is going 19 on.
Tha t's right.
20 CO VMISSIONER HENDRIE:
But the y are a little bit 21 different things.
22 MR. MI LHO LLI N :
Yes, they are.
23 CONNISSIONER HENDRIE:
The first is a pressure to 24 hurry on and come to a decision cecause there are 25 substantial interests ooth ways resting on the decision --
1703 058
130303 39 mgcH EE I
a general pressure to get through it anc get it published, 2
whereas the other one is a question of whether as you review 3
what you can regard as somewhat of a more leisurely pace 4
perhaps but one not under the pressure of the project 5
whether in that circumstance, any member of the Appeal Board 6
f eels particularly oppressed in deciding an issue like 7
remand or whatever by the fact that the construction is S
going ahead, and if those members don't feel the leas t bit 9
impeded in saying, " Nope, go back and think about it some 10 more" -- by that 11 CO MMISSIONER GILINSKY:
It seems to me inclusive 12 in this is the assum.ption that construction will never stop, 13 because it seems to me implausible that you would f eel 14 pressure if the project which hasn't started is waiting to 15 start and waiting for your decision, but you aould not.f eel 16 pressure or would not be affected by the state of 17 construction in ordering the project halted when it had 13 advanced to some further stage.
19 COMMISSIONER HENDRIE:
That would only be true if 20 a reasonable assumption of the Aopeal Board was that there 21 was not particular merit in the lower Board's decision, and 22 that it was just as likely as not that they were dead wrong 23 and hence there was great pressure to get to the merits of 24 the case and stop that improper construction as well as let 25 it go ahead if it was proper.
1703 059
130304 40 m gcH EE I
But I think the Appeal Board takes what I would 2
regard as the not unreasonable view that the proce ss, 3
through to the initial decision of. the Licensing Board is 4
not an offhand and casual examination of the merits of the 5
issue and, in fact, has a high likelihood of having produced 6
a proper result in the law and the Commission's regulations, 7
and that that is a reasonable presumption.
8 I think it is.
Then you don't nece ssarily f eel, 9
as you sa y, the equal concern with it either not having 10 c on s t ruc t io n, either not having started and waiting on you, il or having started and now awaiting your review.
12 (Commissioner Bradf ord entered the room. )
13 MR. MILHOLLIN:
I tnink we might all icok at this 14 a little dif ferently if we did have a pa ttern of re versals 15 and refusals of plants on appeal.
It might be interesting 16 to ask whether we would have a 'need e ffectiveness rule if 17 one out of e very four plants were ultimately turned down on 13 appeal and it were nece ssary to tell the people that were 19 building it, "That's just too cad."
20 COMMISSIONER 3RADFORD:
Let's see.
Absent that, I 21 agree with you.
It is very hard to tell one way or another, 22 say, about alternative site issues.. If the plant is built 23 at one site, you have really no way of knowing whetner sone 24 other site might have been better.
25 But the need for power is different.
Su ppo s ing 1703 060
)30305 41 mgcHEE you knew that a large numoer of plants had been deferred or 2
canceled because ultimately the need for power simply did 3
not materialize.
Mightn't that te.ll you something about the 4
error record in the real world, either if the old appelate 5
proce ss wasn't catching it?
6 MR. MILHOLLIN:
I suppose it would, although 7
you've picked an issue on which, I think, it is difficult 3
for anyone to be very confident -- th e n eed f or power 9
i ss ue.
If the Licensing Board were consistently wrong in 10 safety issues, that would be different.
I would just 11 suggest that that would be different from the case wnere the 12 system might be wrong on need for power Lssues, and they 13 tend to change while the proceeding is going on, so it is 14 very hard for the process, I.think, to handle.
15 I thought I would run through the options, if you o
16 lik e, briefly.
17 CO MMISSIONER GILINSKY:
Please.
13 MR. MILHOLLIN:
The first option is Option A.
It 19 is dif ferent from the other two options in a principal 20 respect, and that is it is a separate decision on 21 e ff ectiveness rather than being a decision on the merits.
22 It operates in the manner of the stay -- that is, tne 23 decision is whether we're going to allow construction while 24 the nerits are being decided on appeal.
25 The option as we have pre sented it would include a 1703 061
i30306 42 mgcHEE I
decision by the Licensing Goard first as to whether the 2
Licensing Board thinks there is a substantial cuestion 3
remaining at the end of the hearing on an issue relating to 4
construction.
If the Licensing Board find such an option to 5
be present, the Licensing Board would not authorize 6
construction.
7 COMMISSIONER 3RADFORD:
I suopose you could split 9
Option A in diff erent ways depending on who had to make that 9
decision.
In other words, the Acpeal Board could make it.
10 MR. MILHOLLIN:
Well, the Appeal Board would 11 review the Licensing Board decision before construction 12 would begin under Option A.
But you could dispense with the 13 Licensing Board's decision.
Our assumption was that it la would be good to have the Licensing Board decision, cecause 15 it would make it easier for the Appeal Board to review, 16 rather than presenting the Appeal Board with an enormous 17 record which is not f o'c us e d.
You give them a Licensing la Board decision which would address the specific ef fect in 19 this cuestion and ref er to places directly f or support, so 20 it would focus the Appeal Board's review and allow them to 21 do a better job in a shorter period of time.
22 COMMISSIONER 3RADFORD:
What would.the Licensing 23 Board standard be?
24
'4R. MI LHO LL I N :
The Licensing 3 card standard would 25 consist of two things.
First, the Licensing Board would 1703 062
130307 43 mgcHEE 1
have to decide that the issue in question related to 2
construction.
For example, alternate sites would be an 3
obvious example, and second, that there had to be some 4
substantial question remaining on that 1.ssue.
5 So the Licensing Board would, in effect -- the 6
standard would have two elements.
7 Co.VMISSIONER 3RAOFORD:
Why would the Licensing S
Board be issuing, be permitting construction itself if it 9
felt there was still a substantial question on alternative 10 sites?
.11 MR. MI LHO LLIN:
dell, i.t would, I think, say to 12 itself that, well, we have an issue here which is related to 13 construction at alternate sites, for exampic.
The evidence 14 is conflicting.
What the arguments are are conflicti.ng, and 13 the argument against the result which the Licensing Soard 16 has come to is a plausible argument supported by substantial 17 evidence, but we just don't think it is persuasive in light 13 of the arguments on the other side.
19 So that would be the Situation One in which the 20 Licensing Soard would say, "We ll, we think it is subject to 21 debate, but we think it should be X rather than Y."
That 22 would be Case Numbe r one, and in Case Numoer One, 23 construction would not be allowed to cegin until the Acceal 24 Soard had decided alternate sites on the merits.
25 In Case Number Two would be th.e case where the 1703 063
'30$08 as mgcH EE I
issue is alternate-sites, out the intervenor has made no 2
plausible showing, either on the evidence or on the law, and 3
so the Licensing Board would, in e ffect, consider an aopeal 4
to be frivolous and allow construction to begin.
5 I think, as you know, I personally did not vote in 6
favor of Option A.
I think there is a risk, which I think 7
you are bringing up with your question, that the Licensing 3
Soard might not be able to make this decision success fully.
9 I think f or Option A to work, we have to assume that it 10 could do that and would do that.
~.1 1 COMMISSIONER KENNEDY:
When you say "could not 12 make this decision successfully" --
13 MR. MILHOLLIN:
We ll, perhaps that was a 11.ttl e la strong.
It night err from time to time in making this 15 appraisal.
16 COMMISSIONER KENNEDY:
Which is an appraisal of 17 which case it really is.
13 MR. MILHOLLIN's Whether the question would be 19 substantial, I think, is the main point, because 1: aould be 20 clear and to the issue on construction.
That's usually 21 going to be pretty clear.
The proolem will come in deciding 22 whether the problem is "suostantial."
23 In the case I just posed, I think it would be one 24 in which the Licensing Board could handle that wita no 25 problen and could say, "Yes, there is substantial evidence 1703 064
?30309 45 mgcHEE I
there is a good argument on the law.
de don't think it is 2
friv;1ous, and we think it should wait for an appelate 3
r e so l u t.io n. "
On the other hand, you can say, "Well, this is 4
just frivolous.
It is not suostantial.
There is no way 5
this is going to be reversed."
6 MR. CHO:
May I just make one point on this 7
question of the Licensing Board's acility to make the 3
substantial issue de termination.
That is subject to a ppeal 9
also, and the parties will, if they disagree, will make 10 their views known, so it is not wholly determinative of the 11 Licensing Board determination.
But given that record, it 12 will help the Appeal Board then to make that decision --
13 whether we do have an i.ssue that the Board is holding up 14 construction until it is resolved on the merits.
15 COMMI SSIONER KENNEDY:
Youfre leaving the 15 que s tio n, then, to the Appeal Board?
17 MR. MI LHOLLI N:
Well, construction doesn't begin 13 after the Licensing Board decides yes or no whether 19 construction can begin.
It will decide that according to 20 whether there is a sucstantial question and so forth.
That 21 will go up to the Appeal Board, and construction will not 22 begin until the Appeal Board says, "Yes, you are right on 23 that que s t io n, the e ffectiveness question?"
That's r ight.
24 COMMISSIONER GILINSKY:
Please.
25 MR. FRYE:
I would like to add one point.
As we 1703 065
730310 46 mgcHEE 1
envisioned Option A, there would also be a period of time 2
for the Commission to review the action taken by the Appeal 3
Board, so the Commission would have an opportunity to look 4
at the issues involved in any particular case prior to the 5
Appeal Board's review.
6 COMMISSIONER KEiNEDY:
Refresh my memory.
What is 7
the total amount of elapsed time?
3 MR. FRYE:
.ie envision about 90 days.
9 MR. MILHOLLIN:
Two months for the Acpeal Board 10 and another month f or the Commission, so it would be about 11 three months.
12 COMMISSIONER HENDRIE:
That is sort of comparable what we have la~ eled as an interlm licensing 13 to the present, c
14 array in which an initial decision of a Board.
The Appeal 15 Board has about 60 days to review and decide whether it a
16 thinks there are some things which ought to hold the case up 17 or not, and then it comes to the Comm iss ion.
18 Were you successful in making a best attemp t at, 19 what was it, 30 days or something like that?
20 COMMISSIONER KENNEDY:
only on the rhetoric al 21 level.
22 (Laughter.)
23 COMMISSIONER HENDRIE:
But something comparable to 24 that?
25 MR. BICKWIT:
That was " seek" to tssue a decisien 1703 066
)30311 47 mgcH EE I
in 20 days.
2 COMMISSIONER KENNEDY:
Cur searches have almost 3
always proven unf ruitf ul.
4 CO MMISSIONER HENDRIE :
It is somewhat similar to 5
that.
There was "furtherd in the interim statement, sort of 5
advice to the Licensing Board to keep an eye out for things 7
that struck them as the proceeding came along to flag for a
Commission review and so on.
9 Onward.
The second key concept in this 11 Option A is the nature of the decision.
It's not a decision 12 on the merits.
It's a decision on e ff ectiveness, so it's 13 possible that construction will occur before the final 14 decision on the merits is made, but presumably not on a 15 construction'related issue on which there is a substantial 16 question remaining.
17 CO MMISSIONER HENDRIE :
At least the Appeals Board 13 and the Commission would have had a chance to decide that it 19 was not likely enough to succeed on tne merits to make it 20 worthwnile to hold the construction.
Me could always be 21 wrong, but at least it is several more layers of review.
22 MR. MILHOLLIN:
That's right.
I'm just pointing 23 out there is a risk -- you could be wrong.
24 MR. CHO:
And I might add that this option does 25 resolve those issues on the merits which have been 1703 067
?33312 48 ngcHEE I
identified as being important, that they ought to be so 2
resolved bef ore construction beg ins.
3 So it is, I think, a little misleading to 4
categorize it as a stay procedure.
I think it's easier to 5
understand if one reviewed it as a selective approach or a 6
selective identification of those issues which are so 7
important that it warrants holding up construction and have 3
those issues decided early and let the remaining issues then 9
follow the present system.
10 CO MMISSIONER GILINSKY:
And those issues, you
.11 think, can be decided in 60 to 90 days?
12 MR. CH02 Well, of course, it depends on the 13 completity of issues and the numoer of those issues, but 14 taking the relatively little -- the case of relatively 15 little complexity, that we thought it could be done within 16 tha t' t i.$ e.
17 CO MMISSIONER GILINSKY:
Gary?
18 MR. MILHOLLIN:
The second opt. ion, if I might run 19 through that one, is a decision on the merits, but to reduce 20 the time necessary for that kind of a decision, we have 21 tried to create two categories under Option B -- that is, we 22 have put in the first category, the category on which a 23 merit decision would be required, the issues which are 24 typically related to construction.
And those would ce the 25 issues which we now have segregated in our practice f or 1703 068
130313 49 mgcHEE 1
LWA 1 and 2, and the issues would include all of the NEP A 2
issues and a.11 of the site saf ety issues.
3 And under Option B the y would be handled as a 4
package by the Licensing Board first and go up to the Appeal 5
Board as a package for early decision on appeal, and 6
construction could only begin af ter the Aopeal Board 7
affirmed on the merits the Licensing Board decision on those S
issues.
9 The key concect, I think, in this option is that 10 first of all the category of issues decided is determined in
.11 advance by the rule, rather than allowing as Option A does
.2 the Boards to decide on an ad hoc basis which issues are 13 construction related.
That is, this rule would say, "Okay, 14 here is a category of issues which have to be decided on the 15 merits, and we've decided in advance that these are the 16 construction related issues."
17 So that is a key concept under Option B.
18 The second key concept, which I guess I've already 19 mentioned, is it is a decision on the merits rather than, in 20 e ff ect, a decision on e ff ectiveness or a stay decision.
I 21 don't think it is misleading to characterize it as a stay 22 decision under Option A, because that is what it is.
Option 23 8 is a merits decision on certain issues, and those issues 24 again 25 COMMISSIONER GILINSKY:
That would be the final 1703 069
?30'314 '
50 mgcHEE I
decision of the Appeal Board?
2 MR. MI LHOLLIN:
That would be the agency's final 3
decision unless the Commission accepts review on the merits 4
of those decisions.
That's right.
5 So presumably if construction begins, when 6
construction begins, one would know that the agency has 7
finally decided all of the issues related to construction on 8
the merits.
This is Option B.
9 MR. BICXWIT:
Gary, there are two variables 10 there.
They don't have to follow each other into Option A 11 and into Option B.
Alternatively, you could put -- you 12 could designate the issues and have that a feature of Option 13 A,
couldn't you?
14 MR. MILHOLLIN:
Yes, you could.
That's right.
15 MR. BICKEIT:
And maintain the tbrust of Option 16 A.
I mean, you don't have to differentiate A and B on those 17 grounds in order to differentiate the thrust of A and B.
18 MR. MILHOLLIN:
That's true.
You could say, under 19 Option A, you could say for the guidance of the Boards, the 20 following issues are construction related and list them.
21 Then the only thing the Board would have to decide under 22 Option A would be whether a substantial question remains as 23 to those issues.
So there would st Lll be a diff erence 24 between the options.
25 That second question of whether a substantial 1703 070
)30315 51 mgcH EE I
question remains would not be made under option 3 because it 2
would be a decision on the merits.
3 COMMISSIONER GILINSKf:
Is the re some example of 4
some other adjudicatory process where this sort of stay 5
procedure under option A is used with a Soard or a Court 6
deciding that substantial issues remain?
7 What trouoles me, in e ff ect, we're asking tha 3
Board to say, "This is what we've decided, but the re's a 9
fair chance we may be wrong."
10 MR. BICKWIT:
Well, under the current sytem, the
.11 Licensing Board is sometimes asked, or could be asked under 12 our Rules, to decide whether they are probably wrong.
One 13 of the f eatures o f the Virginia Petroleum Job ~ ers standard o
14 is the person seeking the stay, likely to prevail on the 15 merits, and the Presiding Officer under our Rules can be 16 asked to make that decision.
So it is not unprecedented.
17 MR. FRYE Ma y I a dd, I think that is a valid 13 criticism, and we're trying to avoid that by having the 19 Licensing Board focus not on whether it decided the issue 20 only, but on whether it was an issue about which there was 21 a substantial question -- in other words, there was a case 22 on either side of the issue, so the Licensing Board would 23 look at it and say -- I think Gary gave this as an example 24
, earlier -
"He re's an alternate site i ss ue.
The intervenors 25 have an arguable case, but we believe they're wrong.
But i703 071
30316 '
52 mgcH EE I
s inc e they have an arguable case, we celieve this is the 2
sort of issue that ought to be finally resolved by the 3
agency before construction begins."
4 COMMISSIONER GILINSKY:
Thank you.
5 MR. MILHOLLIN:
The third dption I sucpose is the 6
easiest one to explain, and that is that it. would be simply 7
an abolition of the immediate e ff ectiveness rule for all 3
issues, so that it would not be necessary to set up a 9
category of issues under Option C.
And, of course, the 10 decision itself would be a decision on the merits finally of all issues.
12 You may have noticed in our discussion of Option C 13 that it does have an advantage which may be more important 14 today than it was when we started our study -- that is, that 15 If you~are not confident -that you can distingu(sh 16 construction related issues from ordinary safety issues, 17 then option C begins to look ostter.
18 That is, we have assumed that you can decide that 19 c e rta in issues are construction related, but if you c annot 20 assume that it is possible to design a plant at the certain 21 f acility which would be sufficiently saf e, then you might 22 want a merits decision on all issues and not just 23 construction related issues, because if it turns out that 24 you could no t, for example, have a system of operator 25 training which would be adequate -- this is just 1703 072
)30317 53 agcH EE 1
hypothe tic ally -- that perhaps you wouldn't want to let 2
people build plants at all until you dec ided that.
That 3
would be an engineering question, of course.
4 COMMISSIONER GILINSKY:
We ll, the technical 5
competence of. the utility would seem to be such an issue.
6 MR. MILHOLLIN:
Yes.
There may be several such 7
issues -- that's right -- which I suppose, up to now we've 3
considered that those would be pure, safety issues, and the 9
Commission would require whate ver was necessary from the 10 lic ensee.
.11 But if you can't assume that that is possiole, 12 then you may want a final decision on the merits.
That is a q
13 thorny issue, and I just bring it up.
But it is there.
a y
14 15
~
16 17 18 19 20 21 22 23 24 25 1703 073
30 01 54 pv H EE 1
COMMI SSIONER 3RADFORD:
Does it follow f rom that 2
we might need some combination of 3 and At that is, 3
implicitly stated issues but then also sone mechanisn for 4
dealing with issues that turn out in some cases actually to 5
be construction related?
6 MR. MILHOLLIN:
dell, under option B, the 7
licensing board and the appeal board would have the power to 8
add any issue to the construction-related category tnat they 9
found would be appropriate for that proceeding.
10 COMMISSIONER BRADFORD:
So, in e ff ec t, they are 11 making an option A-type decision?
On an ed hoc basis, yes.-
13 We ll, to recapitulate, the delay we're talking 14 about -- option A, about three months ; opt. ion 3, s ix to.Il 15 months -- more than the present system.
If an LWA is 16 requested under the present s ys t em, option B may cause no 17 delay with respect to the present system as compared to the 13 present system if under the present system the acplicant 19 would not heve requested an LdA.
20 COMMISSIONER 3RADFORD:
Is " delay" the rignt word?
21 Or are you talking about --
22 MR. MILHOLLIN:
Excuse me.
Postponement of 23 construction, shall we say.
24 COMMISSIONER BRADFORD:
nell, extension of the 25 process, if your prediction works out; that is, the 1703 074
)30202 55 p v H EE 1
operating date may still be exactly the same.
2 MR. MILHOLLIN:
Yes.
de're talking about delay in 3
beginning cons truct ion.
4 COMMISSIONER BRADFORD:
d e.11, not even that if 5
your prediction is followed.
What you're talking about is 6
earlier filings and a process that may take 7
Yes, we're talking about S
extendinng.
9 COMMISSIONER 3RADFORD:
They would be extended out 10 over a long time, but not e ven, for example, take all that 11 many more man-hours.
Th ese issues are going to have to be 12 r esolve d.
13 COMMISSIONER HENDRIE:
Let's just understand that 14 these three months, six months, whatever are the a.ddi t io na l 15' times between initial filing and. agency permission to start 16 construction, with the understanding that that initial 17 filing presumably would slide back and forth to adjust to 18 whatever unexpected generating date would be.
19 CO MMISSIONER 3RADFORD:
My difficulty with the 20 word " delay" is that that does then call up the specter of 21 coal miners and barrels of oil and whatever else grade of 22
" horribles" people want to throw in, and that isn't 23 nece ssarily there.
24 MR.
.M I LHO LLI N:
So, it is three montns f or cption 25 A,
about six to.11 for option 3.
Again, if no LdA is 1703 075
>304?O3 56 pv HEE 1
requested under the present system, there would not ce 2
under option 8 probably any more time required than under 3
the present system.
4 COMMISSIONER HENDRlE:
Let's s ee.
Say a word or 5
two about that.
6 MR. MILHOLLIN:
We're forcing people to go for 7
LdAs basically under option B if they want to begin early.
S But in return for that, they get a decision on the merits, 9
whereas today they don't get a decision on the merits with 10 an LWA and they have to risk the money they are spending on 11 a decision which is not final.
12 CO MMISSIONER HENDRIE :
Haven't most appl icat io ns 13 been for an LWA in the last three or four years, or nas 14 the re been a change in that sort of more recently?
15 MR. MILHOLLIN:
My understanding is there has been 16 a change more recently.
At a certain period in the past, 17 not too distantly, LWAs were in vogue, and today they 18 aren't.
19 One of our group members may be able to speak to 20 that more in detail, if you would like.
21 MR. KARMAN:
To the best of our knowledge and 22 r s arch in this, Commissioner Hendrie, there has been a ee 23 falling-off in the requests for LWAs over the cast two or 24 three years.
25 COMMISSIONER HENDRIE:
Just in particular cecause 1703 076
230404 57 pv H EE I
people have been unwilling to start and then face delays?
2 MR. KARMAN2 It's hard to pin down exactly why 3
they are doing it, whether it also has to do with whether in 4
their estimate there is that dire need for starting 5
construction at that part ic ular time.
6 COMMISSIONER HENDRIE:
Yes, that's right.
7 MR. KARMAN:
But there was a time --
S COMMISSIONER HENDRIE:
It may be one form of one 9
manifestation of the going on out into the future of the 10 date when that generating increment would be needed.
If it 11 does move, you know, if we are the board and we have just 12 decided that indeed it is going to be another year later 13 than we thought, we sure don't want to go plow a lot of 14 money into parts for this project and have them all draw 15 interest for an extra year.
16 COMMISSIONER GILINSKY:
Does this have something 17 to do with the way the banks regard the worth of an L'IlA?
IS VR. MILHOLLIN:
The comment I rememoer was made by 19 the utility lawyer at our workshop, and his comment vas that 20 LdAs were considered too fragile a reed upon which to begin 21 work and it could also be a function of the growing 22
. militancy of state puolic service commissions and the 23 possibility of not being acle to get into the rate oe se 24 losses which night result from construction which would be 25 adjudged imprudent after the fact.
I think the risks are 1703 077
230405 '
58 pv HEE I
just going on generally.
2 COMMISSIONER HENDRIE :
Let's see.
If you decided 3
not to go for an LdA under the present system you would 4
struggle through to an initial decision on the CP and be 5
able to start t o da ys later, presumably?
6 MR. MILHOLLIN:
That's right.
7 CO MMISSIONER HENDRIE:
Under option B, you think 8
it wouldn't take any longer to start construction and the 9
reason is what -- the configuring of the licensing boards to 10 produce a decision on the construction-related items and the Ji hurrying of that to the appeals boards for a merits 12 decision?
13 MR. MILHOLLIN:
The a ssumption we would make and I 14 think you could make is that the first cart of the licensing to board hearing now really consists of two parts -- the LdA 16 parts and.ths safety parts -- and that if the applicant 17 doesn't go f or an LdA, he's going to have to wait for the 18 end of both of those parts to get an authorization to 19 begin.
20 Under option B, what would happen is when the 21 first part is comple ted, it goes up to the appeal board, and 22 the appeal board is reviewing on aopeal during the time the 23 licensing ooard is finishing up the decision on the CP.
24 Bas ica ll y, that's what happens now un de r e n LN A -- no.
25 excuse me, it is what happens under an LNA if it is 1703 078
30406 59 p v HEE 1
a ppealed t the appeal board begins working on it.
2 So, you assume the appeal board's decision would 3
come aoout the same time the licensing board is finished 4
with its CP decision.
5 COMMISSIONER HENDRIE:
Is it very clear thet that 6
is the case?
You somehow would have felt the appeal board 7
process would take longer than the completion of the hearing 8
on the balance of the issues before the lower board.
9 MR. MILHOLLIN:
de ll, I think it is again a 10 question of making predictions.
The Denton report indicated 11 people have gained an average of 10 months by getting LdAs.
12 So, from that, I suppose --
13.
CO MMISSIONER HENDRIE:
Yes, but does that have to 14 do with the length of time it takes the boards to process 15 the balance of the case, or does it have to do with the time 16 in which the staff is ready to come in for the balance of 17 the case?
My impression is it is the la tter.
13 MR. MILHOLLIN:
The appeal board estimates it 19 would take six to 10 months f or them to proce ss the LdA 20 issues.
21 COMMI SSIONER HENDRIi Just so.
And what'I sn 22 saying is the reason why that sounds like a match to the 23 licensing board time has got more to do with the rate at 24 which the staff is prepared to come into the nearing with 25 the balance of the case than it do e s t he f ac t that tnat six 1703 079
130E07 60 p v H EE I
to 10 months is an intrinsic time for licensing boards to 2
complete the case af ter an LWA.
A bet you a cookie if the 3
staff were ready to go through the whole schmear at the 4
b eginn ing, that the time f rom LdA initial decision of the 5
licensing board to CP, f ull CP initial dec is io n, would be 6
more like a couple of months.
7 MR. MILHOLLIN:
Maybe Carl could comment on that.
3 MR. KNIEL:
Yes, I would agree.
Dr. Hendrie has a 9
point there, that certainly part of the time that is 10 involved in adjudicating the remainder of the case af ter the
.11 LWA is time that is used by the staff in providing the 12 appropriate review and documentation studies.
So that time 13 is time used by the staff as well as by the board in 14 adjudic a ting.
MR. MILHOLLIN:
I recall you having said that in 15 16 the future we may have more controversy over the second part 17 of the application, the safety-issue part of the la a ppl ic a t io n, in light of Thr ee Alle Island.
19 MR. KNIEL:
I think it is really hard to project 20 which horse is going to win -- the appeal board review of 21 the. merits on the site-related issues, or the remainder of 22 the hearing.
Certainly, if you had a hearing for which 23 there was considerable discussion of the other issues and 24 many of the issues would be Three Mile Island-type issues 25 that could consume a substantial amount of tine, both from 1703 080
30dO8 61 pv HEE 1
the point of view of the staff's work and from the point of 2
view of the board's work on adjudication.
3 COMMISSIONER HENDRIE:
Yes.
But if we contemplate 4
the berefits of_this system to be to future n"> opplications 5
looking se veral years down the line, then it is not clear to 6
me, in fact,.that in each case five or 10 years from now, if 7
we are still processing new applications, that in each case 3
will we be fighting desperately over Three Mile 9
Island-related issues.
10 I would expect that long before that time those
.11 issues will have settled down into the standard practice and 12 review of the staff and everybody will know what is recuired 13 and there won't be any mor 3 hoorah about Thr ee M.il e 14 Island-related issues five years from now than there is now 15 over Appendix K.
You know, applicants know what they have 16 to do, and they do it.
17 So, I don't find that persuasive, and I think, in 18 f ac t, under option 3, it is not correct to make the 19 statement that where an LHA is not sought option 3 doesn't 20 provide any additional time in this period we are talking 21 about than the present s ysten.
I think, in fact, it is 22 something like the appeals board six to 10 months to get the 23 merits decision on the LWA out, minus something on tne order 24 of a couple of montns, two or thr ee, wha te ve r yo u lik e, for 25 the licensing board to have completed the rest of the case 1703.081
230409 62 p v H EE I
at the ir level.
I don't know r"at that inc re me r.t is a 2
controlling sort of consideration, but I rea lly don't think 3
it is a zero in that case.
4 MR. MI LHOLL I N:
I gue ss we have pa ssed our 5
allotted time this morning.
I would be willing to talk 6
about the relationship cetween this and the TMI pause, if 7
you would like.
It is up to you.
3 COMMISSIONER HENDRIE:
We cancalled the second 9
meeting that had been scheduled for this morning.
10 COMMISSIONER GILINSKY:
I think it's a usef ul 11 discussion.
12 COMMISSIONER HENDRIE:
I think there are some more 13 things that ought to be added here, and I propose we go on.
14 MR. MILHOLLI,N:
dell, I was just going through my 15 statement about additional time required f or the various 16 options, and I made it to option 3.
17 Option C probably will require 10 or 12 months 13 more tine as compared to the present s ys ten, and possibly 19 more than 10 or 12 months if you compare it to the case 20 where an LWA is requested under the present system.
21 I was anticipating a question about the relations 22 between this report and TMI, so I will ask.,yself the 23 question and then I will proceed to answer it.
24 The relation between this and the T 4I pause, the 25 report doesn't deal with circumstances in which the validity 1703 082
>30510 63 p v H EE 1
of the present regulations is in question.
As I understand 2
the special procedures adopted as a result of TMI, that 3
i ss ue, the adequacy of the present regulations, was the main 4
reason for adopting those procedures.
So, I think we 5
a ssumed --
6 MR. BICKNIT:
That was certainly one of the 7
reasons.
8 MR. MILHOLLIN:
Very well.
I think we assume in 9
our study that the regulations are going to be adequa te and 10 the question will be limited to whether they have been
.11 complied with, whether the record is adequate under the 12 regulations to authorize the action which is being 13 authorized.
14 Second, in the present arrangsment, you have yet 15 cases in all dif ferent stages.
You have, as I understand 16 it, some operating licenses.
I would suggest our report is 17 limited to the problems of construction, and the options are 18 open to you for dealing with construction that wouldn't be 19 open to you probably in dealing with a case where you have 20 an operating license question. before you.
21 Option C doesn't look very good if you're t alking 22 about an operating license.
You probably would not want to 23 make somebody wait e year to nave a full review on the 24 merits with the plant sitt.ing there waiting to operate.
At 25 least that decision would be a different decision from the 1703 083
330411 64 pv HEE I
decision you made if the issue was whether you could begin 2
construction.
3 So, I am just pointing out that the problem that 4
you have before you with respect to the pause is a di ff erent 5
problem than the problem presented by the report.
6 That comes to the end of my presentation.
I might 7
say that I could recommend a next step that the commission 8
might take with respect to this report.
9 MR. BICKWIT Excuse me.
Just one cuest ion.
On 10 option C, when you talk about 10 to 12 months, I guess that J1 a ssumes that the commission does not stay construction 12 during review, during its own review?
13 MR. MILHOLLIN:
Y es,.that's co rre c t.
If, under 14 any of the options, the commission exercises -- decides to 15 conduct a review on the merits, then the conmiss ion's time 16 would be added.
I might say that at that point the 17 commission could decide whether it wanted to stay 18 cons trustion pending its review or not.
So, the commission 19 w uld control the additional time which would be nece ssary o
20 on a cas e-by-cas e basis.
21 I would suggest as a next step that you might 22 decide whether it would be fruitful to put out a notice of 23 proposed rulemaking containing the three options.
Tnat 24 would be one possibility which you could adopt.
That would 25 give you the ad/3ntage of having comments on all three 1703 084
230412 ~
65 p v HEE I
options.
The other possibility would be for you to make a 2
decision and adopt one of them or some fourth option.
3 COVMISSIONER KENNEDY:
We ll, the re is inherently a 4
fourth option, which is :
no change.
5-MR.
'A I LHO LLI N:
That's right.
Adopt one of the 6
three options -- I might say we presented the three options 7
to you because we thought they were the most fruitful means 3
o f changing the s ystem, and we also included a discussion of 9
the system as we presently have it with its advantages and 10 disadvantages.
And, of course, that is a fourth option.
.11 So, you could either decide to adopt one of these 12 options and put out a notice of proposed rulemaking alth 13 that option in it, or you could decide that. you would like 14 to put out a notice or proposed rulemaking with all of the 15 options in it.
Pe rhaps it might be easier to dec.ide to put 16 out a notice of proposed rulemakihg with all of the options 17 in it.
If you decided to do that, then when the comments 13 come back the matter could be submitted to you f or a 19 decision.
I would be willing to work with the general 20 counsel's of fice to the end of getting out a notice or 21 whatever.
22 Fina ll y, I would like to express my appreciation 23 for the support we received from the comm iss io n o f f ic es 24 which we asked to a ssist us, especially the secretary's 25 office.
And on my own behalf, I would like to say that the 1703 085
330413 '
66 p v H EE I
commission employees who were assigned to the group worked 2
very hard on the committee tasks, even though it was often 3
necessary for them to do extra work to fit the committee's 4
tasks in with their ordinary work assignments.
5 COMMISSIONER GILINSKY:
.i e ll, I would like to 6
thank everybody who participated in this f or doing wnat 7
appears to be a very thorough job.
And I would like to 3
thank you for heading this up and leading the effort.
9 This is something that I want to look at very 10 carefully, and I am sure the other conmissioners will want 11 to.
12 I wonder if one of the authors of this other 13 memorandum would like to say a f ew words that they have not 14 had a chance to say up till now.
15 DR. CHO I think our discussion has basica.lly
~
16 covered the points.
I just want to say that I think our 17 basic point of departure with the rest of the commi.tt ee 13 members is the question of public perception and what needs 19 to be done to address the particular problems that we s ee of 20 perception.
And I think we s a id -- I ho p e the y ar e i n o ur 21 supplenental views -- but our basic view is that option A, 22 where you allow the identification of those issues wnich 23 ought to ce decided before you allow construction on the 24 merits adequately takes care of that problem.
25 It was our thought that the public perception was 1703 086
230414 67 p v H EE 1
tne only significant thing whien operated against the 2
present system and the advantages and cenefits, I think, 3
that flow from the present syste9.
4 COMMISS!a:JER ME.'iDRIE:
I would like to add my 5
thanks to Gary and his hard-working group.
I think it is an 6
excellent coverage of One subject.
7 The questions of where to go f rom here. I think.
3 certainly a possioility would ce to go out witn a notice of 9
rulemaking and list the options.
I susoect you could put 10 the fourth option in, which is to leave it the way it is, 11 Inst would cover the ground.
It postpones the commission's 12 decision for some time, which would be, I gue ss, se veral 13 months, wnile still having in process a formal notice to 14 everybody that we were thinking about ma',oe doing something 15 in this line and what the various possibilities were.
~
16 COMMISSIONER GILINSKY:
de ll, we could not, in any 17 case, take final action for some time.
I think there is 13 some advantage to giving those outside the agency several 19 options to comment on and chcose among.
20 COMMISSIO;lER HENDRIE:
Between that and having to 21 cone ourselves to 'a particular one propo5ed rule or, 22 conversely, to the decision not to propose any rule.
23 COMMISSIO:lER 3RADFORD:
To what extent, in the 24
,ouclic comment proce ss, would we be just retreading the 25 ground that you all went through?
Wasn't that des igned to 1703 087
23011'5 68 pv HEE 1
elicit as much public response as at least you called fo rth ?
2 MR. MI LHOLLIN:
That's a good point.
I think we 3
did hear f rom just about everybody who had an informed 4
opinion on the subject, and we also got a response to a 5
Federal Register notice we put out.
de got an extens ive 6
comments -- some of them read like briefs -- from people who 7
we re in te res ted.
So, I would be surprised if you get much 3
more puolic comment than we already have in our records.
9 COMMISSIONER 3RADFORD:
Did those comments group 10 themselves naturally around these options?
11 MR. MI LHOLLIN:
We grouped them ourselves in the 12 a pp e nd ix.
So, if you ar ourageous, you can look in the
,\\
13 appendix and find the options or find the comments listed by 14 option.
That is in the appendix.
So, you can get the 15 flavor of the responses to the Feder.a1 Register notice in 15 the appendix.
17 And also I tried tt set out the -- the group has 13 tried to set out the responses to the workshop in the body 19 of the report.
So, they are certainly accessible in the 20 report.
21 MR. FRYE:
May I, Gary, just make one 22 observation.
I am not sure that either option A or option 3 23 had de veloped soon enough for it to be presented to the 24 public when we went out f or public comments.
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COMMISSIONER HENDRIE:
I assumed that was the 2
case.
3 MR. MILHOLLIN:
That is a valid point.
4 COMMISSIONER GILINSKY:
Well, we have to go out 5
with a proposed rulemaking, in any case.
And the question 6
is whether one ought to pick one of these options as the 7
commission's base case or not.
I guess I would be inclined 3
to leave the options in.
9 COMMISSIONER HENDRIE:
It makes for an easier 10 decision at this point, and Isss deliberation.
If we're going to select one, we're clearly going to have to have 12 some discussion, and it could very well be extended and 13 drafts circulated.
14 COMMISSIONER GILINSKY:
I don't know if the 15 comments would have to repeat everything that has been said 16 before.
They could focus specifically on these options.
17 CO MMISSIONER KENNEDY:
They would f ocus on the IS differences among these options.
19 MR. MILHOLLIN:
John Frye's comment is a good 20 one.
You could focus on the differences in the options, and 21 I think also the mechanical methods by which the options 22 would operate.
23 CO MMISSIONER GILINSKY:
Now we've got something 24 fairly. specific.,
25 CO MMISSIONER 3RADFORD:
de ll, in fact, the notice 1703 089
130502 70 p v HEE 1
itself could discourage people from making comments already 2
made by just telling them to make reference to earlier 3
submissions.
4 COMNISSIONER GILINSKY What about asking the 5
general counsel to draw up such a proposed notice.
6 COMMISSIONER KEINEDY:
I would be for it.
7 CO MMISSIONER HENDRIE I would be glad to support 8
something like that.
And I think if the counsel could grab I
y 9
Professor Milhollin.before he rethinks the thing and becomes s
10 less amiable to providing support.
11 COMMISSIONER GILINSKY:
Okay.
12 COMMISSIONER HENDRIE:
Do you want a waving of 13 hands to go ahead?
14 MR. BICKWIT:
I think I got the me.ssage.
15 CohMISSIONER GILINSKY:
We.ll, 'thank yo u, ag ain.
16 Thanks, Gary, and.the group.
17 We don't always take advice so readily.
Thank 18 you.
19 (Whereupon, at 11 :20 a.m., the meeting was 20 adjourned.)
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