ML19261E450

Transcript of 790727 Public Meeting in Washington,Dc on Technical Issues Re Restart of TMI-1.Pp 1-94

ML19261E450
Person / Time
Site:	Crane
Issue date:	07/27/1979
From:	Gilinsky V, Hendrie J, Kennedy R NRC COMMISSION (OCM)
To:
References
REF-10CFR9.7 NUDOCS 7908090579
Download: ML19261E450 (95)

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f., .../ 1 {r199 9 DISCLADIER This is an tinofficial transcript of a meeting of the United States Nuclear Regulatory Co==ission held on Friday, 27 July 1979 in the Commissions's offices at 1717 E Street, N.W., Washington, D. C. The

• M s transcript meeting was open to public attendance and observatica has not,been reviewed, corrected, or edited, and it may contain

( inaccurac3.es. . The transcript is intended s'elely for general informational purposes. As provided by 10 CFR 9.103, it is not part of the formal or informal rec 0rd of decision of che matters discussed. Expressions of opinion in this transcript do not necessarily reflect final deter.ninations or beliefs. No pleading or other paper =ay be filed with the Cccsission in any proceeding as the result of or addressed to any statement or argument concained herein, except as the Ccemission =ay authorize. e e ao. E

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l 2 { l i i UNITED STATES OF AMERICA f6199 1:I I f NUCLEAR REGULATORY COMMISSION l 2l PUBLIC MEETING O 3'i DISCUSSION OF TECHNICAL ISSUES IN RESTART OF TMI-l 4* i 5' l l Rocm 1130 i 6 1717 E Street, N. W. I 7 Washington, D. C. i 3; Friday, 2 7 July 19 79 l 9, The Con:missien met, pursuant to notice, at 9:50 a.m. I 10 ; 3EFORE: 11 l DR. JCSEPE M. EENDRIE, Chairman i 12 ; VICTOR GILINSKY, Commj.ssioner l ( I ,,13 RICHARD T. KENNEDY, Commissioner i i 14 PETER A. BRADFORD, Commissioner i 15 ji JOHN F. AEEARNE, Commissioner j i l 6 16 ; ALSO PRESENT: 17; Messrs. Bickwit, Ostrach, Case, Vollmer, and Chilk. 13 ' i 19 ' t l 20 i 21 ! il 22 :I i 23 ! 24 ]"iE \\k sc. s.aerm a.oo, en. inc. - 25 : i i i

3 1 b90'1013 ,qc 1 PR0CEEDINGS (9 4 50 a.m. ) 2 3 CHAIRMAN HENDRIE: The next item we turn to is a O 4 continuation of. the discussion of the order, further order, 5 in the matter of Three M.ile Island Unit 1. Let's see. The 6 General Counsel's office distriouted late yesterday a 7 memorandum with some options and recommended words to go S with the options for several of the items on the lis: of 9 matters *..t we need to agree upon for the 30! order and 10 kindly pro. ided a list of matters remaining on the las: page .11 of the memorandum. And he recommends that we look at these 12 recommendations, and we also have the memo from the 13 Counsel's of fice of July 25, in which ne packaged current la draf t language on the order together and suggested we work 15. from that as a base draft as we get started. Do you, Steve, 16 want to march us through your production of last night? 17 MR. SICKWIT: The first section of the IS memorandum recapitulates some of the discussion thet we 19 had on Wedn e s da y. I'd like to add one mcdification to 20 that. We talked about a required statuory requirement for 21 a hearing on the o rder. The way that's phrased on page 22 ene could be construed as overly broad. The re is a 23 requirement on the order under normal cir:umstances. 24 Under a typic al o rder, tha t s t etutcry 25 requirement, in our view, would no: e:< tend f or wan: Of D *

• lD *D'T ]l@AL 2210 144 Al eeM e

D D if401 02 4 mgc I a better concept, toughening up the order, making more stringent the orcer. ,,) ( 3 On a typical orcer, you woulo provice that certain 4 things had to be cone and the s ta tu tory requirement which 5 wcule allow the licensee anc other intarested parties to 6 ~ ceme in and contest the order would allow a trimming back of 7 the orcer and pernaps a questioning of procecural legal e questions associated with the order. I t would not allow, in 9 the typical situa tion, an intervenor to come in and say that 10 a whole lot of o tner things ought to be cene in this order. 11 However, the kinc of order :nat you appear to be 12 moving toward here woulc have as an issue in here not only 13 the nec e ssity of the. actions required, but the sufficiency ( 11 to the actions required. Under those circumstances, the 15 s:2tu cry rignt which is in the intervenor to ccme into the lo hearing would extend to all the issues in :ne hearing. Anc 17 One of cno se issues woulo 'oe the sufficiency of the actions 1. requireo. 17 Therefore, One sta:utory right, in :nis instan:s, 20 woulc extend to applications that the order should ce made' 21 more stringent. 22 In f urtner elacera tion of :he in:E ductory 23 s e:: :..s, : Jus: think.:s helpful for :he discussion :: :. y 2-

.c e e.: in min:, as cifficul; as i: may ce, :ne i ssu e s o f 25 wnat are the procecure s we're talking accut with respec: ::

22i3 145

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> l ;2 Cl 03 5 t =g: I contesting :he order? Wna: are the procecures we're talking 2 about which are required by the terms of the order? What 3 are :he procecures we're talking about with respect to the 4 listing of the immediate effectiveness of :he order? And to 5 try to keep those three kincs of questions separate. 6 What we sugge st with re spec to review proce sa is 7 tha t ba sec -- o CHAIRMAN HEf0RIE: I'm so rry. I was drifting, and 9 it's still early. I apologize. Would you just say the 10 three again? Il .VR. B ICDIITs Sure. What procecures are required 12 to contest the order? I.e, is there to be a hearing on the ~ ( 13, ordar which will evalua e t ha order anc lead to a changing l 'a of that orcer? That's question one. 15 Cuestion two is t what procedures are required 16 under One tar:s of One oroer? What prececures does the 17 order mancate pursuant to its terms, which must be is accomplished in fulfill:en: of :ne requirements of :ne ly croer? I.e., if :here is Oc be a finding cf the Cc =ission 20 uncer the order that it is sa tisfisc, that certain things 21 have been cone, what procedures are requirec cy the 22 Concission prior to reaching that decisi:n? 23 ..n d

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nird se: :f issues is '.ena; procedures are 24 requirec wi.' re s.:e c : ::

..e listing of :ne immecie:e 25 effec:iveness of One orcer?

All of nose procecures can be 2210 146

D7*D D'T [ Lo bA.d).1 L= !?9 01 04 6 rage I separate and cistinct. And I think by way of background, 2 i t's im portan t to note that the first, the an sw e r to the J 3 tics que stion come s f ro: che statute. 4 The answer cc the second and the third question 5 doe s not. And there is total f reedom with respect to the o seconc and enirc, with the one caveat tnat wi:n respect ;o 7 the third, you will have ;o base any finding on whether to 6 list immeciate eff ectivene ss on the suostantitve 9 ce:ermination of whether une public health, safety, and 10 in ta re s require tha t the o rder be immediately e f f ec tiv,e. 11 Wha t we ha ve sugge sted wi th respect to review 12 process is that we allow the s:atutorily required review 13 proce ss to run its course. But, tha: we do not insist on 1% its running its course prior to the restart of the f acility, 15 that we allow the listing of immediate effectiveness to take 16 place prior to the running of tne courts of those IT prccedures, and that it Ls to be based on a rather short and 15 expecited review of the record based en motians o come in 19 i==ediately af ter certification by the staff tha: the 2C acticns requirec, if such actions are requirec, nave been 21 ccapletec. 22 And tha t the Commission move to evaluate the 23 Scarc's fincings anc :ne staf f's certifica icn as a basis 24 far iisting :he inmedia:e eff ectivene ss af :ne crcer. 2.n c 25 t ha - tha; is a diff erent judgement, One jucgemen; on listing 22i0 147

=. :..= =---. ..- =-- ... =.. '3' = om d D D f t JJ o .s s a l," C l 05 7 mgc i tmmedia:a effectiveness is a cifferent judgement from the 2 judgement 1: will ul:ima:ely have to make with re spec to ys 3 its final decision on the orcer, i.e. it's final decision on 4 the evaluation of the order. 5 We believe a substantial period of time is o po ssible, say, depencing en certain f actors. One of tho se 7 f actors is, when Ls the ccmpletion of the action required by 8 the Soard likely to take place. If it's likely to take 9 place and the staff is likely to certif y it has taken place 10 f ar on cown the line af ter the conclusion of the hearing by 11 the Board and the writing of its initial decision, : hen,1:'s 12 highly ur.likely there will be time savings. 13 .Ano ther f actor to be considered ist Is there 14 likely to be an amendment requiring a hearing? An amendment 15 involving significan: hazards, considera:icns? If there is 16 to be an amencment anc a hearing is to be s atutorily 17 required, i; is possible that : hat can be considered a is separa te croc eecing. That coulc terminate or leac :o :he iv

e.mina:icn of :nis proceeding.

Su: mos: likely, I would 20 a ssume it would get wra,cpec u o in thi s very,orocecure, and 21 under : hose circumstances, :he finding of the amendment 22 woulc have ;o be made by :ne Commission af ter fu.1 review. 23 Anc you woulc save no time a: all by this crocaccre. 24 Ycu would have to go :hrough ,.e full review 25 process. So, wi:n : nose qualifications, we woulcn' t 27_ i j i48

D " l0 "D ~ 9 ' {(M M .M o r J 199,01 06 8 mgc I CHAIRMAN HENDRIE It's not so clear that an 2 amendment will ce needed. -S 3 MR. SICKWIT: Tha t's true. 4 CHAIRMAN HENDRIE: It ha sn't a pparently in other 5 cases. 6 MR. SICXXIT: I put this question to Ed, and his 7 answer is consistent with each answer, each previous answer, a but it's always the same. The answer is: "I don't know." 9 CHAIRMAN 'iENORIE: Cn the subject of review which 10 we heard a little bit about the other day then, the 11 'recommencation is on page five of :he memo. Ano it's simply 12 a note that if there is an initial decision which favors the 13 restart and so on and so on, the Commission will en tertain Il motions. Now then, Pe ter, that so und s -- a t least it has 15 the wor: "mo: ions" in it. So, it, to :na: degree, sounds lo somewhat closer to what you were saying the o ther cay. 17 COMMISS IONER BRADFORD: I think : hat is w na : I wa s 15 saying, out I expect that's your prerega:ive to Jucge oe:ter 19 than mine. I thin.s this is very close to wha t I was saying 20 the other cay. Let me just be sure, t houg h, that the 21 phrase, " thi s orde r" -- tha t the recommendation, when i t's 22 outlined on page three or thereabou s, is a little cieerer 23

ran the language here -- : hat the phrase, "this order" 24 ref ers to the orcer in wnich :nis paragrapa ::u.: ce 25 contained and no: :he order of the Licensing Boarc.

The 22io 149

Oh s al M 01 07 9 29: I immecia te ef f ec tivene ss rule is, in fact, not in effect. 2 CHAIRMAN HENDRIE: Where it says: "on whether ,.s 3 this orcer sna11 remain immediately eff ective"? 4 COMMISSIGNER SR ADFORD: Yes. 5 CHAIRMAN HENDRIE: All you're talking accu; there 6 is the -- 7 COMMISSIGNER BRADFORD: In the order we're talking 6 about today. 9 MR. SICKWIT: The order in which this language was 10 written. 11 CHAIR;4AN HENDRIE: Was just tne snutdown? 12 MR. BICKWIT: The order we're discu ssing here on 13 the table. s 14 CHAIRMAN HENDSIE: Furthe rmo re, it won't apply to 15 the whole thing, would it? Just to the shutdown portion? Io MR. SIC:GTIT: That's true. It says, 17 eff ec tivene ss - "immediate eff ectiveness~ of this order or la provisions of :ni s orce r". What is covicusly mean; is a 19 shu cown. 20 CHAIRy!.N HENDRIE: Could it exten; to "t mediately 21 ef f ec tive", if we make the long term upgrades immediately 22 effective? Is the re any -- do ycu n eed any f urther 23 Language 1 24 MR..SICKNIT: You're alweys free to lis: incediate 25 e ff ec tivene ss. Tha t's no wnat we hac in mind he re, bu t 22\\L \\50

m 190s 01 06 10 mgc I there's no reason that we couldn't do that. 2 COMMISSIONER GILINSKY: Wouldn't we entertain a 3 motion in any case, whether or not you had this language in 4 the order? 5 MR. B IC KW IT: Yes. 6 COMMISSIONER GILINSKY: So, what i s thi s a ll 7 about? 8 MR. BICKNIT: It invites them. 9 COMMISSIONER AHEARNE: Could I ask whe ther there 10 is an option of the Soard? I would guess it would reach one 11 of two conclusions. It would either reach a conclusion that 12 it has to stay down, and it might be until additional things 13 are done, or it would say it can go up, given the two things s 14 are done, if it's going to stay. 15 COMMISSIONER,<ENNEDY: Tnose are the same things. 16 COMMISSIONER AMEARNE: Well, perhaps, it depenos 17 u pon the items. Now, if it reaches the conclusion 1 's 15 going to stay down, tha t's the condition that it's in, so 1 : 19 doesn't make much difference. I gue ss we go througn our 20 normal review process. If it reaches the conclusions that 21 it's going to go up, is it possible to say that t ha t 22 immediate ef f ectivene ss of that acti:n woulc be stayed for 23 3C cays during wr.i:n : ire there sculd be this !O dsy, 7 cay 24 option :nat you cu line ners, whi:P woul: :nen give us :a: 25 w ee'<s to review tha:? 2211 151

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' l ~ \\I f I w o ju oJ,S. La I c^- O ! 09 11 mgc I MR. SICKWIT: Yes. You can do tha :. The se time 2 periods are jus: .s 3 CHAIRMAN HENDRIE: Tha t is, make the Soard 4 decision immediately eff ective, but with a 30 day -- some 5 numcer of days af ter the initial decision? 6 COMMISSIONER AHEARNE: Right. 7 COMMISSIONER KENNEDY: Unless the Commission were S to take action to stay 1: further. 9 COMMISSIONER AHEARNE: Yes. 10 MR. SICK? LIT: That pushes much harder in the 11 direction of bringing it up than this language. 12 CHAIRMAN HENCRIE: ?! hat would be a ress:nable 13 time? ~ ~ 14 COMMISSIONER KENNEDY: At least it pushes cuch 15 harder :o bring the Cc: mission to. a decision in this ma tter 16 than this language. I7 v J L,,.. --.. --

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.( = _ ..a. 4as_.e t cc 5.s.ca .can =. o. IS intantion. 19 CHAIRMAN HENCRIE: What would you wan t a s a tias ? 20 COMMISSIONER AHEARNE: Well, if his aoproach -- I 21 have no f eeling at all fo r how long 1: would 'ce acpropriate, 22 t he inicial period. The Gene ral Cc un s e l..ac sugges:ec. 23 cays anc 7 cays, wnicn woulc be -- wnica voul: :nen say tha: 2-

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Of 25 the inf or=ation in f ront of us. 2,c 'i - 15.2

.a 199_ 01 10 12 rage i And so therefore, two weeks seems Oc be a 2 rea sonaole time to do t.at That's why I said 30 days. 3 CHAIE'4AN dE' DR IE: Seems to me, if I can bring d 4 myself to go with page five, I could certainly go with you. 5 o ther comments? o CO'TM IS5 IONER GI LINSKY : I guess I missed tne 7 7 days. Where does tha t come f rom? e COMMISSIONER AHEARNE: Tha 's on the bottom of 9 page three. 10 CHAIRMAN HENDRIE: That's where it's being discussec. T hr ee. You have a problem on mailing times, so 12 the Commission would not end up having 30 minus 17. ~ 13 MR. SICKWIT: Is it 30 days f rom staff 14 certification or f rom the Board? 15 COMMISSIONER AMEARNE: 'dha:? Io MR. BICKNIT: 30 cays f rom the Board issuance or 17 f rom the staf f certifica:Lon, I think. IS CHAIRMAN HENDRIE: I think ahichever is la:er, 19 because they're bo th a ssen;ial. 2C MR. EICKNIT: I would a ssume the s:aff 21 certification. COMMISSIONER AMEARNE: It's 30 days, I :nougn:, 22 23 f r:m the ;cint ef when y:e s:ar:ec y:ur  ::ys. 24 MR. 3ICKWIT: O r., Okcy. lle star:ec cur i: 22.3 a 25 the staf f ce r tif ica ti:n. 22i; 153

D)' D D rg-w W 'j e h_S 3 m 21' 0 1 11 13 =gc I CHAIRMAN HENDRIE: fes. 2 COMMI 5SIONER KENNEDY : The way your language on 3 page five is written, the cre sumption is that the staff 4 certification follows the Board's decision. 5 MR. B ICK'MIT: Yes, whichever is later. 6 COMMISSI0t!Eh AHEARNE: Yes. 7 MR. SICKNIT: I think it almost cer ainly would a have to. S:a f f i s -- we ll, I guess it's conceivable staff 9 could star certifying that certain things had been done, IC even before the Board had insisted that they be done. 11 COMMISSIONER AHEARNE: I:'s whenever your 10 days 12 s tar ted. I was "asing it on - you said it would take IC 13 days to do this, 7 days f ollowing. Then I was looking at ( 14 giving us two weeks. 15 MR. CASE: 10 days starts. Then, af ter you get 16 your motion in, 10 cays. Inen you have to have a reply 17 within 7, but it's presu= ably 10 plus mailing time that you Ib acd these 7 to, I think, although tha t's more your busine ss 19 than mine. 20 So that would take three or four -- una; you 21 normally allow -- tnree or four days., some tning like that, 22 five for the rails these cays. 23 So that five woulc also come out of :ne 24 C ::issioners' cine. 25 COMMISSIONER GNNECY: Five twice. 22iu 154

t1 5 'D 4 3 ,()0 1 F D 199,0! 12 la age I CD.'.tMISS IO.'IER Gr LINSKY : Seems lika we're getting 2 ocwn into the fine structure. e-3 CHAIRMAN HENORIE: Yes. Yes. 4 MR. OSTR ACH: I t must be received between 10 days, 5 it must be received within 7 days. 6 COMMISSICMER AMEARNE: Perhaps your office can 7 s ink to t ha t level and work out those details. 5 CHAlRMAN HENDRIE Rise to it. 9 COMMISSIONER GILINSKY: Could I asx you, now do 10 you distinguish between appellate review of the merits of 11 the Board's cecision and a ce:armination of the public 12 health anc saf ety or interes; no longer requires that this 13 order remain in effect?,At least 1:'s an immediate , id eff ac tivene ss; no longer remains in force. 15 Woulcn' you have :o reacn the merits :o maks tha t 16 decision? 17 MR. BICKWIT: No. There are ciff eren: s:ancarcs. 15 ,;nen you cecide wne:her to make an orcer 1.cecia:aly Iv eff90:ive, ycu are making a differen: ce:ision frer y:ur 20 final cecision on whether tha; order is any gcod. You are 21 making a cecision that you are so worried accu: 22

1rcumstances :na; ycu want to bring that plant d:x-vhi_a 23 jou are de: icing..:.e:ner the rder is inj q:ct.

2-Tc.e as: is 2.f rert : a s :: :he ;ra:iss 25 celineation of :he cifferentees. It's diffi:ul: :o 22is 155

i i "' C l 13 15 mg: 1 quantify, bu: it's clear to all that it's a cifferen: task. 2 COMMISSI0tlE.9 KEtiNEDY: Tna 's true in making 3 it - I can understand it when you're making it ir. mediately 4 effectiie. Yes, I have shared Corraissioner Gilinsky's 5 question, which I think ist how co you diff erentie e when 6 you are lif ting the.irmediate eff ectiveness? When you are 7 then saying it can restart? [ 6 CHAIRMAN HE;lORIE: All you have to do is ccme to e / v place where you say " Gee, I'm no sitting uo ell night by 10 the telephone anymore expecting disasteri I've concluded iI that its I2 13 i4 !5 Io I7 's 1y 20 2I 22 2- <,..C 7 a 221a 156

199.02.1 16 .gsh I CokNISSIONER 3RADFORD: I asked at the last meeting 2 what the standards were that one would apoly and. I think Len 3 said, rightly, that that was something we would have to decide 4 either at the time 4e have to the review or sometime before 5 then. 6 But I think your response then was the re isn't a 7 elear standard for this decision in this situation beyond S what we thought public health and safety required. 9 It's not a petroleum-type problem. 10 COMNISSIONER GILINSKY: It seems to me in our J1 previous order we agreed that we would, ourselves, make the 12 final decision the way that plan operstes. 13 In e ff ect, we're deciding whether that's adequate 14 protection f or.the public. And it s eems to me that you've got ~ 15 to reach the merits of the case to do that. 16 I'm all for do ing it expeditiously and e ff eciently. 17 I don't really see why it ougnt to taka four months. 13 But I don't think that you can separate that question 19 from the basic health and. saf e ty issues in the case. Or the 20 questions of public interest. 21 MR. BICKWIT: You're going to be thinking of healta 22 and safety. 23

First, in responsa to your question, I want to say 24 that I think the standard is the same whather you decide to 25 impose 1 mediate e f f ectivene ss and lif: immediate effe::iveness

] m 2210 157

17 i 99 : 0 2. 2 w gsh l I don't think it's a different question. 2 Then, in response to yours, I would say that, 3 obviously, public health and setety are relevant. But it is 4 a diff eren; standard. 5 COMMISSIONER KEbNEDY: Is it fair to say that in the 6 .first instance -- that is,. the lif ting of the L.mme dia t e 7 e ff ectivene ss.that is, allowing it to restart while the 8 question remains under consideration -- is a provisional 9 decision based upon one's initial perception that, in fact, 10 public health and saf ety can be adequately protected? .11 MR. BICKWIT* That's right. 12 COMMISSIONER KENNEDY: While the broader questions 13 for a permanent arrangement can continue to ce litigated? I4 MR. BICKWIT: Yes. ~ s 15 CHAIRMAN HENDRIE: There are also a number of 16 elements in this order and that will come out eventually in 17 a board decision and in a connission decision, which are of 18 a longer term character. 19 Co.VMISSIONER GILIN5KY: I appreciate that. And I 20 wouldn't say that we'd have to look at every last item in 21 the board's decision and there may be a atmoer of questions 22 which the commission would still have to review. 23 .Sut you wouldn't regard it as really very importan-24 on whether the plants Operate or not. But it seems t: e 25 you have to make a casi: statutory finding and wni:n as have 22iJ l58

p' o m g-o 199.02.3 13 a oo o ,J. 2 .gsh I taken up upon ourselves to make. 2 And it may be that having followed the case, having 3 confidence in a board, you may f eel that the moment they 4 make their decision, you've got -- you're able to make y0ur 5 own finding. 6 But I. think you do have to make it on the basis 7 of the fundamental -- evaluatien.of the f undamental s af ety 8 questions in that proceeding. 9 COMNISSIONER KE.NNEDY: Sut ycu can make that 10 provisionally, subject to a further review on your part if J1 litigation continues. 12 C0 9NISSIONER GILINSKY: If you have sufficien: 13 co nf idenca. 14 COMMLSSIO'NER KENNEDY: Yes. 15

• CHAIRMAN HENDRIE: I believe that we have $uilt in 16 for at least a portion of the things that are considared in 17 this proceeding -- is it an SG-day, do I recall correctly, 18 time for all the parties to provide briefs?

And,then the 19 commission can censider those. cefore it makes its findings. 20 50 it's a fairly extended time built in before a 21 final order of the commission could issue, lifting immediate 22 e ffect.iveness of a shutdown, a judgment which you Obviously 23 have to base on some level of assessment of the health and 24 safety as a way to avoid being tied to an exter.ded period. 25 Jonn, I like your 30 days. Can I pre.::se it and see , i... 159 ~ c

19 199,02.4 gsh I where the weight o. sentiment lies up and down the table? 2 Co.kNESSIONER GILINSKY: Could we have that proposal 3 again? A CHAIRMAN HENDRIE: Could ycu outline it again? 5 COMNISSI0 DER AHEARNE: You're proposing it? 6 CHAIRMAN HENDRIE: Well, let's see. 7 COMMISSIONER GILINSKY: Another sleepy commissioner. S COMMISSIONER AHEARNE: dhat I was doing was accepting 9 Len's 10 and 7 days and saying that the decision of the board, 10 . if the board were to reach a conclusion to allow restart, J1 that any immediata e ffectiveness o f that could be delayed for 12 30 days. And then, the appropriate words, you knew, causel 13 could construct. ?.nd whether it's 30 or 30 plus mailing 14 times is something ne would have to work on. 15 Sut the.ssue would then ce that we would go through 16 this process he's identified. What's the right word 17 petition or make a motion, whatever it is, to us to overturn IS that immedia ta e f f ectiveness. 19 CokNIS5IONER GILINSXY: dait a minute. The 20 immediate ef fectiveness is of the shutdown order or of the 21 board order. 22 CHAIRMAN HENDRIE: A better way to phrase it wculd 23 be -- 24 CohMI55!0NER AREARNE: The rencval. 25 CHAIR.U AN HE;iDRIE: The imme diate e ff ec t ive ne ss o f hh b 22iu 160

199.02.5 20 gsh I this order meaning. this order, to put it very simply. 2 COMMISSIONER KE.44EDY: Mhat it means is a board 3 action that would suggast :nat restart was authorized, would 4 not be eff ective for 30 days plus something. 5 CHAIRMAN HENDRIE: Would become e ff ective in 30 days 6 unless -- 7 COMMISSIONER KENNEDY: Unl a ss th e c o mm iss ier. acted. 3 CONNISSIONER GILINSKY: It s eems to me -- 9 CHIIRMAN HENDRIE: Furthermore, it has to be phrased 10 to make clear that the decislon does not constitute final JI commission order and finding on the case otherwise. 12 CO NNISSIONER GILINSKY: That seems to me to 13 contradict what essentially we agreed to in the previous 14 order. s 15 COMMISSIONER AHEARNE: Except, no, because that 16 would have --- it would come to us. And it essentially gives 17 us that peried of time. 18 COMMLSSIONER GILINSKY: Where you're saying barring 19 commission action, such an order on tne board's part would 20 become e ffective. 21 C09NESSIONER AMEARNE: The words that "ba rring 22 commission action" Lo disapprove. 23 CO MMISSIONER GILINSKY: Right. Sut we have said 24 that. 25 CO MM LSSIONER AHEARNE : <th ic h is ecuivalent, chougn, 22: 161

D * * ]D 0 ' 9 ' }k f o m d0. J 21 es es m 199.02.6 22 .gsh I to our approving it. 2 COMMISSIONER GILINSKY Well, in that candid sort 3 of way, I wouldn't regcrd it as being -- as conformlng to 4 our previous order. 5 CHAIRMAN HENDRIE: Lcok, the only thing which is 6 proposed that could go in 30 deve, unle ss the commiss ion 7 said no, would be the lifting of the immediate effectiveness S . of. this order that we work en new and.nothing else. 9 okay? That's the only thing which you would say 10 will take place 30 days af ter an initial decision of the board 31 or staf f certification,. whiche ver is later. 12 CONNISSIONER GILINSXY: We.ll, you're saying that 13 should the board decide a plan can start operating -- 14 CHAIRMAN HEND,RIE: If the board says shut down and 15 don't start, then you can still, in 30 days, lift the 16 immediate eff ectiveness of _this order we work on today. 17 And the plant continues to stay down. IS COMNISSIONER GILINSKY: Should. the board say you 19 may start operating, then barring commission action, wi nin 20 a 30-day period, the plant can star: cpera:ing. 21 CHAIRMAN HENCRIE: Yes. 22 COMMISSIONER GILINSKY: Sut we said in our previcris 23 order that an operatien wculd depend en a decision on the 24 part of the cc:=issicn. You :2.- regard .c acti:n es a 25 cecision. 22ie 162

n 199.'02.7 22 ,gsh I CHAIRMAN HENDRIE8 I regard it, indeed, as a decision 2 of the commission, but only with regard to the immediate 3 eff ectiveness of this order and not a commitment on all of 4 the other issues or, ind ee d, subsequent shutdown of that, 5 as determined by the commission to be appropriate.,. 6 COMNISSIONER GILINSKY: I interpret our previous 7 order as saying it takes commission action to turn a plant S en. That's what I thought it to be. 9 C0 kNISSIONER BRADFORD: There's another problem with 10 that 30-day action that's been taken situation. JI Supposing for some reason that the commission has -- 12 it's hard to see a 2, 2, decis ion on that. But supposing 13 the commlssion is de'adlocked. You then would have a situation 14 in which restart. could occur simply becaus e't.e commission - \\ 15 was, unable to take a'ction. 16 CHAIRMAN HENDRIE: I guess I would regard that as 17 commission action, too, in a sense. And it seems to me that 18 if a proceeding has gone along as f ar as I suspect tnis cne 19 will have gone, gone as long as this one has, by the time 20 it ecmes to a board decision and staff certifi:ation, that 21 everything's been done, it seems to me that :ne l ican s ee 22 has a cartain interest in the matter and is entitled to some 23 minimal aspects of, you knca, fair play and, indeed, if the 24 weight of the proceeding and the board dec!.sier is th at 25 restart could go ahead from a public healt" sn: safety 22 v 163

199 )C2.8 23 _gsh I standpo in t, I think that there may be a certain amount of 2 elementary j ustice in not allowing that to be defeated because 3 the commission is divided and unable to reach a decis ion one 4 way or another. 5 That is stalled out. And I guess it just depends 6 on whether you prefer to see the licensme's interests either 7 suffer or not suff er as a result of a commission inability 8 to decide. 9 COMNISSIONER GILINSKY: I wasn't suggesting permanent 10 deadlock. But 30 days it begins to schedule filing papers, Ji 5 days, or whatever it is, in compliance with the mails, 12 you really would allow the commission only to have taken a 13 f airly preliminary look at the question. 14 And that matters that might ~ be worked out over a ( 15 longer period of time might well not be resolved. 16 CHAIRMAN HENDRIE It seems to me that the record of 17 the proceeding, as it goes along, all the motions and 18 everything else and everything the board says, that that 19 record is available to the commissioners to the extent that 20 they want to be cogni: ant of it, starcing months before, and 21 even. the boards --- and, yo u kno w, the final decision or the -- 22 what do I call it --- the initial decision of the board then 23 comes at che end of that process, presumably a staff 24 certification. 23 And I must say, I gue ss commissioners -- it seems to 2 0 i. v-164 L.

! 99.'0 2.9 24 .-gsh I me that 10 days af ter the initial decision of the board and 2 some staff certification about completion, commissioners are going to.have had ample opportunity to delve about as deeply 3 4 as they're going to delve into that record. 5 Tha t is, what I'm saying is that it seems to me to 6 reach a decision on lif ting the immediate ef fectivene ss of 7 the order we work on now, it's not necessary to have months 3 or whatever to lcok at it. 9 I don't know that that's what fo.llows frcm what 10 you're saying. But -- 11 CO NNI5SI0tlER GILINSKY: I'm not troubled by 12 cor.missioners having closely followed the casa. And I studied 13 the issues deciding in relat1vely short order that the y v'n: Il to go one way or the other. 15 I am trouoled by the notion of simply an action 16 on the part of the commission resulting in a lif ting of the 17

1. media te effectivess of this order when we've cornL:ted 13 ourselves to take direc t responsibility for the result.

!? CO.'."4I55IC:IER XEMi5CY : Tae order we i ss u e d 0.- July 20 2nd has two interesting facets in this connection. 21 The first is, it did say that the shutdown facCity 22 shculd remain shut down eatil further order of the cc Tmission 23 itself. And you're quit e correc t. 22 I seems to me that the require s ne: en;y some 25 oreer : hat seys, if we een : sr s: etni g,

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s 25 179.02.10 -qsh I an order saying we did something. 2 I think we're obligated to issue an order. 2 Now there might be some legal way to get around that. 4 But I think it would be f acile and not a pc ro p r ia t e. I.:hink 5 we ought to issue an order. 6 Now, the questlen ist How long should it take to 7 issue such an order? S It seems to me on one's judgment as to what sort 9 of an order it really is, if, in fact, it is a provis ional 10 one -- that is to say, that given what we know at this 11 juncture, we see no further reason to retain the plant in 12 a shutdown condition while further proceedings continue, 13 but that that question is not foreclosed from further ~ la discussion in the future. That takes one period of time. - 1 15 If one has to ma,ke the ultimate conclusion whether 16 for all time, this plant can, in f act, be ope' rated without 17 any eff ect on or any appropriate e ff ect on the public healtn 13 and safety. It seems to me that that takes a rather much 19 longer time. 20 There's a second facet of this order whi:h I think 21 is interesting and should not be forgotten by.this ac;ust 22 body. 23 It says :na: the commission will also issue an 22 Order within 20 days specifying ir detail :ne bas is f or its 25 co.cerns. That is the reason :..a: w e sr.ut r.e plan: ::w-in D P*D 'D ~ 3 ~ M ti Ah 2 2 '.. 166

I99.'02.11 26 _gsh I the first place, a f act which we have not made clear either 2 to curselves er to the public up to this point. 3 I reiterate, and I think I said this much earlier, 4 and the date of this. order is the second day of July, 1979. 5 And this is the 27th day of July. 6 If I am correct, we have something like 6 days in 7 which to issue that second order, or another order saying that ,/ 3 we can't decide what the concerns dere that we had.when we 9 issued the order to close the plant down. V 10 No w, that f act may well bear on the point you're 11 talking about with this second order. If we can't even decide 12 what it is we're trying to do in 30 days, I wonder if we're 13 capable of deciding whether the plant could come up even 14 on a provisional basis in two or three weeks despite the + 15 board's e f fo rts. 16 I submit that we ought to be able to get en with 17 th is. That might tell us the answer to whether we can handle 13 the other ma.tter in 30 days. 19 20 21 22 23 24 25 22 a 167

27 199'.03.1 gsh I CHAIRMAN HENDRIE: I guess that I don't know where 2 that leads us Dick. 3 CO MMISSI0tlER XE.NNEDY: de're talking ecou -- we're having endle ss debates about whetner 30 days plus 5 f or 4 5 mailing, or 10 for mailing, would be appropriate when we're 6 f orge tting. that in 6 days, we're going to have to co something 7 acout tha orcer we're currently opera:Ing under. 3 I suggest tha: at the rate we're making it, we 9 are not going to, and counsel, I hope, le draf ting some sort 10 of acditional order to give us further time to discuss this. JI CHAIRMAN HENDRIE: As I read the current list, there 12 are 10 areas in whl=h we need to come to some agr ee me nt on 13 the thrust of the order that we're in the process of producing. ~ 14 This review question and.the 1.if ting or no: Lifting --a 15 . of the immediate eff ectiveness of the order we new work on 16 is the first of the 10 items. 17 And vnat I am trying to seek is a consensus to find la whe e I can gather up the three comntssioners on how that r 19 section ougnt to be written and that we go to num er 2, 3, and 20 so on do wn the line. 21 I continue to tnin2 that the re's a use ful element 22 in cuiloing in the kind of ceadline :na: John has se;gested 23 here. 24 COMt!55:0.lE.4 KENNEDf

is o ae rece;'e:

-.e-25 was the au:nor c-the 30-d2/ deadline ..a: refer-i..; I 22'e 168

! 99. 03. 2 28 gsh I the present order for precisely the same purpose. 2 That's my po in". 3 CHAIRMAN HEND?.JE: Ir vou'll tell me whether you 4 agree with the 3C-day lif ting of lmmediate e ff ectiveness of 5 this, if there is action by the commission, then I'll know 6 whether -- 7 CO WI55IONER KENNEDY: No. I agree that the re should S be a 20-day limit. But I further believe that the order that 9 we have previously issued f alls upon us to make that 10 statement in this regard, no t let it just happen by a failure to act, however it may be described as an action. 12 I think the commission is coligated at that po in t 13 to put out i one-line order saying the board's decision is 14 affirmed, wh1ch is then consistent with the order we already. [ 15 have on the street. ~ IS That's my view. 17 Sut I believe that it can and should be done within IS tha t 30-da y pe riod. 19 ';o 9NISS*0NER 3R AJ.:022: I'm certainly pre;ered :c 20 agree to try to reach a decision ene way or the other within 21 t h e --- 22 COMMISSIONER KENNEDY: It's a pro visional dec's ion, 23 in my view, only. I'm so rry. 24 COWI55IodER BRAC:023: To reach * -

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~ 25 de c isio n, I guass I'd be e 11::le nc'.e .i seis wi:r 35 davs 22;o 169

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b ~ -lu s m 29 1 99.03.3 gsh I than 30. 2 But an ywa y -- 3 COMMISSIONER KESNEDY: I would certainly agree to 4 35 days. Even 40. 5 COMMISSIONER BRADFORD: Wall, that. I think, would, 6 in effect, put that decision on the same status as our e ffort 7 to reach an order by August is now. 3 That is, we have stated a deadline for ourselves and 9 we're trying to mee t it. 10 COMMISSIONER KENNEDY 2 I think se tting deadlined for J1 ourselves is a great. thing. I think even meeting them would 12 be better. 13 CHAIRMAN HENDRIE: How would one phrase this, then? [ 14 MR. SICKWIT: One could phrase it in a number o f 18 ways. One cculd say that the commission shall reach a 16 decision on whether to lift immediate e f f ect iveness within the 17 30-day period. One could say that the commission shall IS a.ttempt to do so, make every e ffort to do so. 19 One could say that if the co.mmissicn fails to rea:n 20 a judgment, that the action of the board shall be -- :he 21 immedia.ta e f f ective ne ss sha ll be lif ted within 30 days. 22 If the commission f ails to rea:n a judgment, th a t, 23 in effect, that the plant should not ecme up, in effe:t, 24 coc tar-ac:ing :he coard's be:isi:n wi:h.n 3; tays. 25 Then, the conmi ssion saali issus ar er:er ' if t i ; 22iv 170

~ D D D,,L 'y j i _ ev eu - ] ]@ ' ~ 30 ,l94.03.4 gsh I immediate ef f ectivene ss. 2 I. think those would be the three basic options. 3 CO MMLSSIONER GILINSKY: It seems to me, as I said 4 before, that the only course that's cons istent with our 5 previous order is to lift the innediate effectiveness of h t is order only by -- 6 7 CHAIRMAN HENDRIE By an action of the commission? 3 Co.VNISSIONER GILINSKY: By an action of the 9 commission, yes. 10 CHAIRMAN HENDRIE: So you wouldn't f avor the last one Ji which still has an automatic circuit in it that says for 12 action and the 'coard decision? 13 COMMISSIONER GILINSKY: I would say action -- no la immediate ef f ect.ive ne ss. This order remains in f orce. s l$ MR. SICKWIT: It coligates the conmission to take 16 action in the event of no action. It obligates the 17 commission to order the plent up if i t --- IS COMMISSIGNER GILINSKY: It takes an order of the 19 commiqpion to put tnat plant back into operation. 20 CHAIRMAN HENDRIE: Let's see -- 21 MR. SICKi1*T: What I'm saying is that technically, 22 in each of those cases, you would have an order of ne 23 com?.ission p uttin the plant back in opera:icn. In the case 2: of tne tntre, tne entire ertft of i-4:uie e to :ne c 25 centrary. 22;. 17i

31 1 99.03.5 -7sn 1 CO MMISSIONER GILINSKY: Here, I've got to agree with 2 Commissioner Kennedy. It may be technically right, out -- 3 MR. SICKWIT: I think it does counteract the drift 4 of your previous statement. 5 CHAIRMAN HENDRIE: Then, your first two options were 6 simply to say the commission will deal with the lifting of 7 the immediate eff ectiveness of this order within -- 3 MR. BICKWIT: 30 days. 9 CHAIRMAN HENDRIE: 30 days of certification of 10 complet ion. We ll, I assume the same language would go here if J1 the licensing board should tssue a decision authorizing 12 resumptice of operation upon completion of the certain 13 specif1c actions of the lic e ns ee, and subsequently, if staff I' 14 certifies those actions have. been comoleted to its satist. action - ~ t 15 MR. SICKNIT: They will reach a dec ision within 30 16 days on whether to lift immediace e ff ectiveness. 17 CHAIRMAN HENDRIE: Of tnis order. 18 MR. BICKWIT: Right. 19 CHAIRMAN HENDRIE: And then it will ge en and say, 20 if is determines so that the public health, safecy, and 21 interest no longer require that this order or se:,crovisiens 22 remain immediately aff ective. And the decision on that 23 question will not e ffec t its normal acpellate review, and 24 so en. 25 How do es that stri%e ycu, :nen, since : : 2.- ' :

?

22:; 172

d 32 I 99. 03. 6 gsh I headway with your original? 2 CO MMISSIONER AHEARNE: B ut if there are four, that's 3 obviously -- 4 CHAIRMAN HENDRIE: I don't know whether I do or not. 5 Okay? 6 CaMMISSIONER GILINSKY: It's all very well to set 7 de adlin e s. I _ think it's a useful disc ipline. Su una: S happens if those 30 days, that 30-day deadline was not met? 9 CHAIRMAN HENDRIE: Precisely the same thing if we 10 don't get the TMI order out now within the remaining days. JI I t means tha t, in fact, we've preached our intention as 12 expressed in an earlier order and nothing happens. 13 CO MMLSSIONER KENNEDY : I submit that may be open to 14 question and I would like to ask counsel what the resalt*is 15 Lt the commission f ails to comply with its order? 16 MR. SICKWIT: Violation of your own order. I think 17 sult would try to compel you to take action in conformity la with that. 19 CO VMLSSIO'NER KEllNEDY : I would hope so. 20 CHAIRMAN HENDRIE: A litigation would ensue. 21 COMMISSIONER XENNECY : Me have the same obligation 22 to comply with our orders that everybody else has. I f w e're 23 going to issue them, we ought to comply with them. 24 CHAIRMAll HENDOIE: As a r.e ter of fe:0, One earlier 25 one in this case -- 22io 173

_ r _... :n _ _ _ ; .u. 33 199.03 7 ash 1 CO NNISSIONER KENNEDY: Discipline, it was always 2 said -- 3 CHAIRMAN HENDhIE: Have you got the earlier order? 4 COMNISSIONER KENNEDY: Discipline begins at home, 5 I was always told. 6 CHAIRMAN HENDRIE: It's sort o f the conventional -- 7 the commission will also issue an order within 30 days. 3 COMMISSIONER GILINSKY: Would everyone entertain such 9 motions in o ther circumstances? 10 CHAIRMAN HENDRIE: People presumably will fly over J1 whatever propositions they.think are appropriate in that time 12 period. 13 Pe ter, 'what's your thought? 14 CO MMLSSIONER SRADFORD: Sounds all right to me. I ~ s is guess, as I say, I'd prefer 35 just because I'm no: sure 16 I understand the time periods when you throw in the mail. 17 CHAIRMAN HENDRIE: Sy not spec.ifying that, we'll la take motions in 10 and rebuttals in 7, and so on. You say 19 it's 30 days from staff certification that we'll attempt to 20 come up with an order. 21 COMMISSIONER 3RADFORD: No. I f somecody -- 22 CO MMLSSIONER KENNEDY: de have to specify those 23 other time periods, don't we? 24 CO.914ISSIONER 3RADFGRO: as dor'; nave to, b;; if we 25 don't -- 22: 174 o

il 99. 03.8 34 gsh CHAIRMAN HENDRIE: We're not asking for motions. 2 CokWIS5IONER KENNEDY But if w e do n' t, then 3 establ.isning a 3C'-day deadline, it seems to me, is unreasonaole .<^ 4 because the parties will not know that they are obli;ated to 5 act within cartain periods of time when they won't ge: an ything 6 done. 7 CHAIRMAN HENDRIE: They're not obligated to act. 8 CO MMI.55IONER KE.t!EDY : Of course not. But we have 9 a responsibility to them. If we intend to do certain things 10 and take certain amounts of time, they ought to know that. .11 COMMISSIONER AHEARNE: In the d.irection you're going, 12 unle ss you put down some kind of time schedule, I do n' t think 13 you'll have any power to reach this issue. CHAIRMAN HENDRIE: I deco: that. But y.ou'll have a 14. ~ \\- 15 record of a hearing tha will run literally years. I6 CO MMISSIONER AMEARNE : You'.11 find a need to get more 17 ir.f orma tion. IS COMMISSIONER BRADFORD: Well, what you will get are 19 the views of the parties on :ne 29:n day without aedr e ss ing 20 what other things are imcortant issues. So you'll have a 21 whole new sat of papers at the very end of th.a time p eri:d. 22 CO?.GtI55IONER KENNEDY: de won't have a whole set. 23 C0 9NI55:0NER SRA:.:0RD: I: will be a new se and they 2a won't address the points reised oy es:5 other. 25 CHAIRMAh HEN RIE: .2 ey. 50 what you w:;'_d cr:;:se R@c o 3 D D D J. . j ee c,

3 22 175

3;' 199.03.9 _gs h I to do is get the kind of language I just went through. And 2 anybcdy that war.ts to file a comment with us on this process 3 has got to do so within so many days and anyocdy who wants 4 to comment on other people's comments have got another so 5 many days. 6 I must say I'd give them 7 and 7. If you know two 7 years ahead of time that when the board makes a decision and 8 then the staff certifies completion of actions and you're 9 then going to have 7_ days to tell the commission what, if 10 anything, you want to tell them about the ir lif ting the .11 immediate e f f ect ive ne ss, why, it seems to me that the parties 12 are emply on record and don >: have a problem. 13 You know, you're not going to ask f or this 80-day 14 briefing sort of proposition. You just 'give peo'ple 'a enance ( 15 to ecce in and say, you're out of your mind if you lift it 16 or you ought to. 17 CO DlISSIONER SRADFORO: What will the parties involved 18 with the board by that time -- will they have filed comments 19 on the record? 20 MR. SICKWIT: Yes. 21 COMMISSIONER SRAD.:0RD: The requested f indings o f 22 fact? 23 MR. SICKWIT: Yes. 24 CHAIRMA:i HENDRIE: All you're a; lowing is sor of 25 one last le.tter. 22; 176

3.- ,D " l0 D '3~ M @ Uo M o JKL 36 199.03.10 -gsh I CO NNISSIONER SRADFORD: Well, no. 2 CHAIRMAN HENDRIE: And comment on the other f ellow's 3 le tter into the record. 4 COMMISSIONER 3RAUFORD: At the very least, it will 5 be the first time they've seen a board decision, which will 6 be a document of some importance and, conceivably, a fairly 7 long one. S I would still go with 10, 7. 9 COMMISSIONER KENNED": de're talking about 3 or 5 10 days. I don't see what the point is. Why don't we just say 11 35 days, which seems to make ss7se? Me need 2 weeks. We 12 ought to allow ourselves 2 weeks. 13 If we can't answer that question in 2 weeks, I 14 don't..think that we're going t answer it in 2 years. y 15 CHAIRMAN HENDRIE: Can I get agreement en 13, 7, and 35 overa ll? 17 COMMISSIONER 3RAJFORD: Yes, IS Co.W4 LSSIONER K'NNEDY : Aye. 19 COMMISSIONER AHEARNE:

. ine.

20 CHAIRMAN HENDRIE: Steve, between you and Len, is 21 1: clear enough how this section ought to read? 22 MR. OSTRACH: Yes. 23 CHAIRMAN HENDRIE: Next item, disco very. hhe 24 recermenda:icn in :ne council's 5.emorandum, ho se 00.s ider 25 a course to attem:0 to encourage One 00 erd to trv :: k esp :na 22'o 177

g .2. Ju o 37 199;03.11 ._gsh I discovery of ooeration in hand, not a.llow it to extend on 2 . ind e fi nit ely. 3 And the other side as another option would be to 4 not allow discovery on the basis that there's a lot of 5 information that wouldn't normally be available in a case 6 oming out of tnis. 7 And then, to set a f airly high threshold that 2 3 party would have to get over in order to allow discovery in 9 some special grounds, or rather, grounds that investigations 10 weren't producing the kind o f inf ormation that was needed. Ji I think your recommendation came down simply on not 12 doing that, but on encouraging the board to keep track of 13 the disc,overy operation and prevent undue delay cr inposition 14 of an undue burden on any party. \\ ~ 15 Is that r4gnt? 16 MR. SICKWIT: No. We went the other way. 17 CHAIRMA.V HENDRIE: You went oack and forth accut IS three ti.mes and I must have missed a turn. 19 C0 ".'4 f SEI0 DER S RACFORJ : Les: sentence on the firs: 20 paragraph under discovery, page 5, shows what's reco-ended. 21 MR. SICKWIT: You may ce :ninking of the cro ss-22 examination. 23 CHA:2.4AN HESCRIE: Well, I also mey have 24 mischaracterized your options. ..!a yc e,:u'd care ::, A, 25 rechare::eri:e them, and 3.

men: On :new e..d ie:'s see e.+

2 c. n' v

D@*}D 70 'l i O kJu JO d L 0 33 I99.03.12 3 -gsh weight lies on this matter. 2 MR. SICKWIT: I'd like to a sk Ste ve to. 3 MR. OSTRACH: Mr. Chairman, I believe you 4 characterized the two options quite wall. The f irs t wo uld be 5 ordinary e =.versary discovery that the board would tightly 6 monitor. The second would be a somewnat dif ferent procedure, 7 which would rely primarily on the existence of material that S has been accumulated by the commission, by the special inquiry, 9 by the President's commission, the Congressional committees 10 as a primary sourca of information. J1 The basis for our recommendation is not that we 12 could easily point to a tremendous time savings if tne 13 second procedure is adopteci because we reccgnize tha: in

• ~

14 the schedule, that ihat has been proposed so f ar, the re is s 15 no.tellir.g where the parties are doing nothing but discovery 7 16 and.the. f or e, no ma tt e r.vh a t you do with discovery on that 17 schedule, yo u wo n' t save any time. IS CHAIRMAN HENDRIE: It is, howe ve r, true that if 19 he discovery process drags out end becomes four or five or 20 six =enths instead o f two, why, it cecomes a controlling 21 element. 22 MR. CSTRACH: Yes, sir. It's going :: say :ur 23 reco =endation is based on -he fact that a procecure like 24 this would pre vent any sli.:page due to discovery ;r:clens a.d 25 it would also prevent :ne carties fr:7 dis; rec;i, ; : ense'. re3 2L,~ 0'

199'.03.13 39 -gsh I and each other f rom the issues in the case with discovery 2 controversies. Discovery requires a lot of work. Respendi,g to 3 4 discovery requires a lot of work. That is totally apart froa 5 the gathering of the in f o rma tion, and a procedure like this 6 with a legal limit of extraneous matters that of ten take place 7 in procadure s. 8 9 -) 10 V J1 12 13 ,\\ 15 16 17 18 19 20 21 22 23 24 2210 150 25

mom o a 0 lD D fu ) "i _ w o l) . $] o _a t.. m..n, - st .m kap I ?.(R. 3 I C.G1IT : I gue ss :ne other f actor is, I 2 personally nave =cre confidence Ona: the SCR anc ACa5 phase 3 of this.till move en schacule. Anc : hat schecule tha t's 4 running parallel o it, will move on senecule so it's 5 conceivacle that you'll ge: to e coint where the discovery 6 is en the critical phase. 7 CHAIR?.(AN HENDRIE: Recind me again. Su::cse, ir "v. s. ~.. ' a......'..c.'."a-...

• t =.

~.~...y.' =.~.=..'...=.,'..'a's' 't a c '., V....='. = 9 we now have in hand wi:hin the pre? riced scnecule so there 10 was en orcer issued August second? A w r.a .cin; would tha 1i discovery - if we limit it, they can't say disco very 12 starts, wculd have s. tartec ? ~ 13 MR. EIC.C!IT: On the 30th d ay. I4 CMA IR.'.iA.'! HEHDRI E : Accc: 50 days cown :he iine? 14 ' r 3.. 3 7.n v=n T T.. V. 2. s. a w.s. t

• Io C.-M I Rat AN HENdd I E:

ine enc or oc:ccer. ' '.e n a r e 'T parties expected to file testimony, anc so on? .o ..i... s t v.u.f I t: _i c.e i

tr day.

i Ir C. M.. I.O..d n'.i

4.. i.19.'.:. :

.,...i.- ..u..e. ...,"..:.;."...=. 20 six mon ths, 5-l/2 mon ths away, January 15th. Tne re 21 certainly should ce a f air volume of material f rc: . n v =. 2..' y =. '

r. a.i r. i. a.... o -

... =.. '... =.. "...e

a. n.c u'.-..-"a..

4. .N C d. i,..4.,..,, .w w aw '.,,w -.s .,2 ..e r

2....

wwi.... 22. n wes :.. a. .a. .. a. 4-4.t. 3 ton...... 25 and a f ac o' e r. c 22iJ 181

D** 3'3 A d @O O b3 Iv9 04 02 41 s xap 1 CHAIR.4AN HENDRIE: Presuming tney make.it. 2 .MR. S I Citil.'s /thich we uncerstand a this peint, 3 they are on schecule. 4 CHAIR: DAN HENDRIE: Sun at any rare, by the firs: c. ..%. e,/ a. a., .r ..'..' n.'e.w. = ' c- =,.y-=...'..y- .h..=. a.r. s wi '. e '.n, = e o u-- o

co.

Well, co=ments, deter? 7 CO.M.'4ISS IGNER SR AD FO R O : (es. Does :his impose on e a party then, a cuty to be familiar wi:n everything that is in the files of each and every one of those possible sources y 10 of information? .4R. 03 TRACH: .io, sir.

irst, we pro po se t ha : the 12 Cc mission would itself, main tain in one place, all of :his 13 ma erial.

Anc seconcl.y, the par:y wculd no ' e re'spensible c l'4 f r knowing wnat's there. I: is jus; tha: ins:eac, when he 15 cesires informa:io.., ins esc of going to a party anc 16 recuesting deposi tions or inte rroga tories, he would be 17 recuired first, Oc go to the availaole matarial anc prove -...a. ..e .u _, ...a...

2e_,

.a,, .e,

a. u nu

..,.a. ma-a <,-

s..u 1v.

c a . a -..t,n. .a.a.t,. e. u, .s e ...no n 2, ~. o- ...,,4,. be.o.a. . a. .. 3.. .7 +2 1a -a csa~.4.cs. . n. se 2i ~J.u,

2.. s,. r c.e 0.a

,r-G, .n. ... e. -,.i,., 2-2,.,.. 4.. t. w n 22 d u ogo s ng 1 was :here anc ne missec it? Mne; he:cen s? .. 2.. e. g..:..w...- : .u.,,.,, -j ....n. r -... a. n. ~.. . :.. a. ..u.a. - a .e. ..v.. ... a. . 2 _1. a.,..u. s. .nn 3.: =.,.,...,. .., c n.... a...g, . c ~- s -- g.,~, 2210 182

m y 7 D, D t .S b a = s w 199 04 03 42 s .< a p i COTTI55IONER 3R ADFORO: And, are you saying then, 2 Steve, that we would nave in one place, every:hing there was 3 to ce had acout it? It was in :ne public comain abou: Tnree 4 Mile Islanc? 5 MR. C STR A CH : tie woulc try to accommodate o everything tha was in ne public domain. To the exten t, of 7 course, we can't ge ccoperation from parties, the material 6 woulcn' be in the da:a ccmpilation and the party coulc get 9 discovery on it. 10 COMMISSIONER 3RAOFORO: Is it normally a 11 legitimate def ense Oc discover a reques: for the party on 12 whom it's being servec :o be able to say tha: :ne [ 13 , inf or=ation is available through' other means? ~ 11 MR. 5 ICKWIT: Under our rules, the scope of 15 ciscovery is tha: car:1es may obtain discovery regaroing any 16 mat:er whicn is relevant to tne sub j e:: ?.atter involvec in 17

ne proc eeding s.

13 C0 41.(I 55 ION Ep. AM EARN E: tna: ccesn't apply :: the 19 information NRC has? 20 MR. SICKWLT: I t coe s no t? 21 COMMISSIONER AHEARNE: Well, mayce I'm misreading 22 2744 ..,..s.s a. a t,.., a: .1. a: .4: v.... 4. :: d.,...4 3. :.:.a : : 25 MR. S IC KN IT: No, it ccesn't. .: epplieu to 2743. 22;a 183

D g -, D D q m A o 3

Igc 04 04 43 kap 1

COMMISSIONER AMEARNE: 2744 a pplie s to procuctier. 2 of NRC documents and said presicing officer there is 3 sucposec to decide one of its criteria,.whether :he 4 documentec information is reasonably ob:ainable f rom other 5 sCurces. o MR. 05 TRACH: That is also in orcinary discovery, 7 a pa r ty can an swe r

• reques by saying that infor ation is e

available at suc h-and-suc... 9 COMMISSIONER KENNEDY: It is a reasonable answer. 10 MR. SICrMIT: Not as I read our rule. But, t ha t's 11

ne way it's ceen interpretec.

I'm no t f ami.iar wi;h tha 12 interpretation of it. 13 COMMISSIONER AMEARNE: At least for our records, s l '4 it seems :o ce very explicit. 15 MR. SICKMIT: Yes. 16 COMMIS5IONER 3RADFORO: If the rule looks that way 17 in Oractice, then I'm uncertain as to wny we wculd neec to 13 s: ell it all cut in :he o rder. 19 MR. SICKNIT: Yes. I unders:ard. 20 MR. OSTRACH: Withcu : requiring ca:a cepilation, 21 i: woul: be very cifficui: to say wnere :he ma:erial is. 22 COMMISSIONER 3RACF020 : Requiring ca:a compile:icn 23 is prc:aciy another ma :er. ! :nin.< ;;'s probacly : ;;;c 2-icea. I gue ss my opinion woul: 'e rsquirs ce:e :: piiatic.- 25 and le: normal ciscovery rules work in conjuc tion wita :ha:. 22iU 184

D ~ D D'3 k d .d.3 oW o .a ! ;9. C4 05 44 .< a p 1 CO M.'.;I SE ION ER XENN EC Y : I gue ss mayce tha: question 2 i s in -- if c ha: is in question, then we ought to nail down 3 the diff erence of view, whicn seems to 'oe expressed aoout 4 wha; our rules really say. Because we want to 'ce wnolly 5 resconsive o our rules, cr, if we con't wan: to be, we 6 could even c..ange Onen. 7 C0!.C4I55 IONER.GiEARNE: Coulc I ask a couple of e que stions on this? On your cescription of limitec ciscovery v on page six, you nave down near the bottom of tha t pro po sed IC language, the pnrase: anc 1: will also permit informal \\1 access for SRC staff conside:azions of the i ssues involved. 12 I'm no: sure what that phrase means. II M2. OETRACH: I: w's intencec to mean :na: the s 11 practices tna; are now folic red in ordinary licensing . ' ' " i s..=.' -.

• v =.1 v, ' -== a..-a s.e '-.

.v n. e..a. - 3.ae-.~<..g 3.4, e,. .r a. a _ "_.*..' r. ..-. - d.' n _=. /. 4 s v- ". s _e.i.,,.'i.3.'.' d. 17 staff i s ve ry c oo pe ra tive w i t.^ intervenor recuests to see i. s:aff cocuments, to e::ene s:af f mee tings, ma::ers like .1 20 I was perhaps an artful way of saying tha

na :

21 policy would ce f ollowso in :his proceecing, as i; is in .-.c.. ........__=...._=.;..s_,..._. ...- _.. s.,. _. c.,. 2...__.. _.. s a t n _=.. -. a...,..., u.. _a s. ..,.,. _... :........='. _2 u.. 22iJ l85

4 ~ ] Iv.- u, w, od 4 :- y ,s

w.,. <..--,..= i... <s i.=,i/

i c <. a --./ e -,/, =- s... -e... .n 2 relevan, it's not available. Su:, I'm not sure I 3 undarstanc the last phrase. To me, it seemed to read 4 particularly with en "end" in there, that if I came in were 5 able to prove na t it's A, clearly relevant and 5, it's not 6 available,~ut C, unle ss I could prove that fincing, it 7 wouldn't re sul t in any uncue celay. c I still could get it, even if I proved in Was relevent and unavailable. s 10 MR. OSTRi.CH: There are degrees of relevance. 11 T ha t's wny we c hc se the werd " uncus." A matter mi;n ce 12 tangentially rele vant or rele v'nt o a minor point or L3 cumuletive point or one more e vidence that s:me:ning was \\ la true,,but would require w eeks and perhaps con tns Oc find the I: enswer. And t ha t's why we cac s e n e t e rm. 16 COl4.'4I55IONER AMEARNE: So, the Boarc calencing One 17 judgmen cf relevance versus the delay? .4.,., w s :... - e. .<. a, a.. i M e .w. .w j 7 v.r., :r.q. { 3 7 -=' T a . _.. _r...m.q :. _.3 3, 7, 7,. g < 4 n.. "u g m-3 sy g f ,.t w. 20 seven near One cp, you've ;c: a sen:ence: There nave been 21 allega icns in p.cceecings :na: discovery has caen used :c

7. 7

s. o.. 2

.i.n.. =.. v. n s.< r.,. .cc, ,/r.m ...m -........- 2.. , =., <, 4 -.2 ..,.~<..-...,..,...-,-.....s...- .......m.....- ., ~...,.. .-. r.. 5 2 ..s.2..,. l w, =i...-j ,s; ..e 4 v.;a.4iOc W,,._,:n R, :.,. _.,.f. ..-c W wo e s na : We r.< t d:L a 2210 186

9 @U D

• D l 'T D

A d T J a v o Iiv 04 J7 46 'Z; 1 .JR. 05TP.ACH: Tc give a hy.cc the tical ex ample, a 2 personal intervencr or small organization wculd a ccear 3 seeking to raise certain conten: ions. Particularly if they 4 were the only intervenor and in their absence, a proceeding 5 could be. uncontested, a party desiring :o remove that o proceecing and convart it to a contested prcceeding could 7 file a 20C-page cocument asking for the basis of d centention. Are you familiar with this in this documen ? Are 7 10~ you f amiliar with tha t? Please list. There are ways of il making it very cifficul; anc frigntening, particularly in 12, wha 's not f amiliar witn ciscovery cccuments, making it icok ~ f 13 like ycu're going to have 'an awf ul lot 'of, wcrk to do. If s id you don't respend fully. then a T.otion can be filed with a l-u n..,..- co..u..; s.,, a ..a. 16 Discovery can be usec in :na: fashion. If an 17 in ervenor, none theless, cersists. tha workload can be 1 crec.s 'cously increasec cy ex ensive discevary agains: .i n, .a. a... c. a,. a ty .<.s v J...,. I s o.., a...., -.., - y : I, works .u.e o ther way. n am m ce.ssa. i ca. a 2I tco. .")..J W 1.l..'.8..I.*.O. 7 '.1 \\ ' 0 0 .l..b' O..t..*- \\* O. * .,g o..e. /. .-s.le..a ..f a 3.7 -f. ..e e 4.a. m, .d..'...%..y 44 J w a.. / a. .e 4. ey

~

a; t..y a..na. 2...., g. 4a ...2s*%g 'e.,

g.........' j 7.~,..

c_ i

a. f w. r. u..g

n. -..;.' C.a r. ~..'*.*. v a.

s u ".* *w.* n *..i a.' ."*..C'.*w"*..*. .O '/ y.~.~.4.*.* 2 1 2 9 *l u I L

nl D}]D l} b g\\ f u

• ,,/

.:ap i into a ciscovery, the par-ies that come out ahead ere the 2 parties with the grea ter re source s. c Co.'C,tISS IONER.<5MNEOi I: seer.s to me : hat such a 4 circumstance is probably inappropriate to discuss wPo comes out a he ac. t tn., nk everycocy is tosing by such a proce ss. o O CHAIR.. FAN HENDRiE Jo hn, how do you come cowr? 7 COMMISSIONE2 AMEARNE: I: seems to me 5 MR. S ICKWIT: I'd just like to say that our y recommendation is no: a nard recommendation, in fact. 10 Co.'.!MISS IONER AMEARNE: Coes -he Board in so-called 'l normal proceeding, which I gue ss is tigh ly monitored, is it 12 the same as normal? il MR. OFIRACH: Yes, sir. ?rocecurally it is ik no rm al. It's just that the Board is given instruction to .- " =, a. n -

d..' a-.o.. i

r. o ".. h a.

.. ". =.=.x. =n. w.=n 5 2"a . v. .2 -e s .-., x.i.. . h.a. .. r - ^ t =. ~.. '2 ... o u.'.a..= -"f ".' s.,o v =.. /...*. . c. a. " f-a 17 r.o involved until a,ar:y receive s compliance with en orcer Id or seeks pro tection. Anc a io: of ciscovery goes on li vi:houtn the Board's involvement. 4'.' So, 1. ~a.* 3.. w e' e m' _'.'. -"..'. ' - ". ".=.= c a..' '. v- ... r.'..- - ~^ u 21 and prevent all possible wa ste of time, particularly i' .+,,,i-,.as , + u a.s y,.. i....,....,.<.,..'/ .e.,-,....- c; .,,.,,, I : c.,..:.. .s. c... -... . u.., 2. v-2. m.. .4 7., -,. =.. -. =. ,...-...,,..,.-..,.2 2 c_ .z 25 f eels i; is cecoming acusive to go to :r.e 5 caro? }80 27i L. 1 v.

__..~ I I Q I@N r[ y d J, o A I.-y Y. L; = h.'F 1h r W~.) '*.J. 't* 1.o.,.4 n. a ywo.e. 4..a. o y i a. e, A. l .n. e .s s,.. 2 yes, sir. A r.,.,.. : I guess I,v procao,y cone L,,.,..., oo I L,,...,4:n 3 s . :n t

n.

c cown on balance with Pe ter's a pproa:n to comoile all the 5 ir.for:.ction anc go wi:h tha:. Y ur words type and acnitor, o 1:'s very close either way. p re i e r. he., im.4. ec 2 .<.,.,._f ..Ie.; 1, i vJ...., I a. -. J, ti :n., ci , =... cu w s 6 ciscovery proposition as i; is describec on page six in -he language wi n the caveat tha: the oar:icular eff ec of our y 10 own regulation neecs clarification, which I :hought wa s w ha : Peter was suggesting. 12 CC:.GISSIGNER SRACFORO: Well, i: may have been the - =,. s-..' a n.. 1.1 a n. - =..e "..' u o ' =. t.'.n. 9- ..r d.'.' "..> - =..a.. * =.n.ew a.. 2 r-so \\ 12 Sun. I hacn' go::en arounc :o su;gesting it yet. 15 .JR. SIC.CI?: I mign; adC, there wculo be no i5 c0nf1100 be u een either o f the se se ts of language a..c the 17 rules. ..,o, .T a = r v r --- 6 w......7.;.=.,i.ne... 4.- .n :

3. 4d.:.

7 .v y.s J .i w. ..n... =. r !.; I~. r a. ..,.e., ..ga. t s....n., a. .o ....m. . r .a.

3..,,

.,'., a '..a.,=.. _3 ' ', 7 '.- o eaui..,,.~ ..=.. - m a,,,= m 3 ....,.,,. a. x. I a 24 .4 p., SIC.s?lII: ! s s. ?!e see no con-Lic; because . - 3. .3,- ... :.2. ..... l u.,,. _ : ,e:,s see. U n c e r

.~.e L,.. A A.t..,..

40

c. - ns:

c. p.. 189

D F# D D @ [1 J.m j o f M1. m

1...v4 -... IC

.r3.:.r. _= y y-a..= -..o " = v a.,- o.. =. w c '- '.- g y.. a. 4 ~..,. .1._,. a.. .s _3 .~. v =. s c...a a- . =..y'.'a - a m'.=..m.a. =...*. e '- o *.. .q. o "..- =,- = " 4 v e 3 of :he counsel's memorandum. It woulc then go en to note tna a compilation of 5 all cf :hese ;ccc :hings f rca the incuiries, e ce: ara, e: 6 cetera, vill ce main:ained. 7

.

R. 05TR ACH :

I suggest we taks the sentance ou cf :na micdle of page six, beginning wita "accordingly." , J,,, -- 0.y:2 :n A D r 3, n,L : .na:,s w.m.a t I wou.3c have v ..... t co 1 10 suggestec, was exac tly' tha t, taking that sentence anc -- I it wouica' feel a n eec to say any acre accu ciscovery than to 12 say it wculd be pursuant to 10 C.:R 2.740, 2.714 13 .4R. OSTRACH: In c her acres, you would drop the ~ s 12 last sen:ence in :he language on page five, drc,o :$e whole 15 thing? ,,3.., r =-.w =n-10 - A e. u: .< e s, e.' . would say 4 s 4 : t n u sn 17 woulc 'ce pursuan to che rule s. It seems :o me :ne

ne way i.:

.-..u, nc.. ..,.4 .... <, <....,. n,.. v a._--....c.a. 4 c..< .s. _ea.- a .2 e .e sy .,.,..a v a..w..'.'..=...=. .=... =. x

a..... '. =...

w- =..".,.-.a. ...=. " ' =.. - On .d.<...c...- _2.,w.4.,. a.6....a.. w u~w ...:.a.-.- .4 m. v. .O ' L,F.m $,.l.<..4. y..w. m. m 22 CO '.tM I SS IO.iER Kd.NIE'.J : I vo t e o r t he ie ;uege on ,._f. .'*d'.* i.1.,. '..:.. _ g ' /.* -.s..d,* .'.=,=,..A = .3 =.. =.. w. t 25 Oc come ccwn twc-wo on the 1 em. 2,c.a 190

39,- D'S I n Qya g. d G Q iy~ 04 11 3C <a; 1 C0i.i..iISd IONER AHEAR.iE I nave been going with the 2 language :ha

ne Jeneral Counsel hac P.ere.

3 CHAIR:.!A;i HENORIE: 'dith the addition of 4 compilation? 5 CO.tML SS IC'isR AHEAD:lE Rign:. o CC':MI5SIONER KENNEDY: I:'s a practical mat:er. 7 Exce p: f or One acdi: ion of compilation I don't see wha: 3 difference it is f rom wne t's statec in the rules. The language that's there now on page five is e ssentially y 10 redundan. I is simply saying do wna the regulations call il for. I coasn:' ca2n a hing. 12 CHAIRMAN HENORIE: If we're going to go in tha 13 direction, l'a like to see tne las sentence on page five. s Ib I think it's a lic le urgent toviard moni oring and is li usef ul. l5 00M;.ii3S IO.;ER.<lkiE~Y : The 3 card's going to be ,......-w.,- .w. .,-..__,..,.,..2, ./, u, s.<. -. / _3,,_,._, 4 . ~ _. 3 15 it's bean cid o f ollow the regulati:ns, wnich is wha: 1: ly is being toic o dc. 20 CO'4MISSIONER So ADFORC: I woula :ake the firs: 21 sentence and -he sentence 5: eve incica;ec f rom 3 and o wita c- ..a. il CHA L R:.t A.~ HE.i:R i E : Excep ycu wcuLcn't '.eac i _.._.4.,...-,., 7. _ _.., 25 CO J:4I 55 I0 DER 3R AC FOR C : I woulc have o remcVe :. e 22 191

= D'T D]*]D wo e .7 -ol

1-% v 14 sap I

word aC:orcingly, yes. 4 . u..s..r.q u.. q .w. :.n.a. n t _: : c '.s a'. 1.=..'.'. --=-/ e = 1=.=.- 3 enougn reco.naenda.<on. sor.n wants ne.1as sentence on 4 t ea c. Anc I guess on 'calance, I think f or the 'imi ed s.a c n..,,., ie < s 1.<.,.. n. .u, e... ,n o 2 i .. e 2 ,rv. n : Ia-... a. .e. =......d s e n. =.n c =. a ,~).i.m. t.es r e..o _:.0 r w 7 rignt out of the regula:icn? .4.R. O..- ACh The language of the seconc sentence o ctx is right cut of tne regulation, sir. y iv-u~).,.t 4I o: I,s3.3 x, .s .m,. --.f : .,.,hy con,, w e yncorpora te 4 : u 11 _= 2 a.n a,..=.....*.'. "..- ".=..-..d=.,.= -.-'/ o' ... e - =. ~, '.'.'.' a r. 2-

a.. -

12 say nereinafter referred to as regula tions, see A.apencix A? 13 C. ..e coulc even off er co_;erhaps have a course in the .-.o.. e .o ,_1.t c. 4,.,. 1 .o-we-e ..m 1:. C.u..;..r .,.2... ~ : ~

2.. :.

r. r., .i

v. eu w....=

t. s.-=..- n.v. n .e a..,,.,..,/,...,i.,. a.,., .a..=.. - a.,a. -,uae eo 2,,. i. ....a .f.4.i.i 2,... 3, i., .r .m.. .r. _ _ _ a ,.- < < ~ - a. .-_..s.s... mu. .a ..-.i..........s .,,.2 y.- e. .x 2G

ne other. I will ceclare a one-one-two anc we will use.

4 .,....,...i.,. .m..e a, 4i e......4,-....... .w3 s ...y y .' p.y. y.

• a.,.

^7 J .J t

• J*

J ".b., ^*-.a.. =.g. - -. m.7 2. ar*, c_

• .. L.

=/3 .a ,J A

w s,..j sc.

w..s. ..w.zac. .?, a... ....~...: '. 3 .g... g m.4 W,*,.'..,. '., *,.* .3..,w* .. "..'.3 b "..'.. ./.- * * / d "..#.'.' * *,d.

a. -

V w 3 ..j w 2oi \\92 L v

hb Q O c L 3 199. 24 13 52 ...n - .cy. ..r_3,....on.2 ....a.- ..i<n .6 yww i .w .e e

• 1 w.J.' f q rer;m n.t r.w (* r > t r.

v.3 1 y a. a A A ..,.4 n.s. ..w.m. 7 en aaww use it w. 6 s 6 w 3 it's a mista.cs to take out a.: articular ciace of it anc 4 underline it f or the Boarc, unless we know exactly what 5 .e're ceir.g. Anc I don'- f eel -ha: I woulc in tais o si:uation. 7 CHA I.;;.tAtt H ENDP. I E: I'll ceclare a two-one-ene e situation, anc the next time we co a draf t en :nis, why, we will 'cui c into the limited discovery language. Eut, as I y .ia 10 say, I tnink Peter's version anc John's version shculo be in i s han: ' ecau se, you know, when we ge; five ccccissioners cack arounc the aole, why, there may be regroucings :nat wil, ic [ 13 =cve One way cr the other'. ,la Su:, at least we've get three unicentified Oisces - 1 4_..3..= = 2 n~d t' ..'. i. s' - .v a. ....2~,, <. c u.... e n.=. x.. '..~= a ~ i v. u 1: arounc, scr cut u ni c n. i7 Let me move on, e ne n, Oc cro ss-examination.

Now, tw ra:her : nan in ter.creting your namorandum for yce_ i.9

ni s i7

case,

' 11 /Ou : ell u s waa: y:c've re:0:cenced anc w..y? gn d = S_ _O 4 e M. SA

D T'li ~D ' T } A 99,.[5.1 'Jo oj ,e 22 53 gsh MR. SI CKWI T What are the options before you in s 2 this case? We have chosen the more modest and that optien 3 would, in effect, encourage the board to provide us authority to prevent any undue delay to the proceeding relating frcm 4 5 unnece ssary or exce ssive cross-examination. 6 CO MMISSIONER AHEARNE: Close scrutiny 'oy the coard 7 is equivalent to normal procedure. Is that correct? 8 CHAIRMAN HENDRIE: It should be normal procedure. 9 MR. SICKWII: That's right. 10 CHAIRMAN HENDRIE: Cnly consistent witn our Ji regulattens? 12 MR. SICKdIT: R ight. ' It would enceurage the 13 alternative to delay crcss-examination until a first phase of 14 the proceeding and take the course to the board following that ( 15 first phase. But crcss-examination was required and then 16 to lay out for the board some f actors which are taken f rom 17 the Fcod and Drug Administration >s regulations as to wnat the 13 board should consider in deciding whether cross-examination 19 should be granted. 20 It would impose a somewhat :cughar s tandaro than 21 under our normal regulations. 22 I.et me just say one other thing. Unde r o ur rules, 23 ' the standard is a slightly dif ferent proposition in that the 24 authority of the presiding officer is to preven; argumen:ative 25 repetition o r cumulative cro ss-e xaminati:n. Here se are 2?'- 194 m

r o 29 _. rpAAb, . 3 _ 9 ~ l' 992. 0 5. 2 54

gsh I

saying unnecessary examination is also to be precluded. 2 CO MMLSSIONER KE.v"EDY :,11th a ll due respect to the 3 ocard, isn't that ultimately in the eye of the behol:er? 4 MR. SICKWIT Yes. 5 COMMISSIONER KENNEDY: And therefore, suoject -- 6 MR. BICKWIT: I don't see a great deal of difference. 7 Sut there is seesthing. 3 COMMISSIONER KE.'!NEDY : But to the extent that one 9 intrcduces scmethin; like u.anecessary and as an additional 10 note, that is clearly a judgmental matter, necessity being JI a ma tter of one's own view of Judgment in the matter at 12 hand and the merits. 13 Isn't that building a m.ajor case f or subsequent 14* litigatl.on and challenge?, \\ 15 MR. OST.RACH: No, sir, it's not. 16 The rign: of cross-e xamination that the 17 A ministrative Procedure Act itself uses the word " required " nece ssary" here. It says 13 which I believe is equivalent to u 17 parties have tne rign: to such cro ss-exam.ination as ?.ay ce 20 required for full and true disclosure o f the f act. Stating 21 tna the cro ss-examina:Lon is unnecessary or exce ss f 7e is d 22 the converse side Of that. 23 MR. BIC% WIT: In fact, it might be well t char.ge 24 this language to include the very lenguage Of :ne 25 A ministrative ?r :edure A::. 221a 195

r ~ .b. =^ 199.05.3 55 gsn i MR. OSTRACH: And. the cc mmi ssion's regulations. 2 That language of " required" is, as we sa y 5.e re, 2743. 3 CHAIRMAN HENDRIE: So wnere are we now? 4 COWWISSIONER KENNEDY: Change the words down in 5 that "close scrutiny of tne coard." 6 CHAIRMAN HENDRIE: What would be the words, then? 7 MR. OSTRACh Required for a full disclosure of the 8 facts. 9 CONNISSIONE9. KEN:iEDY: You'd have to rewrite the 10 sentence. .11 MR. OSTRACH: Resulting f rom cre ss-examination, 12 no: nece ssary for true and full disclosure of the fe::s or 13 from the other sources mentioned in that s ec t io n. 14 CO NNISSIONER SRA0$CRO:

.irst sentence stays One 15 same?

16 MR. CSTRACH: Yes, sir. 17 CHAIRMAN HEllCRIE Cen you say it one more time? la Read it from the top. 19 MR. OSTRACH: The first sentence is the same : In 20 the conduct of this hearing the licensing ocard shcc.o 21 exercise its authority to see:c to ensure that it re:sives all 22 informat. ion nece ssary to a thorough investigation and 23 resolution of the questions before it. 24 Sy the way, tha 's new language. ae're jus: adcing 25 that f:r :alenes. However, it snould a'so em.01:y i s euthori:/ 22; 196

Ohh .a 56 1 99.05.4 gsh I under 10 CFR 2.757 to prevent any undue delay to the (- proceeding resulting f rom unnecessary or exce ssive 3 crass-examinstion or f rom the other sources mentionec in t.Ta: 4 section. 5 Actually, I suppose we could take out the word 6 "other," since f ull and true disclosure isn't in that section, 7 as Mr. Bickwit discussed. 3 So delata the word 'other" from that phrase. 9 CONNISSIONER SRADFORD: I would again prefer to let 10 the regulations speak for themselves. But I don't find that .11 this paragraph -- I don't have the sa.me difficulty with it 12 tnat I did with the other because I think that the two 13 sentences balance each other, and if there's a pref erence 14 for it, I would not hold out against you. \\ 15 CHAIRMA.9 H.ENDRIE: I take it you're ' arguing 16 principally for the delayed cross-examination. I'm saiting 17 to be swept by your argumeri. Okay. Amended -- you would 13 be willing to go with an amended A7 19 CO MMI55IONER 3RADFORD: Yes. 20 COMMISSIONER KENNEDY: Gi/en the nature of :he 21 discussion nere and the sta:emen: tha: --- I mu rt say tha 22 this is a striking statement. 23 So I really do want to read it. Although 000 24 believes en balance that the procedure wculd ce legel, it 25 would be sucject to a p0:entially serious legal :hallenge 197 L. Y

199:.05.5 L 57 gsh I either as not complying with the APA or as being arbitrary /L. 2 and, the re f o re, illegal. 3 And as I said, I think that's a striking sentence. ,~ 4 MR. SI CK'MIT: Our view is that it will be unsuccessf ul 5 CO MMISSIONER KENNEDY: However, it.would be a sitrious 6 one. 7 MR. SICKh:T I do n't know if Steve would want to S address that question. 9 VOICE: I think that's to the extent that one 10 imposes a higher burden on cross-examination than would J1 otherwise be required under the Co=n tssion's present rules. 12 You might be in legal difficulty. 13 The language from the.:DA regulation doesn't, on its 14 face, imcose any higher burden. s 15 So I.think tnat I would agree with a general 16 statement that the standards set out in the.:DA regulati:ns 17 would be legal. But I would pref er Option A as Len has IS r ec o mmended. 19 COMMISSIONER KENNEDf Having neard that, I conclude 20 what I thought it dLd mean and, therefore, feel driven to 21 Option A. 22 CHAIRMAN HENDRIE: As amended? 23 CO MISSIJNER KENNEDY: fes. 24 VR. SICKWITr That's what i: meant. 25 CHAIRMAN HENDRIEL Wa have thr ee vo t e s f or ':p ti:n 3.. 22 a hD

53 199.05.6 , rs A J mj gsh I Do it that sa y. 4 a f 2 I' m so rry. Didn't I as k you ? 3 COMMISSIONER AHEARNE: No. .4 0. I d idn't know where 4 you voted. 5 CHAIRMAN HENDRIE: Ch. 6 CCX4ISSIONER AMEARNE: I knew I did. 7 Co.4MISSIONER BRAD.00RD: You voted for that illegal 8 .one, right? 9 CHAIRMAN HENDRIE: No. I voted for A, too, because 10 there seems to be -- it's no t clear to me that you'd save 11 all that much by the other one. And, indeed, the point is 12 a useful one, as we go away f. om our normal procedures. 13 CC!.WISSIONER AHEARNE: Yes. 14 C!' AIRMAN HENC.1I,E: You create more and more of a -- s~~ 15 C' MMLSSIONER AHEAANE: I'm just woncering -- wnen you 16 said -- 17 ~ CHAIRMAN dENDRIE: I've already indicated a re' uctance 13 to go :.oc far from the normal procecures oy recommencing to 19 you tna: :nis ce a single nearing instead of the two-nearing 20 v e rs ion. 21 Sc nat's okay. 22 Now the next toughie we ney as well hit is wnether 23 satisf act:.y compliance with ..e recuire ment s of this order 2A that we are now draf ting should de en issue in the hearing 25 itself. Or issues. Peter Oi.:ulated a no:s to us sa in; he 22 I99

59 I99'.0 5.7 gsh I thinks it should in part. (- 2 dould you define the in part? 3 COX4ISSIONER 3RAOF0dO: The area in which'I was m 4 comfortacle with the original proposition was what are the 5 issues about ? 6 CHAIRMAN HENDRIE: More hartaare-oriented thing? 7 CO MMISSIONER 3RA0FORO: Yes. I have not sat down S since to give the. kind of position that would set confortacly 9 into an order. I gue ss in part I'm not sure that there's 10 anyone around who shares my conc ern. Ji If there is n' t, I might still have to write it down 12 on a slightly delayed schedule. 13 CHAIRMAN HEMDRIE: I guess, well, for myself, ! 14 would,strongly want, staf f cartification of thi comple' tion ( 15 of iteas rather : nan having tnat even Oc a limi:ed extent, 16 having tnat complianc t< be itself an issue in the hearing, 17 because it just seems to me that it stretches :ne process la out. 19 I canf-define it all and foresee all of the kinds 20 of difficultles. But I can see :he potential for very 21 extensive arguments over One compliance in part anc also, 22 again, isn't there a certain amount of difficulty? 23 Let's see. I gue ss that the re is a vay to avoid e 2A closed circle, right? 25 009MISSIONE: 3RAJFORO: You san in :ne sense that -- 200 2? \\. u

N k t\\ D A ~ ID "D'l d@ of d o 60 199'.05.8 gsh i CHAIRMAN HENDRIE That you can't complete the 2 hearing because you can't comple te the hearing issue on 3 compliance? And the reason you can't do that is until the i> 4 board finally makas up its aind, you don't know absolutely 5 everything you have to comply with. 6 There must be a way to break that down. 7 COMMISSIONER KENNEDY: Jecisions won't do you any 8 gced until we resolve the question of the commission's role 9 in those decisions. 10 MR. BICKWIT: We ll, it will do you as much geod as 11 a final decision of the board, which will be followed by action 12 o f the licensee, I'm certain, in reliance upon the ocard's 13 final decision. 14 It avoids the closed circle to the extent it can ~ s 15 be avoided by normal practice. 16 MR. CASE

• We have this pr:clem in every operating 17 License hearing.

I just don't know wns: he language is that 18 the board has to find with regard to c mplet ion. 19 But it's not in the regs. You'd have te get a 20 notice of hearing for an Operating license. But I tnink it 21 says tnat they have to find reasonacle assurance tha: :nings 22 will be completed. 23 COMML55IONER XENNEDY: Wiil ce? 24 MR. CA5E: I think. That is, : nose where ycu need :: 25 fill out :ne record and exac:ly vne: ".as to ce :ene. ney ;3 e 22;; 201

D P D

• D

~ 3' N $ k u J' .S_N = e 1 61

99. 0 5. 9 gsh I

the reasonable a ssurance basis for requiring it. (' 2 CHAIRM AN HENDRIE: What accu-this more than an 3 operating license, for instance? 4 CO MMLSSIONER 3RADFORD: My intentien was to put this 5 en at least as to scme issues, emergency preparedness was 6 among one of the issues the s:aff has suggested, the one I 7 had most thought that other participants in the hearing -ight 3 have some thing.usef ul to contribute. 9 CHAIRMAN HENDRIE: It has less sceut it of the aspect 10 of count tne number of quarter 20 bolts, and Lf it's over .i l 7, that's okay. And Lf it's under -- okay. 12 COMMISSIONER 3RADFORD: No. I hac not intended to e ect a higher threshold than tne OL situation. 13 r ~ 14 CHAIRMAN HENDRIE: Secause it s eems tc me -- \\ 15 MR. CASE: They sor Onemsel es gut as to ones that 16 you needed datail and the board decides. 17 CO MMISSIONER 3RADFORD: The: would be good enougn. 13 CHAIRMAN HE.'!DRIE: Peter, ane re I ' m. going is : leave 19 it in no d=-=nt f asnion with r eg ard

:ne cer;i'icati:-

20 of ecmpliance with the requirements of the card : nan :ne 21 OL. 22 C0 'MISS!0 NER 3R ACFORD: So th at the board w:uld have 23 the ciseretica Oc say as o :nis pa. :i:ular se: Of a::icns, 24 we are -- 25 CHAIRMAN HEdDR.*Es We war. :: de essurec tr3:. L' / e 27 ~ 202

197.C5.10 62 gsh I comple ted. steps A, C, and 3. i 2 MR. CASE: Tell me more exactly what you're going to 3 have tnem do. 4 COMMISSIONER 3RADFORD: In some cases, conceivably, 5 in fact, that they have b.een done. 6 MR. CASE: I think they may do it witncut any 7 expressed language to that effect. 4 8 CO.9NISSIONER 3RADFORD: If the hearing is en that O 9 basis, that's fine with me. 10 CHAIRMAN HENDRIE: Okay. Well, I didn't prepose a J1 more casual standard than that. And that may have been a 12 massive sort of misunderstanding. 13 COMMISSIONER 3RADFORD: It's the questien of 14 certification o't c5mpliance as against that background the. s 15 board involved in tnat that's goed enough. 16 I'll take a look at the language to see if I can 17 either clearly read that into it or add whatever words are IS n eed ed. It we go ahead on that basis, fine. 19 20 21 22 23 24 25 2,c.v 203

D'P'M D*} [ 'E . b u 3 63 199'.06.I se gsn 1 COMMISSIONER KE?NEDf That's the way I thought ( 2 of it originally. Sut I come back to that question. What is 3 the relevance of that, the commission's decision we discussed 4 much earlier at the beginning of this discussion? 3 CHAIRMAN HENDRIE: You mean -- 6 C0"MISSIONER XENNEDY: Is the commission. nen, as 7 to this question, going to review whether it considers that S s u f f ic.ient ? That's what's really at iss ue. 9 If it is not, if it's going to take the beard 10 certification on this regard, tnen I'm for it. Su if the .11 question ramains whether the commission is going to nave to go 12 back and satisfy itself on all of Onese po.ints, discu ssien nas 13 been academic, interesting but not useful. ~ 14 COMMISSIONER BRADFORD: I think at that point, the \\ 15 commiss ion's.dec ision is reviewaole, I. think, within the 16 context of the record and whatever. 17 COMMISSIONER KENNEDY r Mhat I'm saying is tne la commissicn is going to reserve for itself decision as to 19 whether the board was correct in assuming that ccmpliance 20 has been at least adequate. 21 COMMISSIONER 3RADFORC: I guess.I thought you were 22 asking a different ques:lon; namely, once the beard is out ~ of the picture, having rendered i$s decision, we would review 23 24

na decision as we norr. ally sculd.

25 Then there is a separate -- ccnceivaely, a secare e 22: 204 a

o - D D g-o D Ji 64 199.06.2 J e ..t _a gsh I set of actions on which the staff is certifying that it feels (- 2 that, in fact, the necessary steps have ceen taken. 3 CO MMISSIONER KEmlEDY : That's fine. 4 COMNISSIONER 3RADFORD: I have thou ht what you were 5 asking was.the relationship of the commission to the staff's 6 certification. That is, would we have them come in as we have 7 in scma of the other cases and sit dcun and run thrcugh the a basis for tne cartification? 9 Co nce ivaaly, I guess -- 10 CHAIRMAN HE 1DRIE: When you come to the point where 11 you've got a board initial decision and if it does say, okay, 12 it can restart, if they do certain :nings, then you nave the 13 staff coming in and filing papers wita :ne board and the c o m is s io n sa ys the y've do n e the s e th ing s'.. m .l a 15 That's the point at which the 13 days, tne 7 days 16 and the 35 or all would begin to run. 17 And I pre.ume, depending on One interest of any 13 commissicner or group of commissioners, tr.ere should be a !? formal inquiry to the board, to the staff, :c ex;cune furthe.- 20 on a particular compliance iten. Cid you eneck the f olicwing 21 or whatever? 22 And sort of very much like we of ten query the staff, 23 ~out, cf course, in a se:cing cons isten: eti:r a f r?.alism of 2a

ne proceeding.

25 Sure, Okav. 5c le: 23 coun: -.e: one as se ttle c e- - r 2m,, o

- gmv a o o Ju o Ju & .1 a 199.06.3 65 gsh 1 I'll characterize the settlement as be ing that the compliance (- 2 requirements here are to be consistent with the normal OL 3 practice in a case where there is a hearing, obviously. r~ J 4 And. there's some more to be dealt with. And I'm not s re what you need to say in the order, this order, about 5 u 6 that. 7 Sut since the subjects come up, why, i t may o e -- a well,. think whether it's useful to have some language and wha 9 you would say. I'll cha.recterize it as OL standards apoly f:r 10 compliancs. 11 Okay. Next item, whether the requirements f or the 12 long-term actions should be made immediate.ly e ff ec tive. 13 You'll recall that in the other S&M orders, we did, ind eed. m ke the long-term requirements to the ' extent they .~ la a s 15 were enunciated in the order immediately e ff ective. That 16 sug9estion to me was that it is a:propriate to do it here. 17 On the other hand, here we've also mandated what is la likely to be a f airly extended period for proc eeding bef ore 19 the plant comes up. 20 And I wonder if it's really nece ssary cr useful 21 he re o r Lf, in f ac t, it wouldn't be better to leave the 22 licensee to decice whether he wants to go anead and star: On 23 those things now or Oc judge f or himself wnat the scheduling 24 is likely to ce and start t r.em in a few 70n:ns er :0-n :ne 25 li.e some place. 27 206 L.

{ r n> m 39 ng 66 199.06.4 Jc c a msh 1 I don't know. Comment? 2 MR. SICKWIT I think you ought to get a co-cent from ~ 3 the staff on.this point, on their reaction to getting the 4 licensee going on some of these actions. I certainly think 5 it would be helpful. 6 COMMISSIOJER KENNEDY: You say that if you make the 7 a ssumption that there is an even enance and no more, tne plan: S will be allowed to start? 9 MR. CASE: I do not say that witnout assump:Lon. 10 COMMISSIONER KEbuEDY: fou say tnat with One JI assumption, that the plant will be allowed to star; at the end 12 of this prer-$ ding? 13 MR.'C)SE: More likely not. 14 COMMISSIONER KESNEDY: It is more likely the decision 15 will be f avorable than unf avoracle? That's the assumption 16 under.which you made that statement? 17 MR. CASE: Yes. I don't know whether that's right !S or not. 19 CONNISSIONER KENNEDY: Okay. I just wan: to be sure 20 of the basis for your statement. 21 CHAIRMAN HENDRIE: I vo t e no. Co you add anything? 22 MR. VOL*MER: I agree with that, al:nough the 23 proceeding is really liable to be -- it might ce difficult if 24 tasy wait for the resolution oef:re tne pr:c eeding, c ef:re 25 Oney start to ce ocunb up a: the end. 22 207

D**D D'3' A JS =' 67 I 99. 0 6.5 o6 6 gsh I CHAIRMAN HENDRIE: It won't bind.them up in the end i 2 in terms of a restart cecause of the long-ter items, unless 3 they're judged, would be later judged to be of such a m 4 nature they would have to be implemented down the line, in 5 any case. 6 MR..0LLMER: P re s uma bl y, se.tting a date. 7 CHAIRMAN HENCRIE: I think the settlemer.: of a S lon9-term issue is part of the board decision here. That is, 9 this procedure. 10 COMMESSIONER KENNEDY: He's talking abcut the lessons .11 learned. 12 CHAIRMAN HENDRIE* So am I. 13 MR. VO LLMER. Which does have dates as originally r la proposed, has dates. N 15 CHAIRMAN HENDRIE: When TMI 1, wnen this or:er is 16 published and TMI ! goes under tne jurisdiction of a ocard, 17 in fact, the board will look at thos e and say the sta f f 13 thcught they ought to implement this, this, and this by this 19 date. And we can see ourselves being so achering on those 20 issues and never mind that senedule. 21 It becomes a matter of the ocard's jurisdi::icn, 22 on behalf of the commission, as long as. this proceeding goes 23 on. 21 MR. C ASE:. Cne o f the advantage s o f your 7,ak ing it 25 immediately e ff ective, i: says cased on a'.1 of the 1-f or'3: ion 22 s.

D " 7l D ? D"6D~T Y .}.' \\ w 6S 199,'.06.6 gsh 1 you have now, but no more than that. ( 2 Co you think that these long-term :nings ought to 3 ce done on that schedule? It sends ou a message to the 4 l ic ens ee in this case, and to other licensees. 5 CHAIRMAN HENDRIE: We've got the message to nther 6 licensees because it's immedietely e ffective on the other 7 plants. The lo ng -t e rm -- 8 MR. CASE: The long-terms here are different because 9 our understanding has progress'ed since we specified the 10 long-term ones on tne Other S&M plants. .11 CHAIRMAN HENCRIE* It seems to me in this case, 12 perhaps uniquely, tnere may be special considerations tha: 13 are required, that the board will require some measures, both 14 short-te a and long-term. 15 That is, in tnis case, Father than in tne run of 16 plant cases, there are likely to be specific plents -- units, 17 specific requirements. And I guess, on calance, I would not, 18 because the board will have control oc the situation, I would 19 not make the long-t ern requirenents imme diately e f f ec t ive 20 unle ss counsel's o f fice can see some acvantage in 1: tna: 21 I gue ss I don't see a: the acment. 22 MR. S ICK'M IT: I gue ss respending

that, I went ::

23 knew whether it's likely that these ections sill ce started 24

on if not crde red?

25 VR. CASE: You give :ne licensee er ex:use '. : : :: :: 2 L. 209

199.06.7 69 gsh I anything until the ocard makes a decision. It postpones those 2 long-terms by definition for two years. 3 COM5ISSIONER KENNEDY : There are two orders of s 4 dacirton here. That was the reason for my question. 5 The.first order is the macro-decis ion. Will this 6 plant ce allowed to operate under any circumstances? 7 Second is the micro, which are, okay, what are the 8 special circumstances which must ce i.mmediate before it can? 9 Sut until the first question is answered, it seems 10 to me that the licensee has been put in a situation oy an Ji immediately eff ective rule requiring long-term actions. He's 12 been put under unnece ssary jecpardy. 13 Sut if you make the snort-term immediately e ff ective, 14 he has considerable Jeopardy, too. He has to start these. N 15 right away. 16 Nithout those, tne answer to the cuestion, will this 17 plant ever ce allowed to operate, is no. So :nat he's doing 18 it in the interest of ge tting a f avorable decision. 19 The others, howe ve r, are not, unle ss we are going 20 to say that the plant can': ever cperate until the long-tern 21 decisions have oeen takan. 22 MR. CASEr This is inevitably resulting in the 23 consideraole delay of this plant implementing a long-term 24 measure, as compared :: Other.:lants. 25 co up;35:c.;3a K5:giE3y: ;iot in terms Of Operating ti :e. 22ie 210

D nD *' 6' ~ 6b ~ l9d.06.8 .A 70 ,gs h I CHAIRMAN HENDRIE: I guess -- 2 CO MMISSI0 DER KENNEDY The other plants will have 3 been operating all the t.ime witnout these things. 4 MR. CASE: The time was basically chosen based on 5 the time it wculd take to implement these things. 6 CHAIRMAN HENDRIE For wnatever that time was, 7 Judgment is -- S COMMISSIONER KENNEDY The plant can be opera:ec 9 safely until it's completed. 10 MR. CASE 'Yes, except the implementation times of J1 lessons learned are calendar times. 12 COMMISSIONER KENNEDY I realize that.

But, 13 conceivably, they could be the same?

la CHAIRMAN,HENDRIE: They resdit in certain periods of 15 operations for a number of plants. For instance, in this one, 16 because of the time that it will take to get to a restert 17 dec is io n, that ycu would have any longer operstlng time 13 without..the icng-term fixes and factors, you'd have a gccc 19 chance, I would tnink there'd ce e gccc chance you'd have 20 leJs. 21 My only thought here, perr.aps coming away f rom 22 i mmediate. e f f ect.ive ne ss o f the lo ng-t err.. provisions, is that 23 it mign: ce useful te let this proceeding ge: cranking a little and ' egin to see whe re things sha:e uc. 'e soma Of the 24 bit c 25 staff reconnendations, there ce a new issue from lessons 2\\\\ a

_110 oo o .2 199.06.9 7l .gsh I learned on longer term things in a couple of months 2 And since we aren't talking about operation within 3 that t ime-frame, it might be useful to see how those things 4 come along bef ore ordering that they be done. 5 Let me see. Does counsel have anything else to 6 aod? 7 MR. SICK'dIT: No. I think you're f ocus ing on S precisely the right i ssu es. 9 MR. CASE: Does it raise the question why specific, 10 in this order, long-term issues at all, be they immediately JI effective or not, things that have been done? 12 CHAIRMAN MENDRIE I :nink that's a f eir que stion, 13 as a matter of f act. One might choose to reduce tne commen: 14 about longer term items in this order to nothing more than ( 15 a paragrapn, which. points out that tne so-called short-:ern 15 items are not the last people will hear of requiremer,ts or 17 other units on this or other units. IS Let me see where connissioners' views lie on -he 19 question, whether the requirement on the long-term a: icn 20 snould be made immediately e ff ective in this order. 21 COMM LSSIONER AHEARNE: I think the requirements for 22 other than the short-term items should be the sa e On this 23 plant as tney are on the o:ners. Il 5o I would jus-have a phrase saying tha: hatster 23 requireSen s are iaid d',' ne -- l e i d O n O !.".e r Op 9 7 2 in; ?le9:5 22io 212

72 199. C6.10 .gsh I with operating licenses would also ce laid on this one, whica 2 is another way of saying that coth these, which are now 3 immeciately eff ective, should be innediately e ff ective. 4 And then the others addre ss them to other plants. 5 That they also apply to this one. 6 CHAIRMAN HENDRIE: That would 'oe a set of languago 7 which, in effect, would say with regard to longer ter-8 actlons, wha tever is required for essentially similar units 9 by the staff is required here? 10 COMMISSIONER AHEARNE: That's right. Il CHAIRMAN HENDRIE: Is that practical? 12 MR. SICKWIT: It is if in each case we have an 13 iSentity of requirement. The minute you would start having 14 .one requirement for one plant and one for anothe r, you're 15 going to be lost as to what tnis provision means. 16 C09NISSIONER AMEARNE: 'Ay po int is that some of these 17 items in the long tern which are ones which would be l3 immediately eff ective because they are similar to one s already 19 lald out, it's another set thet ere not ye: recuired in all 20 places. 21 My point is -- I would also nave scme statemen; in 22 there to enable (inaudfole) lease on other opersting plents, 23 the requirements, f or exam =le, coming out of the Madison 24 task force. 25 MR. BICXWIT: It reca ly would ce be::er if it's 2,L 213 v

73 197.C6.11 gsh I not self-executed, just in case we run into scme complications ( 2 where you could simply cbligate yourselves to address the J immediat e ef f ect ivene ss. 4 COMMISSIONER AHEARNE: dhat I'm trying to avcid is 5 a point that I thought Joe was making, was that ence the 6 board is established, that any actions on plants have to 7 come under the purview of the 'ccard on. this plant. And I \\S 3 was trying to address his concern that that would then i U 9 automatically delay a lot of actions in this plant, try and 10 avoid that. J1 12 13 14 s 15 16 17 13 19 20 21 22 24 25 22' 214

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74 199.07.1 gsh I COMMISSIONER BRADFORO: I think the principle tha t 2 needs to be done at other plants should be done at this one 3 is certainly valid. I guess, tho ugn, that I share Dick's 4 concern and maybe the way to put tne two together is to 5 state the first proposition but leave tha timetable to the 6 toard. 7 CO MMI5SIONER KENNEDY: That I would agree with. 3 Obvicusly, I would not wish to see this plant operate overtime 9 without all actions. Like I simply would not count on the 10 plant operating overtime without all the necessary changes .! I having been made. 12 Th e only q ue s t io n is can we? I even question wnether 13 we can legally force someone into a position wnere he must 14 investigate. He has no cho ice. He must investigate to avoid r. 15 being in conflict wite our rules and regulations and orders 16 in something which he may not be able to use. 17 And we know that. 13 I just think that it is a questionacle legality. Id So, I think if we een do sonathing :ne way Peter 20 is sugge sting it, I'm perf ectly cemf ortacle. 21 CHAIRMAN iENDRI5 It must be 12;al. The governmen: 22 does it all the time. 23 CO.T4I55IONER KE. TIED (: Tna: :oesn't make 1: 1ega1. Zo It is only untti such time as peccie ;et to court and, Of 25

urse, we note, I wo ul d a dd, ne: :ne court's calen. cars are 22' 215

9 >lnn cv: n u ll7l3 , j. 75 j @ _ n )", [l g u 199.07.2 _b a J sh I rather full. 2 CHAIRMAN HENDRIE: I do n' t kno w. How does Peter's 3 elaboration strike you? 4 CO MMISSIONER AHEARNE: I'm still in favor of having 5 those things go into effect. 6 CHAIRMAN HENDRIE: You're closer to an immediate. I 7 don't know whether you're quite in agreement with an immediate S e ff ectiveness language for the long-term actions or some 9 adjustment to it. 10 00 VJ4 LSSIONER AME ARNE : As f ar as those long-term and 11 other actions that may be required, what I am for is treating 12 this plant as though it weren't in the hearing. 13 COMMISSIONER XENiiEDY: If it weren't in a hearing, l'4 it wouldn't be operat'ing. 15 CHAIRMAN HENDRIE: If you want to let it coerate. 16 C09NISSIONER KEN?iEDY: If it we re, I would agree 17 witn you. IS CHAIRMAN HENDRIE: If you want to let it operate nile the hearing goes on, why, I'7 preparec to vote with you 19 v 20 and then go en to tne point at hand. 21 Co.W4 LSSIO?iER XE.'CiEDY : Tnat's enctly :ne logic If 22 you're going to treat it lika other plants, you have to put -- 23 C0K4I SIodER AMEARNE: I'm saying as f ar as those 24 actions, because a number of those a::icas, I think it w:uli 2^ cencove us to make sure :na they gr.: started. 22;o 216

f _a ~ 177.07.3 76 gsh I C3MMISSIONER KENNEDY: Only if you're making the 2 presumption the plant is going to be allowed to operate at 3 some point. 4 COMMISSIONER AHEARNE: I'm making two assumptions 5 A, that there is a chance that the plant wi.ll be allowed to 6 operate ac scme points and B, that given that, it would be 7 operating. 3 I would be interested in having ; tad these changes 9 made in the plant as scon as possible. 10 CHAIRMAN HENDRIE: What do you do about the .I l possibility that the board may, in fact, end up requiring 12 somewnat different conf iguration f or a long-ter-imorovemen: 13 than you would have if it were -- 14 CONNISSIONER SRADFORC: That won't happen if we s 13 have told them not to. I.think John's proposition is that 16 we tell the board what the configuration is. 17 COMNISSIONFR AMEARNE: No. I'm saying we te ll the IS licensee to make the se changes. If the board would come out 19 and say, as far as long-term changes are concerned, we 20 believe that this is a requirement. And that di ff ere nce, in 21 some.significant way from what Director Senne:: has already 22 told plants to do. 23 Wete got a broader question for all : nose plan s 24 Na: have given this direction to go this way, whether or not 25 we sr.ouldn': change 1 to go this other way. 2-2i7

v _a .77 I 99 '. D 7. 4 gsh I I don't tnink that that's -- ( 2 CHAIRMAN HENDRIE: Are you happy having M plus 1 in 3 the group of plants that now nave to ce changed where you 4 could have had N? 5 CO MM I SS IONER AME ARNE : I don't think that's -- I 6 would ce happier knowing -- balance that against the problem 7 that if the plant d:es come c.ff, that unless I've had them S making these starts on these changes, it's going to ce ? that much longer before they get to it. ID CHAIRMAN HENDRIE: I'll count you as an immediately 11 e ff ective vote. 12 CO MML55IONER AMEARNE:,Vith that slight modification, 13 which is not the same thing as immediate e ffectiveness. 14 CH AI R.4 AN HE.'i.D R IE : Could you resta e? s 15 CO.'.WISSIO:iER 3RADFORD: Yes. I would say as to the long-term issues, that if the plant is, in fact, restarted, 17 we would centemplate that it would do so under the same IS r egime n t as other plants to wnich these actions apply. 19 5ut due to the fact tnat the matter is in nearing 20 and that both the certainty of restart and the timing of 21 restart are in question, we would leave to the ll:ensing 22 board a decisien as to the timetable as ordered oy t.ne 23 C 0 mm iss io n. 21 If th2 licanses p.afers

;c ansed and undertake 25

he a::iers at nis Owr risk, tha:'s a'1 ri;ht, teo.

22;o 218

~A ' I) D'? D I L\\ ~~ 78 191.D7.5 gsh I COMMISSIONER KENNEDY: I would esrtainly not suggest ( 2 tha t we no t let hi.m do it, but rather. that that be an 3 option. 4 But he, likewise. might not be penalized for it. 5 CHAIRMAN HENDRIE: Have you got. this version? COMNISSIONER 3RADFORD: Ask him a question. 7 MR. B ICX'ilIT Are you ordering that anything be done, a simply telling the board? 9 CO NNISSIONER 3RADFORD: No. 1 hat I'm doing is telling 10 tne board that the conmission views this plant in this 11 way, with regard to these actions. 12 MR. CASE: There's a specific l is t of long-term 13 things that would go along with this language. 14 COMM LSSIONER T.ENNEDY: It'sthefo,ng-termlist that (_ 15 we already have. 16 '4R. OSTRACH: Are you suggesting tnat the board can 17 order the immediate eff ectiveness of these actions during la the hearing? 19 MR. CASE: The board can order wnen they should ce 20 imp le me n t ed. The board would de termine that. 21 MR. CSTRACH: It wouldn't or:er it at the cegirning? 22 COT 4ISS!0NER 32ADFORD: To the extent that the staff 23 has associated timetables wl:h tnesa = -'ons already, and :na 24 they will give most of th2 li:enseas, say, six Onths 170-25 new. And if i 's tne a::lic an t's :ho ice, :ne licensee's choi:e 22 o 219

i 79 199. 07.6 gsh I not to begin the actions until the licensing board issues its (s-2 order, then, just off the top of my head, it would seem 3 reasonaole that this licensee have six months ficm that time. 4 MR. CASE: The board could say I'm sorry, tnat's a 5 sho rt-te rm, item. Now you've got to have it done before it 6 is started. 7 CHAIRMAN HENDRIE Supp ose it's a s ix-month item. 5 COW 4ISSIONER 3RADFORD: Yes. That possibility is 9 there also, of course. The board feels that the timetable 10 should be shortar, well, for any number of reascns. They can 11 do that. 12 CO MMI5SIONER XENNEDY : And those kinds of questions 13 would ce subject to motion between the board and the licensee. 14 MR. CASE Arguments by ill parties. \\s) 15 CO MMI5SIONER XEMNEDY: That's perfectly reasonable ~, 16 it seems to me. 17 CHAIRMAN HENDRIE: Coes it get to ce -- let's see. la This, then, is a board decision? 19 MR. SICKWIT: An issue in the hearin. 20 CHAIRMAN HENDRIE It's an issue in the hearing. 21 dhat Ste ve is frowning acout is how does :ne Ocard make any 22 schedule stick until it's published its order. has completed 23 tne problem in the hearing and published its final order or 24 its initial decision? 25 '4R. SICXWIT: Unle ss we can puolisn a par:12I decis i:n 22i 220 a

199.,07.7 f 80 a gsh 1 CHAIRMAN HENDRIE: Unless we set this decision up ( 2 in a special way with that and let the board come out a way 3 on it and let the board review en it, it may not be 4 imple m e n tabl e. 5 MR. OSTRACH2 In another part of the order, we've 6 already directed the board to the short-term issues firs and only then, approached.the long-term issues. 3 So, I mean, that. would be wnat was lef t before them 9 at the end.. If they did issue the remainder of their decision 10 on the long-term issues and they p.icked a timetable, presumacly 11 the lessons learned timetabl.e of January 1, 1981, is based on 11 people working, starting right now. 13 We're talking about 18, 17 months frcm the" time you l-tell them to go. ~ .5 So, TMI 1, assuming the board used that timetaole, 15 would have to be given 17 months to comple te the lcng-term 17 actions, even assuming they're the same. 13 So that would be the last plan the United States 19 presumably would have for a long-term action being implemented. 2C MR. S ICKW IT It wouldn't be pcssible f 0r an order 21 to be in effect until the board reached a partial decision, 21 it came up to the commission and the commission made that 23 decision? 24 CO 'AMISSIO.iEl 3RAOFORD: I just don >: see how we can 25 have it bc.' ways.

na: is, condue: e hearing of a.ine men:hs 2210 221

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_2 oc o 31 199.07.8 ash I to a year in which there is the possibility that the plant <\\ - 2 wouldn't be allowed to restart. And at the same ti.me, the 3 board were to take a bunch of actions that it could, I would r 4 think, would never take for res. tart. 5 COMMISSIONER KENNEDY: How could it? The public utilities commission would be after it. 7 MR. CASE The distinction between the short and S long term, that argument falls because that's just wnat you're 9 doing with shor*. term. 10 You're ordering them to do it with no guarantee that the plant be allowed to operate. 12 MR. SICKWIT: You're not doing that. You're saying 13 that the only way that they can get the plant up is if they 14 do it. You're not ordering it. 15 MR. CASE In practice, you arv. 16 MR. BICKWIT: But they're not sucjec. to any kind 17 of penalty if they choose to. IS COFAISSIONER 3RACFORD* If you chcose to wait until 19 they have a board order, we can restar by a :ertain amount. 20 COMMISSIONER KENNEDY: The fact that they know by 2! the outset. 22 COMMISSIONER 3RADFORD: Tha t 's r ight. 23 MR. OSTRACH: In effect. Comnissioner, you're 24 pr:pesing no i 9aciate effe: ivea.ess a all. Just leaving :nis 25 issue as any etner issue. The coerd wi'.i ::nsicer 1:

c. a n :ne 2210 222

32 199.07.9 ' gsh I board decides to order it. It will set a timetacle by which L 2 it must be completed. 3 COW 4IS5IONER BRADFORD: That's r ight. I guess I'm 4 going a little bit oeyond that as to giving tne board.the 5 guidance that it doesn't expect this plant in the long run, 6 Lf,it's permitted to operate, not to operate under the same 7 regiment as etner plants to whom those actions a: ply. 8 MR. SICKWIT As to the legality of ordering that 9 immediately e f f ec tive, I wouldn't subscribe to your statement. 10 Was it your statement that it was procably illegal? .I l COW 4ISSIGNER KEWEDY: It seems a question of 12 legality. 13 MR. SI CKWIT: I wouldn't subscribe to that. You would 14 be in on a court test and you'd be trying to establish that N-15 this really was health anc safety related and likely to ce 16 of scme benefit from that standpoint. 17 COMMISSIO:lER XE.'INEDY : My point is that I find that 13 awf ully hard f or myself to argue. I can't convince myself 17 of that unless I make a simple presumption. That pre sum p tio n 20 is that at scme point, that plant will ocerate. 21 22 23 24 25 2210 223

eeg..em CR 6199 48 LECNE/PV l 83 I 1l MR. BICKNIT: I think the Commission would be making g s-2! some assumption along those lines. It would not have to be of I 3; a hundred percent assurance to sustain the action of the court. 4' COMMISSICNER KENNEDY: But it's got to be a reasonable 5 presumption. Okay? That's what Ed said. He said there would i 6: be more chance than not. If we ' re prepared to make that assump-7,; tion, stated clearly, if we're prepared to do that, then I have : I. i S' no difficulty, I guess, with an immediate effectiveness order. I 9' But that's different debate. Cne c uld get into a grea' t 10 l philosophical argunent about that question. I don' t think this 11 h is the place for it. l 12 { COMISSIONER.MIEA31TE: I think, though, that's slightly - s i -13 ! different. I believe here are a number of actions that are on I 6 i i 14 a longer time scale. They are only on a longer time scale i 15 because the conclusion is it's going to take a longer time to 16, get there. Were they able to be done socner, they would have i 17, been asked to be dene scener. So, they are all items that, in i la the conclusion of the 1.2R task fcrce, is -- are items that 19 ; should be done. 20 ' So, then, at is the question of hcw scen can they be 21 done. And what we are essentially saying is : If we allcw this 22 not to go into effert immediately, is that for this plan:, af ter 23 l the Scard has reached its decisien and if the Ccemission, upon review, and the board bcth agree that the plant shculd be alicwed d sc..s.cerc =.ea, m. me. ^5 ' to up, there may well then be a set of items which we could have. 22i3 224

pv2 i 84 l I had done -- knew should have been done but will have allowed i 2 not to have been done. 3l i CG5CdISSIONER KENNEDY : That's the dil=~ma. That's the i 4., argument that this should be treated like other plants. But it's i Sl not like other plants; that's the prcblem. i 6: If we can put it in the same posture as other plants, 7 then everything's right. It all comes out even. i 8j CHAIRMAN EINDRII: I tell you what. After much debate, 9l I guess I am ending up back on the 4 ediately effective side. l 10 ' Counsel, let's see. Ecw dces it read now? What dces 'I the draft say now? 12 ' MR. BICKNIT: On immediate effecti'veness of long-term' 4 N. 13 ' orders, t 2 dradt dcesn' t order anything to be done in "'-= ' ~g ~ l 14 ;l term. 15, CEAIMLU EENDRII: All right. But do you have a fair 16 lidea from the discussicn en the jcb site what the language wcul.d i 17 be if it were that way, if we wanted to go tha: way? la XR. SIC CIT : Yes. 1 19 f.I CHAIRMAN HENDRIE: Would you write that down, and 20, would you also write dcwn the language or what it would Icek like, 21 Peter's version, and I don't know which one to put in the next 22 ) draf t. Put them bo in, I guess. 22 MR. CSTRACE: There are.hree mergers. I 1:e ' ieve 24 Com=issioner.'diearne's propcsition was differen: from simple sc

.c.,..

a.oo,ws. inc. - 22i0 225 25 i= mediate effectiveness.

ov3 I ~ 85 I 1 CHAIRMAN HENDRIE: No. I have moved over to John's i 2i position. l 3! MR. CASE: I believe his was simple i:nediate ef fec-. I f 4i tiveness. r 5; COMMISSICNER 7"? A3NE : No. Because, for example, i 8 6l Carlton hasn't yet told all the other plants to do the task i i i 7l force item. i MR. CASE: He vill, next week. 8l 9, COMMISSICNER AHEARNE: When he does, then it would 10 be. That's the slight difference. l i 11, MR. OSTRACE: The two options are that sort 'f i:=edi-12! ate effectiveness, or Co=missione; Bradford's proposition. l 13 ! MR. BICKWIT: And no immediate effectiveness. That l 14 l :s one c: the options. I==ediate effectiveness as described.. 15 ' No i:=ediate effectiveness. And the Bradford option. Those 16 l are your three options. 17 CHAIRMAN EINDICE: Well, I don't think I have a v0:e 13 for but two. 19 i MR. BICKNIT: I think I have a vote for no i==ediate i 20, effactiveness. 21 !l CHAIRMAN EZ'.iDRII: Dick, I thought you were agreed it i 22 i with Peter? a 23 ' CCMMISSIONIR KENNEDY: I think I agree with Peter 24 when I see this language. 2 -nm m.oor m. inc. ; 25 CEAIRMAN EENDRII: The Bradford-Kennedy axis has 2210 226

c.v4 i l 86 9 't% ' y l l D*P P 1l struck again. ,} a 2 COMMISSIONER KINNEDY : You know, if ycu let emotion l 3 run away with your logic, it always happens. j 4 Counsel, I refer to your recent draf t order submitted ; 5 to us under date of July 25, page 7. And from that point for-I i 6 ! ward is a discussion of the longer-term actions. i I MR. SICKWTT: Yes. But there's no order requiring 7 i i a! that they be done. t i 9 CCMMISSIONER KINNEDY: That's the question we're t I 10 ; discussing. i 11 ! MR. BICKWIT: I understand. i 12 ! CHAIRMAN HENDRIE: No. I just asked h1.: if.there i. i, j ,13 was effectiveness lariguage in. it. t-14 MR. SICKWIT: There is not, because there isn't any 15 forder language. i 16 ' CHAIRMAN HINDRII: Okay. Well, I think you've got I 17 the Ahearne version and a 3radford version at the moment. I I. 18 CCMMISSICNER KINNEDY : That's not corr =ct. It says 19 ! the Commission has additional concerns which, thcugh they need I i 20 ' not be resolved prior to operation, must be satisf actorily 21 ; addressed in a timely manner. i 22 MR. BICKWIT: In the operative sectic.,n, vi-h respect I 23 to the order which is Rcman III, where it says it is hereby i 24' ordered, there is no reference to the longer-s:- actions having: Ac.a.:== =eoc, in. iC 23. to be done. 22i1 227

pv5 s 9 ~ i. 37 I COMMISSICNER KENNEDY : All right. You win this time.' i s 2 i CHAIF.M.AN HENDRIE : Okay. I have, once again, led [ i 3 this Commission squarely up the hill to an impasse. But I think' e i i 4 we new have, or at least as soon as Steve manages to figure out j i 5i what the ends of the table mean there, we have two versions. And t I 6' I expect, the next time around, we'll be able to decide. i 7! Three: Whether the Commission should remove from the, i' 1 8, order any implication -- 9' COMMISSIONER AHEAPNE: When do you intend to break l 10 this? II CHAIRMAN EINDRIE : Well, I believe I have an appoint-I2' ment at 2:00. -l COMMISSICNIR AHEARNE: My secretary has given the I4 impression that 12:00 might be a gced time. I have people 15 ccming in at 12:00. 16 COMMISSIONER KENNEDY: I don' t knew what the issue is in Nc. 3. If we can start and el' nate that -- i I8 COMMISSICNER 3?ACFORD: I think I raised it in the 19 first place as to what was en page 1 of the crder. 20 1 MR. BICKNIZ : Commissioner Gilinsky was gcing Oc .IiIraise somethine since then. t ..l COMMISSIIUZ2 KENNEOY: If this :.5 his questi0n, I 23 ; suggest it would be useful if he was here, which I note he is ~1 not. ace Ka: eras #ecer ers. Inc. CHAIF.".AN EENDRIE : Gec d 9.cught. 2211 228

..--- -...~._ '. pv6 l l i 03 I (. 1 COMMISSIONER KENNEDY : Since I spent many years t' s_ 2, debating issues whi ch were raised by others when they were not i l 3 there, only to have.the opportunity to have to do it all over 4I again, I suggest it's a very wasteful process. l 5l CHAIRMAN EENDRIE: Now, Monday next, I think we may 6 l have two Ccemissioners absent. That hardly makes Monday a I. 7i p racticality. Tuesday, we have a couple or major a:: aces making e I i 8 budget presentations, and it's going to be a long, tough day at ' i 9l the table. i l 10 : Can you stand to try to squeeze in further considera ' 11 l tion on this order? I 12 ! . CCMMISSICNER AEEARNE : Yes. i e 13 i CHAIRMAN EENDRIZ: On Tuesday, it's going to be a. 14 long, tdugh day at the table on the budget. I am just asking t 13 whether you feel you can stand TMI-l order discussions. I IS j COMMISSICNER AEZARNE: tes. Particularly if the 17! counsel will have drafted up scmething that would help us. 18 I CHAIRMAN HINDRII: Yes.. I must say, the memo I get i 19 last night, I thought, for =e, managed to put those three itams 20 that they treated in shape, where I felt we could do something, 21 ] and we have done something about them. So, I think it was very I 22 helpful. I 23, All right. Tuesday? 24 COMMISSICNER KINNEDY: Let's see. Cn Tuesday, is s.-F.e., a a eco, en inc.. c 25 the first order of business, if =y calendar is correct ay 22 29 * :' <. 1 u

pv7 09 s I is the 27th. Tomorrcw is the 28th. Sunday is the 29th. t l 2! Well, 30 days after July 2 gets us to the 31st, i 3 through the 31st. So, Tuesday as the first order of business, 'q 4 we will have to have an order which does something vis-a-vis 5i the current order which expires on that day. I t 6i MR. SICKNIT : I think that would be advisable. I 7{ COMMISSIONER KENNEDY: Okay. So, I guess it would i i 3i have to be the first order of business, since the order that we ; I 9' are supposed to be issuing on that day is one whicn, according 10 i to our previous order, wi.ll describe our concerns, you knew, 11 l the things we are talking about are not the concerns. We have 12 l never described those yet, and we still owe the public an order i ,13 l in this regard. t 4 I 14, CCMMISSICNER AEIA321E: The concerns were described. 15 i COMMISSIONER KENNEDY: No. We11, in -he draft -- i i l 16, COMMISS!CNER AEEARNE : Yes. l 17l COMMISSICNER KENNEDY: I know. But we haven't been a la discussinJ those for several days. So we need to decide h.at this i 19 ' order that we w41' di scuss on Tuesday, hopefully, will be about. i 20 Unless we wish to be in violation of our orders. 21 I vote "No" on that issue, if given the opportunity. i 22 ' CHA*?J!AN EINDRIE : Well, you have to prepare for us 23: a suitable fill-in-a-slot order. It's a pity Leo isn' t here. 24 ' He's had a lot of experience on that, from S-3. Probably kncck Ac Ners =eoor en. :ne. : ,5 out what we need. 4 22 0 230

pv go l j! Let me ask. At the mement, the schedule says 9:30 g 2f to 12:30, NRR. 2:00 to 5:00, research. What do you 'ki nk you ~ 3, could stand bv. wav. of scheduling? What I would like to suc. gest l l ~ ' we do is to move opening time up to 9 :00, make a bold pronounce ; 4 i 5; ment that I intend to bang the gavel and go at 9:01, plan to i 6 terminate that at neon, allcw people 30 minutes for a sandwich, I 7' ccme back to the TMI order at 12:30, and run until something i ! like probably 2 : 30, you know, allcw walking dcwn the hall break,l 3 9, and then go till 5:00, 5:30 on research. 10 ' COMMISSIONER AHEARNE: That's fine, Joe. It's also i 11 fine if the three of you wish to centinue going through these i 12 ! points. I have no prchlem. sf COMMISSIONER 3RADFORD : I have to go, also. 13 ! I 14 CHAIRMAN HENDRIE : I will Orcn.o w th t the next TMI 15 that we meet on Tuesday, along the lines Sam, please amend the 16 ' schedule and let pecple knew. It will be a brutal, long day l 17' at the table, I must say. But I think we need to get to it. la Ncw, Counsel, we have gene through items Rcman I, II, 19 and III, and decided what to do about them, at least on a tenta-- 20 j tive basis. I would ask for a redraft incorporating those j 21 things. We've al. c dealt with item Arabic 1. On Arabic 2, 1 23 ;' we at least cans dcwn, and you have scce work :: de tc gee with 241 the twc Cc=missioners cencerned and get that aspect, language I %CS EfC 9701 2900f* Ort, i f*C. 25 for that. The cwo sets of language for the icng-term i =ediate j 221J 231

pv9 D

• ]D D '3' Y f

, S..\\ i a o Ju o al l 1 effectiveness. 2 New, on item 3, that, in fact, deals with some dis- [ 3 cussion of what are the Cen: mission's bases for concern, and are ; sb 4l they all enumerated in this order; are they limited to the things 5l that are in the draft, or aren't they necessarily limited to the 6 things in the draft? l 1 7i I think some cccment from you and a further memorandum I i i 8; based on the good work that you got out of last night might be 1 9i helpful in shaping the views here. I 10 l Let me just suggest that the alternatives seem to me Il ! to be: A, that the concerns, language.and list of actions 12 ! language which are closely related and are essentially the same 7.., i _13 l thing, just stand as they are; and that what we either understand x I i Id or include as specific language, understand that the sufficiency 15, of these items is at issue in the hearing, maybe at issue; and i 16 that they represent a provisional list in some sense. That is, 17; if we knew of other concerns, if we could enunciate other con-I8, cerns at the ucment, we'd pu t them dcwn; but these are che con-I9 i cerns and the actions that go with them that we have been able 20 ; to enunciate. 21i We den' t assert chi.t the preceeding itself may net 1 -I curn up cthers, and these wil'. be censidered. 1 23 1 And the other way to go about ic wculd be Oc take I 24 all c: that stu:: cut c:.ne crder, tc ceal w:.tn-tne concerns .n w,ewas a.oo, m. a c. { oc-a more general way, maybe just that there's one paragraph there 22iJ 232

m 0{h j 9-I with one, two, three, and so on. And then say the actions 2l I required to cure those are whatever the staff submits and the 3! board determines from the proceeding are necessary, sort of s i 4' j throwing it all back into the preceeding. I i 5l And I think I don't propose that, you understand. i 6i But in talking arou.d, why, I found some feeling that that would: I be a way to go. How practical it is in terms of trying to pro-i i 3; vide some guidance to the board in the proceeding and getting 9 I on with the thing, there may be scme down sides to it from that i 10 standpoint. i II i COMMISSIONER KENNEDY: Item 6, it seems to me, should 2;I be dealt with in conjunction with item 3. g I 'O ' 13i COMMISSIONER AEIA3NE : Actually, item 6 is already I I4 f incorporated in my option. i I3 ! CHAIRMAN EINDRII: Yes. I think that's right, i I 16 i COMMISSIONER KENNEDY: Yes. I II CHAEA%N HENDRIE: Gcod. You can remake this lis: I8 and note that I have 6s collapsed upwards. i l COMMISSICNER KE NEDY: No. The question still arises.- 20 i if, in fact, a choice other than that preposed by 21 Cccmissicner Ahearne is chosen in respect tt question 2. The 22 i question still arises. '3 CEE RMAN HENDR'E: Okay.

• 4 COMMISSICNER KENNEDY:

And it ought to be discussed, w.eerse = cohm, inc. 'l u.. "1, it seems to me, in conjunction with discussi0ns Of item 3. In l,

'pvil l 93 I 1! connection with item 4, if you're going to discuss it, I would s t i 2l appreciate a discussion which didn't go just to the question of i 3' whether -- although that's a very interesting and fundamental J. l 2i question -- that go with the question and, if so, how. i 5; MR. BICKWIT: That was the intention. 6 COMMISSIONER KENNEDY: Okay. i 7-And as to item 7, one further request: If that is to' i a be discussed, I would like an unequivecal statement of law frcm 9 the counsel indicating our authority to provide such. I please i 10 underline the word " unequivocal. " 11 CHAIRM.Mi HINDRIZ : I think v.ou have overconstrained 12 ' the system. I am non sure it's capable of producing a solution. ;, i \\- 13 ComCSSICNER KENNEDY: I believe we can or should i i 1.t l discuss the disbursement of public moneys. It must be legal. 15, The Comptroller General has indicated that many, many, many 16 times. 17: MR. CASE: Nct necessarily unequ:.vecally. la COMMISSICNER KENNEDY: Ch, unequivocally,.. deed, 19 ; in my view. 20 GAIRMAN HENDRII: See what you can do helping us cut l s i 21 i with a memorandum en these icems. 22 MR. CSIRACH: Rcman II on disccvery was not resclved. 23 CHAIRMAN HENDRIE : Yes, ic was. Rcman II. 21 MR. CSTRACE: Ixcuse me.

c..cere meeor m. :.s -

25 CHAIRMAN HENCRII: In your redraft, you go for che 22.o 234 4

pv12 + om o a D D Iu g 4 9A-l _co o a l 1' li i ted discovery language, just as you've got it. w 2 MR. OSTRACH: Rcman III, discovery. 1 t [ 3I CHAIRMAN HINDRII: Let me go ahead on discove.m.(. I i t 4: have got a vote of two, one and one for limited discovery, the i i i 5 tightly monitored option, with a ce=pilation sentence, John's. 6l And just do it like the rags with a cc=pilation schedule for 7l Peter, and Vic can cc=e in and create deadlock or whatever, along 1 I i si the line. i 9! And what I have said about these things, you ought i i I I 10 ' to get alternative languzge in your hip pocket for the Ahearne ll i and Bradford versions of discovery. And I can help you with l l 12 ! that. That's on e of the few places I can help, if ycur notes i i -131 are confusing, i I 14 ! Cn the review process, we've got a 10, seven, 35-day 15 ' overall for Commission action en listing i=nediate effectiveness. i 16 l And cross-examination, it's the close scrutiny by the board 17, version, as amended. la MR. CSTRACE: I have thre. 19 ' CHAIRMAN HINDRII: Okay. Cn 1, Arabic 1, it's CL 20 stm dards apply. We've got a deal. 21 Nrv, I don' t knew quite whether, A, there needs te l'a = y, or, 3, what the language is. But -- : don' t knew. 23! .MR. CSTRACH: I have scme language. q 24 :I CHAIRM;JT HINDRII: The meeting is, in fact, over. ses m e,e = roa,,n. :.-e. 25 ' (*4here upon, at 12:15 p.m., the meeting adjourned.) end43 1 2210 235}}