ML19269D421
| ML19269D421 | |
| Person / Time | |
|---|---|
| Issue date: | 05/02/1979 |
| From: | Gilinsky V, Hendrie J, Kennedy R NRC COMMISSION (OCM) |
| To: | |
| References | |
| REF-10CFR9.7 NUDOCS 7906040017 | |
| Download: ML19269D421 (79) | |
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IN THE MATTER OF:
PUBLIC MEETING DISCUSSION OF S-3 RULE MAKING
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Place. Was511ngton, D. C.
Date. Wednesday, 2 May 1979 Pages 1-78 N
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This is an unofficial transcript of a insettng of the Unf1Eed States in the Nuclear Regulatory Commission held on 2 ev lo7o The Comission's offices at 1717 H Street, ii. W., Wasinegr.on, D. C.
Th'is transcript meeting was open to pubite attendance and observation.
has not been reviewed, corrected, or edited, and it may contain inaccuracies.
. The transcript is intended solely for general infoma'ticnal purposes.
~
As provided by 10 CFR 9.103, it is not part of the femal or infomal record of decision of the matters discussed.
Expressions of opinion in this transcript do not necessarily reflect final detaminations or beliefs.
No pleading or other paper may be filed with the Ccmission in any proceeding as the result of or addressad to any statement or arg.: ment contained herein, except as the Corr.ission may authorize.
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1 UNITED STATES OF AMERICA l
2 NUCLEAR REGULATORY COMMISSION I
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PUBLIC MEETING 4
DISCUSSION OF S-3 RULE MAKING 5
I 0
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Room 1130 l
1717 H Street, N. W.
l 8
Washington, D. C.
l 9
Wednesday, 2 May 1979 10 !
The Commission met, pursuant to notice, at 1:55 p.m.
11 BEFORE:
12 DR. JOSEPH M. HENDRIE, Chairman
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13 VICTOR GILINSKY, Commissioner 14 RICHARD T. KENNEDY, Commissioner 15 PETER A. BRADFORD, Commissioner 16 JOHN F. AHEARNE, Commissioner 17 PRESENT:
18 Messrs. Chilk, Cunningham, Fouchard, Sege, and Slaggie, i
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l' CHAIRMAN HENDRIE:
All right, why don't we come to 3I order.
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The subject before us, as announced this morning, is l
5 discussion of the S-3 order.
We had previously, the latter part 6
of February, come to agreement and directed preparation of an j
7 order, the language for which is drafted by the general counsel, '
8 came to us in a memorandum of March 29.
9 In the circumstances, it was clearly difficult for the-10 '
Commission to pay much immediate attention to it. And because 11 of various comments on the Order, we found that on Monday we had' 12 good reason to extend the interim rule for another short period i
i 13 to allow us to meet,primarily at Commissioner Bradford's request',
i 14 and discuss his proposed changes.
I 15 My understanding was that the other Commissioners had 16 concurred in the Order, as drafted by the general counsel.
I 17 would propose that we have such discussion as seems appropriate 18 and that we try to move to a decision vote of the Commission this 19 l afternoon on the Order.
1 20 !
COMMISSIONER GILINSKY:
Can I raise a question about l
21 '
that.
I have obtained a copy, your advance copy, of the National 22 Academy report on risks associated with nuclear power, and therel
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23 lare some discussions of he effluents from reactors in the fuel '
24 l cycle, and so on.
I would suggest that someone on the staff take nce-Federal Rooorters. Inc.
25 l a look at this report and see how it squares with what we have 2258 038 i
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1 in the S-3 rule before we go forward.
i 2
COMMISSIONER AHEARNE:
Vic, is there some particular 3
number that has come to your attention that looks odd to you?
I I
I 4
COMMISSIONER GILINSKY:
Well, I will give you one num--
i 5
ber.
I looked up carbon 14, which they indicate as being one of; 6
the isotopes of most concern.
And in the fuel cycle they give j
7 an estimate of several tens of curies per reference reactor-year.
8 I notice that we have 24, which is not necessarily inconsistent,.
9 but it does seem a bit lower.
10 '
I think it would be a good idea, since we have extended II l the rule for a couple of weeks, for someone to take this -- I 12 have not examined the report in detail.
/
13 CHAIRMAN HENDRIE:
I must say, having participated in 14 the CONAES study on the risk impact side, I would doubt that the-15 CONAES estimates are in any way more authoritative or useful in i
16 the estimates that were developed and examined in the rulemaking 17 proceeding.
18 I would suggest further that inevitabily in a field 19 1 in which there is considerable interest at any given hour of the l
20 l day or night there may be more material coming forth which, had 21 it been available when the rulemaking proceeding was going on, 22
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might have been picked up by one or another of the participants 23 of the Board and treated in the proceeding.
24 l It seems to me that in promulgating a rule, the Com-LwFewal Ruoners, inc i
25 mission is constrained to consider the matters which are on the i
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record of the proceeding.
And unless there is a sufficiently j
2 strong reason to believe that the whole proceeding is defective l
3 on the basis of some late-running piece of information that I
4 wasn' t considered there, it is not at all clear to me that, at l
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5 this stage, the Commission -- that it's really proper for the 6
Commission to start injecting new material which has not been 7
subjected to the processing and review and consideration by thatl t
8 proceeding.
l l
9 Leo?
10 '
MR. SLAGGIE:
I think that's a fair statement of the 11 legal position.
You are certainly not obliged not to look at 12 this material.
But on the other hand, you could go forward withi i
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13 the rule, provided that the record before you supports the rule.
14 If it should turn out that the Academy of Sciences reports I
15 indicates that there are significant errors in the rule, you 1
16 can always have an amended rulemaking.
17 l But if you -- I guess I don't see a clear way to l
18 l arrive at amending the rule formally simply by looking at addi--
1 19 i tional documents that come out from time to time that are bound!
l 20 !
to suggest a possibility of discrepancies.
That would be more i
21 appropriately a part of general updating.
i l
22 COMMISSIONER GILINSKY:
I guess I would find it odd i
i 23 for us not to take a look at this document and just to ignore 24 l it entirely.
ice-Federet Reoorters, Inc. i you saying that you don't '
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COMMISSIONER AHEARNE:
Are i
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believe that we could incorporate directly information in that j
2 report without going back through the rulemaking process?
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3 I MR. SLAGGIE: No, I am not ready to say that.
But l
I there are difficulties when you attempt to amend a rule signifi I; 4
5 cantly on the basis of material that was not in the rulemaking 6
record, as such.
j 7
Now, what constitutes the administrative record for an 8
agency action is a matter that is not entirely clear.
I believe 9;
you can if you have information that's generally available to the i
10 !
public which you can take notice of and amend the rule on that 11 basis.
12 But in this pa.rticular rulemaking, where you have had
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13 so much participation from people on both sides, there is a 14 certain question -- I agree, a certain question -- of propriety,l 15 whether that's really the way you want to do it.
16 COMMISSIONER KENNEDY:
Leo, when you said " material 17 available to the public," presumably it would have had to have 18 been available at the time of the rulemaking, whether it was 19 1 introduced or not.
Is that correct or not?
20,
MR. SLAGGIE:
No, I don't think that's necessarily 1
21 true.
In fact, in the draft statement of consideration, we 22 refer to the IRG report, in part, as support for the Commission's
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23 decision.
Now, the IRG report was not before the hearing board.
24 l It was discussed in & aft form at the time of the oral argument,
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25 i and the final report which we quote from came out after the oral.
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argument.
2 The reason why we feel that's satisfactory, it's lawful i
i 3i to put that in, if this is in no way some sort of secret docu-i I
l ment that was available to the Commission only and you lay out 4l l
5 pretty clearly why you're doing it.
It also does not involve 1
6 any drastic change from the results you have reached before.
l 7
I think, if you were to take an extra-record document 8
that resulted in a really major change in the rule, that it migh;t i
n 9
be more questionable.
I would hesitate to give an iramediate t
10 '
legal opinion on how far you could go with that.
You could 11 certainly look at it.
You should be doing that.
12 COMMISSIONER AHEARNE:
You are saying that you think
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13
-- I think I missed that last.
14 MR. SLAGGIE:
I think all I meant by that was that 15 as far as keeping abreast of what's going on and seeing whether 16 you believe there is an occasion to amend a rule that has gone 17 !
out before, that's just part of the general work of the Commis-18 sion.
19 l COMMISSIONER AHEARNE:
Were you, though, drawing a 20 l legal conclusion about -- from a legal standpoint -- the 21 advisability of either trying to review this report prior to 22 promulgation of this?
I 23 !
MR. SLAGGIE:
I guess I can say reasonably confidently' I
24 from a legal standpoint, you can go ahead and promulgate this tes-Faceral Reoorters, Inc.
25 l ru1 as it stands 3ased on the record you had 3efore, even l
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1 though this new report may be in some way inconsistent with that;.
2 COMMISSIONER KENNEDY:
The new report, then, to be I
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3I taken into account in the general update which is proposed in l
t this rule?
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5 MR. SLAGGIE:
You can certainly put it in.
l l
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COMMIJ3IONER BRADFORD:
Well,thefactthatwecandoj I
7 it legally, though, doesn't necessarily say we ought to do it.
I 8
The situation may be that there is a pretty high threshold for i
9 changing anything in the S-3 rule based on this document because 10 ' it might well involve reopening for comment any proposed changes.
11 That doesn't say, though, that somebody ought not at least read '
12 the document quickly with an eye toward whether there was any-j
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13 thing in it so significantly different that the difference ought i
14 to be explored.
l 15 COMMISSIONER AHEARNE:
Dick, have you or Bill or any-l 16 body read it?
i 17 MR. CUNNINGHAM:
I haven't seen it.
I don't think the 18 staff has, but I am not sure.
19 1 COMMISSIONER KENNEDY:
What are our obligations to ther I
l 20f district court at this point?
21 MR. SLAGGIE: The only obligation we have to the court is to tell them what we are doing.
We were supposed to make 22 l
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23 l reports --
l 24 i COMMISSIONER KENNEDY:
You think we're in a position nee-Federse Recorters, Inc. f 25 to do that under any circumstances?
I have some difficulty 1
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knowing, myself, i
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COMMISSIONER BRADFORD:
You have a subject in mind, I
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Dick?
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COMMISSIONER KENNEDY:
It's very hard, even at this I
end#1 5
meeting, to discern that.
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l 1i COMMISSIONER AHEARNE:
I guess we could continue as l
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though the report didn't come and hold in abeyance -- you know,!
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let the staff take a quick review of that.
And then, if there !
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- you know, we could still accomplish what had to be done i
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today, and then if staff came back tomorrow cr the next day j
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and said, we have extended until the 15th, have we --
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71 COMMISSIONER BRADFORD:
Yes.
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COMMISSIONER AHEARNE:
That staff came back within a j 9 1 few days and said they have reviewed it, here are the differ-10.l; ences and there were no serious ones, then there would be no a
11 problem.
3 1
i 12 ;l COMMISSIONER BRADFORD:
And none of the changes that II ll 13!l I have suggested were made with that report in mind.
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i la h MR. SLAGGIE:
I have a little bit of a problem with 15 ! that because of the staff's status at this hearing as kind of 16 ' a pseudo-party.
For example, you might ask NRDC whether they
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think there is any problem with this report, do they think it 18 changes the rule.
After all, they were a part of it, too.
i 19 COMMISSIONER BRADFORD:
What about asking OGC and 20 OPE.
i 21 ]
MR. SLAGGIE:
It's perfectly all right.
You can ask I
22.[ us, and whether we can give you the same answer, to look at the
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1 23 1 report --
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24 '
(Laughter.)
..v f er e3 Rexrtees. Inc. I 25j COMMISSIONER KENNEDY:
I must say that we have gone 2258 045
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through an enormous rulemaking exercise in which a large number
- j of parties were involved.
A large number of parties reviewed l
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3 all the material that's in this record, commented extensively on it, were heard in the hearing process.
And all of a sudden, a
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5, we are going to have our General Counsel and our Office of l
6 Policy Evaluation quickly take a look at a report which was 7 '!
done by the Academy over a period of many, many months, if l
il al not years, and in a day or two they're going to come in and I
1 9 1 say what changes we ought to make in this.
10 I consider this absurd.
I 11 COMMISSIONER BRADFORD:
No, no.
That's also not whatI i
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we're doing.
That's not what I suggested.
COMMISSIONER KENNEDY:
Then why are we bothering to
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ask them?
l 15 i COMMISSIONER AHEARNE:
Because if there is some 16 fundamental difference that the report called -- and said, 7
here is their conclusion, that here is, for example, some set
.I 13 i of numbers that are fundamentally different than the ones we're ;
i 1
19 l about to promulgate, I guess I'd lixe to know that.
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COMMISSIONER KENNEDY:
I think that's fine.
And what 1 j, are you going to do with that?
22,
I agree with that.
You know, obviously there is i
23 1 nothing that we cannot learn more about today than we knew l
24, yesterday.
I found that's true on almost any subject.
The
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12 I do with it?
I think we all once in a while ought'to think of I
the next step.
Right now the mode of operation of this whole j
2[d i
2' organization is let's get through today and let's not even l
4 think about tomorrow, because that might inhibit our getting l
Si through today, i
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6 I'm suggesting we ought to think about what we're l
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trying to do, what purpose is to be served, what are we going i
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i ai to do with it after we do that.
My suggestion is we commit i
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9, ourselves right now either to go ahead with this rule or, i
10 alternatively, to have this matter put back into the rulemaking ili and reviewed by the parties through comment, through an addi-l i
12j tional comment period, and wait for it, and extend the other I
13 rule.
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14 COMMISSIONER GILINSKY:
It sounds like the Iranian l
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t 15 l plebiscite.
i 16 l COMMISSIONER BRADFORD:
I don't think it needs to go N7" that far.
There are a range of possible things that could 18 { happen after a quick look, one of which is the conslusion that, i
19 I while there are differences, they are not so major as to require' 20.l any further delay.
21 COMMISSIONER GILINSKY:
Or there may be no differences; j
22 or significant differences, which I suppose would be the same.
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q 23 q COMMISSIONER BRADFORD:
There may be only minor ones. I
!i 24 j There may be what we consider major ones, in which case there
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are still choices as to whether those issues should then be i
2258 047
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Ih pulled out of the table and left for litigation in individual l
2 c proceedings, as to whether the whole table should be held up f
3 and the issues sent back to the parties for comment, I suppose,!
4i as to whether it's within the realm of reasonableness for us i
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to make the change ourself or whether we are so convinced J
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that we are right and 'that the other numbers are wrong that 7!
we would want to go ahead with exactly what we've got anyway.
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So I think until we have just a rough idea of d
9 i whether there are any differences, it would be premature to l
10,, ship the whole thing back to the parties.
r 11 ]
CEAIRMAN HENDRIE:
Well, I think it would not only l
l i
12,
be premature, Peter, but let me point out to you that the CONAES:
l 13 j began to run hard in ' 76.
By the time I came down here in the l
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i 14 i summer of '77, the substantive work of all of the panels had I
i 15 j been pretty well completed.
There was a little tail which d
i 16 ] followed it, but not much.
And indeed, on the risk impact 7.' panel I don't think we had any meetings of the whole panel a
18'l! after, oh, maybe the first of August of '77.
i l
19 What that means is that, for whatever there may be 20, on the CONAES report, the data bases upon which it ic drawn t
21 ll were those known and existing before the summer of 1977.
The i
22,i fact that it has taken the Academy two years to edit and
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I 23 rewrite and re-edit and rewrite, and yet do it all three mo: 3 l
I l times and pass through peer reviews and rewrites, does not 24 wrrgai n xnm. inc. ;
25 i change the fact that the sources of such things as the CONAES 2258 048 3
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.te 5 14 1l estimate of some tens of curies of Carbon 14 released, the h basis for that was all in hand before the summer of '77 and is 2
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the same basis dealt with in the rulemaking proceeding and l
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by the parties, questions by the Board and questions from the 5
i parties through the Board to each other, and so on.
6 I
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That is the same information which appears in the y'
CONAES report, was available in the rulemaking proceeding, and !
i 9 :,1 got scrubbed there.
And I have some difficulty in then saying, i
10 well, after we go through a rulemaking proceeding which has j
11,!i run a couple of years and has been as extensive as this one, 12 another group somewhere has used the same base data and come j
13 i; forward with their set of numbers, I don't find it, you know --
1, 1.1 ] I don' t think it has a comparable standing, in fact, It hasn'tl 15 j had the scrubbing of a rulemaking proceeding.
.i COMMISSIONER KENNEDY:
What is its status?
Is this 16,
7 document now being sent out for peer review and comment by the i
la t Academy?
19 CHAIRMAN HENDRIE:
If it's in that form, why, it I
- c ought to be a publication, final report publication, I would 21 think.
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22,
COMMISSIONER BRADFORD:
It's labeled advanced copy, I
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23 but there's no suggestion that it's a draft.
2.s CHAIRMAN HENDRIE:
If it's a draft, it will be
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MR. FOUCHARD:
I believe it's being released today.
i COMMISSIONER KENNEDY:
For what?
j 2 ;
i MR. FOUCHARD:
I can't answer that.
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l CHAIRMAN HENDRIE:
I would assume it's a final 1
I document if it's printed in that form being sent around.
5, i
COMMISSIONER BRADFORD:
There is a transmittal letter 6
i 7;
to Secretary Schlesinger.
The study is signed and dated j
i April 18.
8 i
I CHAIRMAN HENDRIE:
Yes, I think it can be fairly j
9 s
regarded as a final report.
But as I say, there isn't anything '
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I which was available to the members of the CONAES Committee i
11 12 which wasn't available to all of the participants in the S-3 l
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13 l rulemaking proceeding lo these many years.
And it seems to j
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j, j me that one of the reasons you have a rulemaking proceeding is l
15 gather all the information that any party thinks is germane t
16.
to the point and subject it to examination in that rulemaking, j
. 1 to test it and to have a board which hears the parties, asks
!! questions, sorts out the arguments and makes a recommendation 18 on it.
j9 gl And I must say, I would have, I think for myself, 21 ] considerable difficulty in regarding the incide.
. publication j y
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today of the Academy's report as affecting what we have at L
hand.
23 l
24 ;
COMMISSIONER AHEARNE:
Would your opinion be different,
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25 Joe, if there turned out to be a significant conclusion chat t
-2 was drascically different than one of our numbers?
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COMMISSIONER GILINSKY:
Wouldn't you want to tak j
l 2
a look at it?
3 CHAIRMAN HENDRIE:
I think I'd be willing to take 4
a look at it, but I wouldn't see a need to hold up a ru;a 5
which has been as long in preparation as this one.
I think 6
one would want the staff to take a look at it, as they will 7
want to take a look, with regard to the update which is going 8
on and which hopefully will produce a product at the end of 9
the year for examination by the Commission.
10 You know, there must be all kinds of reports and i
11 comments made by a wide number of people.
Some of these have 12 better standing than others.
I would hope that the Academy's 13 work is well considered, and I would not expect to see 14 notable differences in conclusions.
15 Nevertheless, the information that's in the i
16 proposed S-3 rule, for which we have the draft order before i
i 17 us, has -- as I say, had a pretty extensive scrubbing in a l
6 18 rulemaking proceeding.
Having participated in it, I must say l
19 I would not dignify the Academy's preparation of material 20 with the same -- class that as a comparable proceeding.
i 21 I would recommend to you that we go ahead and l
22 treat the language of the order as we had planned to treat it, l
,s_
l 23 and c.llow this document to go into the system in the normal i
l 24 way, and people could look at it --
I Am fewW Roomn, Is 25 COMMISSIONER GILINSKY:
I would suggest we look at 2258 051 i
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it before we promulgate a rule.
2 COMMISSIONER AHEARNE:
With what intent in mind, 3
Vic?
COMMISSIONER GILINSKY:
Well, exactly what you 5
suggested:
Take a look to see whether there is anything --
0 COMMISSIONER AHEARNE:
Major nuance differences.
7 COMMISSIONER GILINSKYr That's right, that leaps 8
to the eye in some important way different than we have j
i 9
described the situation would be.
And if there is, I guess 10 I would like to reflect on it.
l COMMISSIONER AHEARNE:
Would you be willing to go 12 ahead today with addressing what we have, though?
COMMISSIONER GILINSKY:
Sure.
I#
COMMISSIONER AHEARNE:
With the working assumption 1
15 that there is no difference?
16 COMMISSIONER GILINSKY:
- Sure, j
COMMISSIONER BRADFORD:
That would be my preference.
t 0
CHAIRMAN HENDRIE:
Well, let us do that in order j
to make some progress.
COMMISSIONER AHEARNE:
Very reluctantly, that's my 21 preference.
22 CHAIR m HENDRIE:
And then revisit the subject of 23 whether we make the decision immediately effective, or hold it 24 I
f r a few days for a reading by OPE, probably, to relieve the w.p.e.rw man.r, ine, 25 counsel of concern about the nature of the differences.
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I will point out to you, furthermore, that while 2
you have now in hand the st.unmary report of the Steering 3
Committee of CONAES, I don't know whether you have or are 4
about to have the final report of the risk impact panel, or 5
of the -- let's see.
There was one on -- there was a panel 6
on fuel resources and fuel cycle matters.
7 COMMISSIONER KENNEDY:
Surely we will wish to wait 8
for those?
9 COMMISSIONER GILINSKY:
You will.
10 COMMISSIONER KENNEDY:
Surely we will.
We may II learn something.
I2 CHAIRMAN HENDRIE:
You know, I think if you want I3 to scatter around the countryside and ask who is studying Id what at this institution and that, at this company and that 15 university, I dare say we could lay out a schedule in which 16 no rule of the Commission would ever be promulgated because 17 obviously somebody is working on something which will be 18 published a few weeks later than the proposed rule and has l
I9 some bearing on it.
I 20 COMMISSIONER KENNEDY:
That would be consistent with some objectives.
21 1
22 I
COMMISSIONER GILINSKY:
Except the National Academy s
23 doesn't produce some of these things everyday.
We've waited i
I 24 for some of these things for years and years, and it happens W-Federal Reporters, Inc.
to come at the same time we are ready to go forward with the l
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I rule.
We're only talking about a quick look.
2 COMMISSIONER BRADFORD:
It's the kind of look i
I 3
Harold took at the Duke Power proposals.
4 CHAIRMAN HENDRIE:
Let's go ahead and deal with 5
the proposed order the General Counsel has before us.
6 COMMISSIONER KENNEDY:
I would like to reaffirm my 7
previous vote for the proposal as it was submitted to us, 8
which I concurred on on April 17.
9 COMMISSIONER GILINSKY:
That's the S-3 rule?
10 COMMISSIONER KENNEDY:
Yes.
II CHAIRMAN HENDRIE:
Well, let's see.
I think 12 several of us -- a number of us have concurred.
I will seek 13 to see where the majority view lies.
Id In principle, I guess, at least, Peter, we could i
15 see if we could simply vote a motion to accept it as drafted; I
16 and the other way to go --
I7 COMMISSIONER KENNEDY:
Let me say, I do that after 18 consideration of the changes that Peter was kind enough to I9 submit to us.
I l
20 COMMISSIONER BRADFORD:
I understand that.
i 2I CHAIRMAN HENDRIE:
And the other way would be to i
22
(
look at the changes and to see --
l 23 COMMISSIONER BRADFORD:
Certainly if the four of 24 you are ag' reed that none of the changes improve what you have, f
ace-Federal Reporters, Inc.
I 25 it would be wasting time to go through them one by one.
l 2258 054
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20 I
On the other hand, if there is any inte: Jest in 2
discussing them further, I'd be glad to explain the ones in 3
which there's interest.
4 COMMISSIONER AHEARNE:
Peter, let me ask you two 5
questions.
It appeared to me there were two types of changes:
6 one which I would view as editorial in the sense of improving 7
the grammar of statements; and second, a second set which 8
I would view as a substantive change in the order.
9 COMMISSIONER BRADFORD:
I would have said-- I 10 don't remember any that I would have said were purely grammar; II maybe one where I changed the way something was said and 12 thought I could say it better.
13 There is a category which seems to me to shift the 14 tone slightly, especially in the waste disposal area, away l
15 from stating a position on the ultimate outcome of waste I
i 16 disposal proceedings, which I just don't think we need to do at this time, and shifting our posture more into one in which 17 18 what we are saying is that this seems to be the best effort j
i 19 one can make right now to come up with a reasonable assessment i
20 of waste disposal impacts without in any way indicating a
{
21 position on what's promising and what isn't -- what is the 22 likely outcome of individual licensing proceedings we're going I l
x.
23 to have to take in the future.
l 24 Those changes which may appear to be in part l
ac.e.derei neoorters. Inc.
25 grammatical have as a common theme a desire to be as neutral asl 2258 055
=
3-6 jwb 21 1
possible, while still making clear that what we are considering 2
is a not-unrealistic waste mcnagement scenario.
l 3
And I guess I looked at that reprocessing a little l
4 bit the same way.
And then there is at least one place, 5
which is the handling of technetium, where I agree that we 6
certainly shouldn't reach back into proceedings that are 7
closed, but I was suggesting that in ongoing proceedings it 8
should still be available on the same basis that radon was, 9
if anyone would care to raise it.
10 So that would be a clear substantive change.
II COMMISSIONER AHEARNE:
I thought the description 12 of the need for the narrative was also --
I3 COMMISSIONER BRADFORD:
I'm not sure whether that 14 would have been the narrative that we would have gotten in any 15 case, but I wanted to at least be more precise.
10 COMMISSIONER AHEARNE:
Obviously--I'mnotalawyer) i 17 so I read it from a different point of view, but the way I 18 read it was that it was almost at the point of saying that we l
19 would be concluding that the S-3 table, without the narrative, 20 is deficient.
l 21 COMMISSIONER BRADFORD:
Oh, that's different.
Not legally " deficient," but in the sense that NEPA requires an l
22 l
23 environmentally informed look at the consequences of what 24 we re doing.
l e
Ace-Federst Reporters, Inc.
25 COMMISSIONER AHEARNE:
That's why I was saying that !
2258 056 l
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22 I
the way it was phrased it would be deficient for the purposes--
2 COMMISSIONER BRADFORL:
I hadn't intended to say 3
" legally deficient."
I don't think that argument can be made.
4 I think elsewhere in here it's officially stated that a 5
narrative is not required.
l 6
MR. SLAGGIE:
That's right.
l l
7 COMMISSIONER BRADFORD:
And I don't think I 8
changed that.
But I do feel, to the extent we're talking 9
about using the S-3 table as part of licensing decisions, as 10 part of the overall basis on which we regulate, one has to II think more -- at least as much, in terms of impacts as curies I2 or roentgens.
13 COMMISSIONER GILINSKY:
I think Peter's changes I4 are helpful, and in many cases desirable.
15 g,'SSIONER AHEARNE:
I guess I would have come 16 out that I would agree with some of them, and I would l
I7 definitely disagree with others.
l 18 CHAIRMAN HENDRIE:
I think we will need to thumb I9 end #3 through them.
Why don't we start.
Page 7?
20 2258 057 l
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22 23 l
24 l
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4 i
i28.04.i 23 gsh I
COMMISSIONER AHEARNE: No problem.
2 THE CHAIRMAN: I have no problem.
3 COMMISSIONER KENNEDY:
Why aren't the proposals 4
not being promised?
I would certainly agree t ha t the grammar 5
is pref erable in changing "will" to "would."
6 But let me add in that connection that had I know 7
that we were going to do that sort of work, I would have done 8
it myself, because there were a number of things about the 9
syntax and the like which I thought needed improvement.
10 But in the intare st of getting forward with the il project, I accepted what counsel had done, unless there was 12 some egregious reason for what we're doing -- I did not.
13 COMMISSIONER BRADFORD:
I a ssure you I would not 14 have brought us all here simply if the only thing I had in 15 mind was changing tha t "willu to "would."
16 COMMISSIONER KENNEDY: I'm only no ting w hy I wasn' t --
17 I was not disagreeing with changing.
I said I would agree 18 with it, but I'm only noting that the reason for my sort of 19 blanket disavowal was simply that I hadn't considered that 20 we were going to take that approach.
Had I, I would have 21 made some suggestions myself.
22 But I'm perfectly amenable to "would" instead of 23 "will," but I would like an explanation why promising 24 propsals is not a reasonable description.
25 COMMISSIONER BRADFORD: Well, as I indicated before, 2258 058
28.04.2 24 gsh I
wlet I'm af ter is what is.as neutral a position as possible 2
on the future courses of possible waste management solutions.
3 This was not a waste management licensing proceeding, or even r' ally a waste managemen t appraisal proceeding.
And 4
e 5
it didn't seem to me to be quite right for the commission to 6
be labeling whatever may be in the record below as being 7
promising or unpromising.
8 It seems to me the point was that these were among 9
the more likely or likelier --
10 COMMISSIONER KENNEDY: What I'm trying to ge t at, 11 Peter --
12 COMMISSIONER BRADFORD:
-- and therefore, provided 13 a basis for arriving at a reasonable appraisal of waste 14 dis posal impac ts.
And it wasn't for us to make a politic 15 Judgment that at this point it looked good.
16 COMMISSIONER KENNEDY:
My question goes to:
Is the 17 reason for your change the assumption that, indeed, we do 18 not -- they are not promising proposals that have been put 19 forward?
20 There are no proposals which could be defined as --
21 or just as promising.
That's what I'm trying to find out.
22 COMMISSIONER BRADFORD: No, I wasn't making that 23 swee ping a judgment.
I just f elt we ought not to be endorsing 24 the proposals, or appearing to endorse the proposals in this 25 proceeding.
s.
2258 059
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COMMISSIONER KENNEDY You think that by indicating 2
them to have any promise would be an endorsement?
I hadn't 3
thought of that.
I'm trying to find out what the word means 4
to people diff erently than it means to me.
5 COMMISSIONER BRADFORD: It makes a qualitative 6
judgment.
It's a way of saying these proposals were good.
7 COMMISSIONER KENNEDY: And you do not believe that 8
any of them is?
9 COMMISSIONER BRADFORD: I don't think this is the 10 proceeding in which we as a regulatory agency ought to be 11 saying that.
I would have taken the word " unpromising" out 12 just as f ast, I think.
13 COMMISSIONER GILINSKY: We don't need it.
Why not 14 drop it.
15 COMMISSIONER KENNEDY: I'm trying to find out why 16 we're dropping it and what it means to people as a reason for 17 dropping it, because it didn't trouble me at all in the 18 beginning.
And since we're going to go through this, I'm 19 trying to find out what it is I'm being asked to do and why, 20 so I know what it is I agreed to, because I would like to 21 agree to it as much as possible.
22 COMMISSIONER GILINSKY: This seems.to be leading to 23 an explanation of why certain systems were taken as reference 24 systems for examining the impact of the fuel cycle.
25 MR. SLAGGIE:
If I may say one thing about it in 2258 06C
28.04.4 2G gsh I
drafting it, one of the problems we had to confront is that 2
the set of impacts you are adopting a ssumes that the waste 3
disposal f acility will succeed in isola ting this material 4
without any releases whatsoever for the full period of 5
toxicity.
6 So whether or not you explicitly say, we think there 7
are promising waste disposal programs, you are implicitly 8
adopting a table of numbers that assumes that there will be 9
very promising and, indeed, very effective waste disposal 10 facilities.
Il COMMISSIONER BRADFORD: But as you also indicate, 12 though, Leo, if that assumption is in some ways in error, 13 that error is in some measure off set by what may be a very 14 conservative assumption 1 namely, the total release of 15 volatile isotopes before it ever gets in place to begin with.
16 MR. SLAGGIE: There are some off sets, certainly.
17 But generally, it is hard to make the assumption, to say that 18 the assumption of no releases is conservative.
And generally, 19 we have taken the approach -- we're making a conserva tive 20 approach to the fuel cycle impacts.
Then we suddenly say, 21 however, we are assuming that the waste repository will work 22 perfectly.
23 So I don't thin k tha t the re's a c om pl e te of f s e t 24 there.
You are making implicitly the judgment that it is more 25 likely than not that the se pro posals will pan out.
To me, u
2258 061
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27 gsh I
tha t's wha t " promising" meant.
If they are not promising, 2
it's hard to make the judgmen t that there is a sufficient 3
likelihood that you will get a perfect integrity of our 4
repository.
5 COMMISSIONER BRADFORD:
But you see, the zero release 6
judgment is, in fact, not a conservative one.
I don' t think 7
we make it more or less conservative by arbitrarily adding 8
the word " promising," or several of the other value-loaded 9
phrases.
It may make us look more logical, but it doesn't 10 make the repository any stronger.
Il COMMISSIONER GILINSKY: Let's see.
Might not the 12 repository that is used turn out not to be any of the obvious 13 c hoic e s.
14 MR. SLAGGIE: We address that in a f ootnote which 15 Connissioner Bradford would also strike.
It seems to me that essential to the adoption of this table has to be your belief
,e 17 and judgment now that it is at least reasonably likely or 18 more likely than not, that a zero release repository can be 19 a c hie ved.
If it turns out it isn't bedded salt, then you 20 have got to have a f eeling it will be something else.
21 You can't make that judgment.
22 COMMISSIONER AHEARNE: Do you feel that the 23 elimination of " promising is a major difficulty?
24 MR. SLA GGIE: At this page, no, but we're going to 25 get to these difficuli tie s.
2258 062
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COMMISSIONER AHEARNE: At this page now 2
MR. SLAGGIE: Page 7.
3 CHAIRMAN HENDRIE:
Let me ask for a vote in f avor 4
of dele tion f or " promising."
5 COMMISSIONER KENNEDY: I will vote for deletion of 6
" promising," provided that it is understood in doing so, I 7
believe that there are promising systems that have been put 8
forward.
9 CHAIRMAN HENDRIE: Fair enough.
Those in favor of 10 dele tion --
11 COMMISSIONER AHEARNE: Aye.
12 CHAIRMAN HENDRIE: You've go t a dele tion, 13 Peter.
14 15 16 b#
2258 063 17 18 19 20 21 22 23 24 25 7
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CR4528 #5 MIMI/pv 29 i
i I
CHAIRMAN HENDRIE:
It's most of the i
f 2
way do vn the page, " tolerable and, in fact, unavoidable" is 3l struck.
" Firm commitments" changed to " basic decisions," I have!
i i
4' no trouble with " basic decisions."
There is a thought in there i 5
which may have come the wrong way to Peter, and I wouldn't --
6 I don't like quite the way you have edited it.
It had said "a 7
reasonable degree of uncertainty is tolerable and, as a matter l
ide 2 8
of fact, is unavoidable."
ackup 9
COMMISSIONER BRADFORD:
That I would have said is 10 '
almost pure grammar.
If it's unavoidable, of course it's toler--
II able.
12 COMMISSIONER KENNEDY :
Wait.
No.
I don't think that's I3 true.
Id CHAIRMAN HENDRIE:
I would just say "a reasonable 15 degree of uncertainty is unavoidable in the circumstances."
16 That's the fact of the matter.
17 I think it's useful to note and, if acceptable, given 18 that basic decisions have not yet been made and so on and so on.
COMMISSIONER BRADFORD:
Let's see.
So, the sentence i
20 l would read how?
21 CHAIRMAN HENDRIE:
Well, my suggestion would be to 22 I accommodate what I thought was your thrust, was to say "a reason-l s.
23 lable degree of uncertainty was unavoidable and is acceptable, 24 ! given that basic decisions have not yet been made regarding the
.c..r.ews neoonm. inc. ;
25 reprocessing and the technology of waste disposal."
t i
[
2258 064
pv2 30 l
1 i
1 COMMISSIONER BRADFORD:
That's all right.
2 COMMISSIONER AHEARNE:
Fine.
I 3i CHAIRMAN HENDRIE:
I will declare that that's a settled i
I l
4' matter.
5 Page 10.
I have no difficulty with that.
It's clear 6
that the adoption of this rule doesn't foreclose future amend-l 7
ment.
In fact, we have guaranteed future amendment, made it a l 8
Commission policy.
l i
9 COMMISSIONER AHEARNE:
Fine.
I 10 '
CHAIRMAN HENDRIE:
It seems to me the sentence ought 11 to just include the next sentence:
" Adoption of this rule does '
12 l not foreclose its amendment as knowledge increases, nor does i
13 use of the table in individual licensing foreclose discussion of I
14 the significance of those impacts or other important aspects ofI 15 the fuel cycle not addressed by the table."
16 COMMISSIONER AHEARNE:
Fine.
17 CHAIRMAN HENDRIE:
I hear no outcrys of rage and objec-18 tion.
19 1 Page 25.
Peter would add to the sentence:
"The Board 20 '
conducted all of the questioning during the oral hearings."
He 21 would add:
"and denied all requests for cross-examination by 22 the parties."
i l
~.
23 h COMMISSIONER KENNEDY:
I think that's a perfectly fair I
24 l statement, and, indeed, I think it'ought to be explored.
I ta-FewW Reornes, lm.
25,
think there should be a further statement as to the reasons why I
[
2258 065
pv3 i
31 i
I they did not.
l i
2 COMMISSIONER BRADFORD:
That may well be a good idea,'
3 since I had planned to comment on it separately, anyway.
And l
l l
l 4'
you may not want to leave it to my comment.
i 1
5 COMMISSIONER KENNEDY:
I certainly would not.
6 MR. SLAGGIE:
In our view, that statement tended to be; 7
a bit misleading.
To me, it conveys the impression that a con 8
tinuing proceeding in which cross-examination could have been 9
given at any time -- in fact, in such a proceeding, cross-10 '
examination was always denied, whereas, in fact, of course, 11 that's not the way the thing was set up.
12 As footnote 11 explains, a cross-examination was to i
13 be made available in a tag-on proceeding at the end.
i i
I 14 COMMISSIONER KENNEDY:
It is precisely the sort of 15 explanation which I believe belongs here if this addition is 16 included.
17 COMMISSIONER BRADFORD: Where is footnote ll?
18 COMMISSIONER AHEARNE:
Page 23.
19 !
COMMISSIONER BRADFORD:
I unfortunately only brought 20 i my changes.
21 MR. SLAGGIE:
That's page 23, which explains that no 22 cross-examination was given.
23 CHAIRMAN HENDRIE :
I must say, in view of the footnote!
24 l which, in f act, says the Board found the requisite demonstration.
Ace-Federal Reoorteri, Inc,,
25 ;
had not been made, I don't find the need for the additional I
2258 066
pv4 l
~
32 1
phrase up on page 25.
2' COMMISSIONER KENNEDY:
Nor do I.
And if it is added, I
3l I reiterate even more it seems to me it is ir9ortant that there' I
I 4
be a further explanation then of this other phrase.
5 COMMISSIONER BRADFORD:
Given the footnote, I would 6
take it out.
7 COMMISSIONER AHEARNE:
Fine.
8 CHAIRMAN HENDRIE:
Period after " hearings."
9l Page 32.
I 10 '
COMMISSIONER AHEARNE:
I guess there I didn't mind 11 eliminating the "likely," but I guess I would have said "which, 12 on technological grounds, could reasonably be employed."
13 CHAIRMAN HENDRIE:
I will go forth -- agree'.to "could 14 reasonably" if others would join in that.
15 COMMISSIONER KENNEDY:
Fine.
16 COMMISSIONER BRADFORD :
Just a second.
I l'7 COMMISSIONER AHEARNE:
It seemed tc me --
18 COMMISSIONER GILINSKY:
What is the " reasonably" mean 19 1 here?
20 t COMMISSIONER AHEARNE:
It seems that gets, I think, to l
21 one of the points that Leo was talking about, that the heart of 22 what we are doing, we are saying that here is a set of numbers 23 !
which are based upon our taking the position that it could be 1
24 l expected to be used.
oFewsawxan,w.
25 l COMMISSIONER GILINSKY:
Take that reprocessing mode, i
ll 2258 067
pv,5 l
33 1
you've got a contrived mode of reprocessing which no one has 2
used and no one is likely to use, how would you categorize that?
3 CHAIRMAN HENDRIE:
Let's see.
It was also the basis t
l 4'
for a plant design; wasn't it?
i i
5 COMMISSIONER GILINSKY:
Where?
Not that I know of.
l l
6; CHAIRMAN HENDRIE:
Barnwell?
7 COMMISSIONER GILINSKY:
I don't think so.
l i
COMMISSIONER BRADFORD:
No, because this mode leaves l
8l t
9l the plutonium in.
l 10 COMMISSIONER GILINSKY:
This was one of the --
11 COMMISSIONER AHEARNE:
With the exception that "which i
12 '
the Commission directed could reasonably be" --
13 CHAIRMAN HENDRIE:
Co-processing?
14 COMMISSIONER GILINSKY:
No, it was with some of the 15 l fission products left in, I believe.
I 16 l COMMISSIONER KENNEDY: "Despite the Commission's 0
17 l directives to the contrary, we do not believe this to have been t
18 a reasonable course."
Is that what you're saying?
l9 !
COMMISSIONER GILINSKY:
Well, I didn't say it.
In l
20 fact, I think it served to delay the proceeding, so that the 21 National Academy could catch up with us.
But that's a separate 22
- point, 23 1 COMMISSIONER KENNEDY:
Think how difficult it would I
i 24 f have been for us today had that not been the case.
Given our nce Federao Rooorters, Inc. ;
25 conclusion today that we can always learn something and therefore II l
2258 068
pv6 6
34 l
i 1
we should move slcwly.
2 CHAIRMAN HENDRIE:
Look, the section where you're
{
3i treating this deals with the matter of New York wanting a i
4 highly detailed sort of economic analysis as part of this thing, I
5 and the Commission's decision versus the Commission's decision i
6 that the way economics entered, if at all, was just to see in al 7
general sense whether the staff models were economically feasi Si ble in the context of a nuclear industry and that yc. didn't 9
have to parse everything down to fine details.
10 And all this is saying is that those models are based 11 on methods and facilities which, for technological reasons, are 12 reasonably likely to be employed or, probably better, could i
13 reasonably be employed.
For me, the word " reasonably" is i
14 important there.
15,
COMMISSIONER GILINSKY:
Well, I guess I don't under-16 stand.
" Reasonably likely" is clear to me, and that " reasonably" 17 modifies "likely."
But could " reasonably" -- I am not sure what 18 that means.
19 1 COMMISSIONER BRADFORD :
I have the same difficulty.
I 20 ;
I would go back to our " reasonably likely" before I would be 21 l happy with "could reasonably be," because when you use "reasona--
22 bly" that way, it seems somehow to be endorsing the reasonableness 23 of doing it.
24 COMMISSIONER GILINSKY:
It seems to me saying it's
%ce Federal Reporters. Inc.,
25 I a sensible course.
'lI.
pv7 35 1
COMMISSIONER DESDTORD:
If you say it's " reasonably 2 h likely," then you're saying it's a little bit more probable.
I 3'
Then I would have been comfortable with it, but at least it I
i 4'
doesn't shift the word " reasonably" over to a judgment that men,
t 5
of reason would do it.
6 COMMISSIONER KENNEDY:
Sir.:e Peter's agreeable to 7
going back to the way the language was originally -- and I cer-8 tainly am -- I would suggest that we -- we ought to leave it the:
9 way it was.
i 10 CHAIRMAN HENDRIE:
I will switch my vote to " reasonably Il likely."
12 COMMISSIONER KE?TNEDY :
We don't agree to that in the 13 first place.
The only one who didn't was Peter, who now agrees.:
i 14 COMMISSIONER GILINSKY:
I guess I am disagreeing now. I 15 '
There is a problem with every processing mode.
Are you saying l
16 l that's a reasonably likely technology to be employed?
l' 17 !
I am talking about the specific approach that was used 18 here, not reprocessing in general.
I think it would be very 19 ! difficult to make that judgment.
20 CHAIRMAN HENDRIE:
We could go back to "could reasona--
21 bly," then.
" Reasonably could be employed"?
22 l COMMISSIONER GILINSKY:
What's wrong with "could"?
I 23 !
I think Peter was right in the first place.
I 2d l COMMISSIONER BRADFORD:
I think I was right in the sc.J.o.rm a.comes, inc. ;
25 first place.
I was just recognizing that I seemed to be on the i
j 2258 070
36
[
1 verge of losing that.
I was just salvaging something.
2 COMMISSIONER KENNEDY:
And I was prepared to help you 3l in that regard and restoring it to a rational posture, as we all~
i
~
4 agreed earlier.
5t COMMISSIONER AHEARNE:
And the possibility that there's 6
a legal question involved.
7 Leo, can you make any comment among the three choices?:
8 MR. SLAGGIE:
Remember, what you are doing in this is 9:
making a prediction.
These are facilities that, for most cf i
10 the back-and-fill, are facilities never built and never operated.
II You are trying to make a prediction as to what facilities will 12 be used and what their impacts are.
And, in that sense, you are 13 deciding what facilities are reasonably likely to be the ones Id that will be used, and that was decided on a technological ground.
15 l Now, New York says, "Well, wait a minute.
They're not l
16 reasonably likely to be used if they cost a billion or a trillion I7 dollars."
That's the part that is being addressed here.
We I3 said we made our prediction based on technological grounds as to-I9 l what is reasonably likely to be done.
New York says, "Well" --
l 20 ! economic feasibility says, "Is this likely somehow to be 21 destroyed by costs?"
That's the only point that's addressed 22 ll here.
23 ll COMMISSIONER BRADFORD:
Leo, is it legally important 24 ! that we feel that this particular part of reprocessing be reason-scs.Federse Reporters. Inc.
25 l ably likely to be employed?
2258 071 i
b
pvt I
37 i
1 MR. SLAGGIE:
If reprocessing is done, you should have 2
a feeling that the model facility on which you are basing your I
3:
impact is one that's reasonably likely to be used for it.
4 i
I i
4 !
COMMISSIONER GILINSKY:
Well, it just isn't.
I don' t i I
5 think anybody think it is.
6 CHAIRMAN HENDRIE :
Let me see if we can get a divisioq 7
on this house.
I will propose that the language stand as it was; 4
8,i drafted by the counsel.
i 9
COMMISSIONER KENNEDY:
I have already voted that way 10 '
three times.
Il COMMISSIONER AHEARNE:
Peter, you feel " reasonably 12 likely" is better for your purposes than "could reasonably"?
13 COMMISSIONER BRADFORD:
Yes, although I must say the i
14 advantage I saw in "could" was that it didn't seem to imply any !
15 '
real judgment as to probabilities whatsoever, because, frankly, 16 it's not a reprocessing.
It seems to be a very likely one.
i 17 COMMISSIONER AHEARNE:
I was trying to make 5.he same 18 point in the sense that I was trying to keep the -- it 's a l9 !
probability that there is -- which was the "likely" brings it 20 !
over more towards the certainty.
but, on the other hand, that 21
" technologically you could do this."
And that was what the 22 l reasonableness was.
23 l I
COMMISSIONER BRADFORD:
If you would substitute 1
24 l " technologically" for " reasonably" --
.c.Feoerei neoonm. inc.,
25 COMMISSIONER AHEARNE:
But you've already got "on h
2258 072 a
38 l
1 technological grounds."
2 COMMISSIONER BRADFORD:
Okay, then, i f you will vote l l
3 with Vic and me --
i I
4' COMMISSIONER AHEARNE:
That's where the reasonableness.
5 is.
I guess I would have to fall back to " reasonably likely" 1
6 then.
l Do you 'hink it's reasonably 7
COMMISSIONER GILINSKY:
t 8
likely --
9l COMMISSIONER AHEARNE:
I don't think it's likely.
I 10 '
COMMISSIONER GILINSKY:
Is it reasonable?
11 COMMISSIONER AHEARNE:
I think it is reasonable that 12 you could do it.
You know, if there were a regime, a political 1
13 regime or an international agreement regime which said that thisi i
14 was the only way that anybody's going to allow reprocessing to 15, occur, then I think that, economically and technologically, that's l
16 a reasonable way to do it, given that proviso.
I 17 COMMISSIONER GILINSKY:
Then we ought to add a foot-18 note, I guess.
19 l COMMISSIONER BRADFORD :
If -- I could go with "could I
20 '
reasonably" if you put the word "alone" an the front of it so 21 it read "on technological grounds alone could reasonably be 22 employed."
That is, you could do it.
I 23 1 COMMISSIONER AHEARNS:
That is all I was trying to get.
I 24 !
at.
Ace Federal Reoorters, Inc. l 25 {
Leo, were you trying to say more than that, i
ji 2258 073
39 1
MR. SLAGGIE:
I have lost that.
2 COMMISSIONER AHEARNE:
He was suggesting that if you 1
3 i put "on technological" -- this rulemaking, et cetera, which "on '
I i
4 technological grounds alone could reasonably likely" --
1 5
MR. SLAGGIE:
Sure.
That's fine.
6 COMMISSIONER AHEARNE:
That's all right?
I 7
MR. SLAGGIE:
Sure.
8 COMMISSIONER KENNEDY:
So what are we doing now?
We're 9
going to say "on technological grounds alone could reasonably be.
10 !
employed"?
11 COMMISSIONER AHEARNE:
Yes.
12 COMMISSIONER BRADFORD:
That eliminates any judgment --
13 COMMISSIONER KENNEDY:
One could argue that that 14 language now says that economic grounds notwithstanding, it would 15 be done.
16 COMMISSIONER BRADFORD:
I see what you are saying, Vic.
I 17 COMMISSIONER KENNEDY:
That's not what's meant, but I 18 lthink that's the way it could be read.
I 19 1 MR. SLAGGIE:
Agreed.
It could be read that way.
I 20 i COMMISSIONER KENNEDY:
If it could be read that way, i
21 I then we ought not to write it that way.
22 COMMISSIONER BRADFORD:
I am all prepared to say some--
23 l thing which has a 50 percent chance of being read in a sensible 24 I way, though, than something that does not.
Ace-Feceral Reoorters, Inc.
25 j (Laughter.)
f 2258 074 i
pv12.
40 l
1 COMMISSIONER KENNEDY:
Out of three people on that 2 l question, we just got three people who felt it could be read l
t 3'
that way.
And, therefore, I suspect that chances are not quite I
i 4
in the 50 percent range.
5 COMMISSIONER AHEARNE:
But I thought Leo said it was 6
legally acceptable to do that.
l 7l COMMISSIONER KENNEDY:
Oh, legally acceptable to do I
8' that.
9; MR. SLAGGIE:
Where are we now on " technological i
10 grounds alone are reasonably likely"?
11 COMMISSIONER AHEARNE:
"Could reasonably be."
l 12 MR. SLAGGIE:
"On technological grounds alone could 13 reasonably be," that tends to lose a little bit of it.
But I l
I 14 don't care enough about it to make a fight about it.
15 COMMISSIONER KENNEDY:
What is it that it loses?
1-6 (Laughter.)
i 17 MR. SLAGGIE:
As I said before, you are partly making 18 a prediction.
There are perhaps a number of different ways of 19 !
doing reprocessing which technologically feasible but might 20 l hase different impacts.
The one you are trying to predict is 21 the one that you feel is most likely.
It may not be likely.
22 It's just most likely out of a spectrum of possible alternatives.
4 23 l So that you can say that the impacts you are putting in your 24 l table are based on what you think if it's done it is most likely sce4ecoral Reoorters, Inc. ;
25 to be the way it will be done, not just a way of doing it, but h
2258 075 1
P 3
41 i
i j
the way in which it's most likely to be done.
I think that thought is lost if you go to "could i
2l l
1 3i reasonably be employed."
j i
COMMISSIONER KENNEDY:
What does that do, then, to 4
l the entire thrust of the order?
end#5 3
l 6
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8 9
10 '
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18 19 {
i 20 i 1
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- 6 1
MR. SLAGGIE:
I guess I daa't understand.
It 2
maintains the thrust of the order, I think.
3 COMMISSIONER KENNEDY:
If we change it?
4 MR. SLAGGIE:
No, on this one page.
It doesn't 5
make that much difference.
But I think the subsequent 6
changes --
7 COMMISSIONER KENNEDY:
How many times shall we 8
say it?
We've already said it twice.
We made that same 9
- argument, "no, it doesn't matter on this page."
How long can 10 you do that?
11 MR. SLAGGIE:
This is a cumulative impact problem.
12 (Laughte:.)
13 COMMISSIONER KENNEDY:
That is my question, too.
14 MR. SLAGGIE:
I agree with you.
This was written i
15 with a certain amount of though to convey a tone, but not 16 too much, not too little, either.
l 17 CHAIRMAN HENDRIE:
Let me go back again and repeat 18 the vote.
Let us take the vote this way.
l 19 I will propose to you that the language stand as 20 tne Counsel's Office wrote it, and we will then proceed to 21 vote "aye," and ask for votes up and down the table.
l l
22 COMMISSIONER KENNEDY:
Aye.
l 23 COMMISSIONER AHEARNE:
No.
f 24 COMMISSIONER BRADFORD:
No.
l Aa-FewW Reorurs, tm.
l 25 CHAIRMAN HENDRIE:
Okay, what change?
l l
2258 077 I
6-2 jwb 43 l
I!
COMMISSIONER AHEARNE:
I would go with the "alone 2
could reasonably be employed."
3 COMMISSIONER BRADFORD:
I could try one other, but 4
I almost want permission before I suggest it.
5 If you put the word "could" after "which," you 6
could then drop the "alone" as far as T was concerned.
l 7
COMMISSIONER AHEARNE:
Could you say that again, 8
Peter?
l "Whichcouldontechnologica).
9 COMMISSIONER BRADFORD:
I 10 grounds reasonably be employed".
COMMISSIONER AHEARNE:
Fine.
I2 CHAIRMAN HENDRIE:
I'11 buy that.
If that cures 13 your problem, I think it maintains the interest I had in it.
Id COMMISSIONER KENNEDY:
Read it again, Peter?
i 15 COMMISSIONER BRADFORD:
"Which could on techological!
16 grounds reasonably be employed".
I7 COMMISSIONER KENNEDY:
Fine.
18 COMMISSIONER BRADFORD:
I'm considering myself I9 being outvoted on my preference to eliminate just the word 20 "could," since I see John sort of indicating he would not 21 have gone for that, and making the suggestions in that context.l l
22 CHAIRMAN HENDRIE:
That was excellent.
Good 23 suggestion, Peter.
1 Page 35.
Ace Federst Reporters. Inc.
j COMMISSIONER AHEARNE:
Fine.
7g
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CHAIRMAN HENDRIE:
I'm prepared to accept both of 2
those major changes in the thrust of the order.
3 COMMISSIONER KENNEDY:
Let me indeed offer a word A
of commendation.
Certainly the word " ruling" does have a 5
ring to it much preferable to the word " teaching."
6 COMMISSIONER BRADFORD:
Thank you.
7 CHAIRMAN HENDRIE:
You win some, and you lose some.
8 COMMISSIONER AHEARNE:
Which brings us to page 39.
9 CHAIRMAN HENDRIE:
Which brings us to page 39.
10 '
(Laughter.)
COMMISSIONER BRADFORD:
Wait a minute.
I'll trade.
I2 COMMISSIONER AHEARNE:
I disagree with taking it 13 out.
Id COMMISSIONER KENNEDY:
So do I.
15 CHAIRMAN HENDRIE:
Yes.
I have a lot of trouble 1
16 with taking that out, Peter.
It seems to me that it really l
17 does seriously deplete the elements of judgment the Commission l l
18 is called upon to make.
This is an important aspect here.
I9 COMMISSIONER GILINSKY:
Aren't we getting ahead of 20 the rest of the government here in our enthusiasm?
I 21 i
COMMISSIONER AHEARNE:
In quoting the IRG?
i 22 COMMISSIONER GILINSKY:
That a suitable bedded 23 salt repository site will be found?
COMMISSIONER BRADFORD:
The IRG itself, I would have' Aa-FWwW Recrurs, tm.
25 to go bick to it, but it seemed tc me that there were different 2258 079
6-4 jwb 45 I
places in there where it was hard to reconcile the quotes on 2
just this point.
And it's been too long.
I will go back and l
3 look at it if this stays in, because I think I would want to 4
note a slightly different view.
5 But I had thought that, without page 39, there 6
still was ample indication that -- to use the language we just 7
came up with before -- that this was a reasonably likely 8
scenario which was all we needed to go ahead and use it as 9
the basis for S-3, and I was content to leave it at that.
10 COMMISSIONER /WP.ARNE:
Is it the " suitable I
repository site" being found?
Or the " bedded salt repository I
12 site" being found that bothers you?
Because I think Vic is i
13 correct, if he says that we are a little bit more positive Id at that stage than the bedded salt.
15 COMMISSIONER BRADFORD:
The business of saying 16 "a suitable bedded salt repository site will be found."
It 17 is still not inconceivable that it will turn out that bedded 18 salt is not --
j I9 COMMISSIONER AHEARNE:
That was my question. Is it l 20 the " bedded salt," or the " suitable repository"?
l 2I I
COMMISSIONER BRADFORD:
I guess I hadn't separated 22 it out all that well.
If I could say with absolute confidence 23 that bedded salt were the acceptable repository, then it 24 would be easier certainly to say that a suitable site will be ac.J.oers seconen, Inc.
25 found.
2258 080
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COMMISSIONER AHEARNE:
What I am asking you is --
2 and maybe first I ought to ask Leo.
3 Leo, is it incorrect that the key issue is the 4
judgment that a suitable repository site will be found?
5 MR. SLAGGIE:
I think that's a key issue, and much 6
of the justification, the analysis that you have given to I
7 explain why you'll get zero release is based on bedded salt l
concepts.
f 8
9 Now we have this footnote 26 which says that:
10 Well, even if, contrary to expectation, a bedded salt II repository isn't found, probably something just as good will 12 turn up.
i I3 COMMISSIONER KENNEDY:
But footnote 26 is one of i
I those Commissioner Bradford suggests be deleted.
I4 15 MR. SLAGGIE:
That's correct.
16 COMMISSIONER AHEARNE:
See, I would agree with f
i I7 what at least I think part of Commissioner Gilinsky's point 18 If we come down very firmly on the bedded salt, that ia was.
I9 getting ahead of the rest of the government.
l 20 MR. SLAGGIE:
I would suggest a possible change.
21 If you're saying, "It is the Commission's judgment that it is 22 more likely than not that a suitable bedded salt repository 23 will be found," that's a little less strong than saying "it 24 will be found."
ac.-F.o.r : neconen, inc.
l COMMISSIONER AHEARNE:
Is it lessstrongthansayingl 25 l
l 2258 081 i
6-6 jwb l
47 I
"It is the Commission's judgment that a suitable repository 2
site will be found"?
3 MR. SLAGGIE:
The problem that leaves me is:
As 4
I say, much of the analysis depends on the idea of bedded 5
salt.
The salt melts around and seals things off.
The 6
Hearing Board primarily concentrated its analysis on bedded 7
salt, as did NUREG-116, 8
If you don't feel that it's at least reasonably likely that a bedded salt repository will be found, much of l
9 10 that analysis goes down the drain and you will have to II consider why you believe some other, now unspecified, 12 repository site will achieve the same thing.
l 13 COMMISSIONER BRADFORD:
But what you just said, I4 Leo, is a little different than what's here.
You said, "it's 15 reasonably likely that a bedded salt repository may be found." l 16 This says, unequivocally, that "it's the Commission's judgment I7 that a suitable bedded salt repository will be found."
i 18 PR. SLAGGIE:
That's why I say that you can back I9 off that and still, I think, make a sufficiently strong i
20 judgment by saying " reasonably likely."
I would say "more l
21 likely than not."
If you feel that it's not, if you feel 22 that it's less likely --
23 COMMISSIONER GILINSKY:
Does DOE still feel that l
l 24 way?
i Ace 4ederne Reporters. Inc.
COMMISSIONER AHEARNE:
I don't know.
l 2258 082
6-7 jwb 48 I
COMMISSIONER BRADFORD:
See, what I would like to 2
do is, in this proceeding where, after all, this wasn't a 3
central issue -- that is, the likelihood of a repository --
4 I would like to make the minimum judgment necessary to 5
support the rulemaking.
6 Ideally, it would be something along the lines t
7 "for purposes of thia rulemaking we have assumed," but I 8
gather we have to do a little more than that.
9 MR. SLAGGIE:
Let me give you the following i
10 hypothetical.
II Suppose you thought it pcssible that a bedded 12 salt repository site can be found, but it's more likely that 13 it won't be found, and that the waste will just spill out --
14 (Laughter.)
15 COMMISSIONER BRADFORD:
That obviously is not the i
16 basis that we're working on.
And I gather you're saying that 17 legally it wouldn't quite suffice to say "for purposes of 18 this rulemaking we assume that this will be the course 19 followed"?
That seems to me to be closer to my own perception 20 of what we're doing.
Obviously this is a collegial document, but my own l
21 22 preference is to give the minimum endorsement necessary to make 23 this particular table rest on the right sort of judgment.
l 24 MR. SLAGGIE:
You're saying --
tes-Federne Reporters, Inc.
j 25 CHAIRMAN HENDRIE:
In order to support this table, l
2258 083 l
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6-8 jwb 49 i
I why I have to agree that it was for the purposes of this l
2 rulemaking reasonable to assume a bedded salt repository.
3 Now the discussion which follows, and which is 4
also important, on page 39, it simply starts out and says i
l 5
"It is our judgment that it will be found."
I can stand 6
"can be found" there, which might be a shade softer.
I think 7
the footnote noting the IRG, that the phrase above, and then 8
the footnote on the IRG is important.
l 9
On page 40, down at the bottom, notice the language 10 and the whole discussion leads, you know, in a consistent way II through this:
Tne Commission concludes, having noted that 12 uncertainties exist, that for the limited purpose of the i
13 fuel cycle rule, it is reasonable to base impacts on the Id assumption which the Commission believes the probabilities i
15 favor -- i.e. that bedded salt repository sites can be found 16 which will provide effective isolation.
I7 COMMISSIONER BRADFORD:
And that sentence, as I've i
18 doctored it, says just about what I would like to say, l
I9 assuming you provide the sufficient legal foundation.
20 I understand others feel that stronger things can 2I be said, but for my own purposes that sounds the way I have 22 modified it and it expresses my own feelings about the situation i
23 and that's all, it seems to me, we have to say in order to 24 support the --
am fsamt Reportm, n l
2258 084
6-9 jwb l
l 50 1
favor this, then you should base your impacts on the outcome i
2 you think the probabilities do favor.
I 3
COMMISSIONER BRADFORD:
It's not a matter of what l
4 I do believe the probabilities do favor, Leo.
It's a matter 5
of this not having been the proceeding.
And for hundreds of l
6 reasons, not having been the proceeding from which the l
7 Commission should be endorsing a particular waste management, 8
or even appearing to endorse a particular waste management 9
scheme, as anything other than a working basis assumption i
i 10 for fuel cycle impacts.
It is the most reasonable one we 11 can come up with at this point in time for assessing the 12 impacts of the fuel cycle.
It is not the proceeding out of i
13 which an endorsement of a particular waste management course 14 ought to come.
15 COMMISSIONER GILINSKY:
Probabilities may not favor 16 any particular course.
In other words, if you line up 10 i
i 17 courses, they may each have 10 percent probability.
18 COMMISSIONER AHEARNE:
I would guess, at the moment, 19 though, the probabilities are still in favor of bedded salt.
20 CHAIRMAN HENDRIE:
I certainly think so and would i
l 21 propose to say so.
22 COMMISSIONER BRADFORD:
The institutional 23 probabilities are tilted heavily that way, but that's not i
i 24 what we're saying.
l Am-Fwww Rmo,un, W.
l 25 COMMISSIONER AHEARNE:
Leo, what violence is done l
2258 085
6,10 jwb 51 I
if you dropped " bedded salt" from 39?
Just say it's the 2
Commission's judgment that a suitable repository site will be 3
found?
And then you retain what's on 40?
4 MR. SLAGGIE:
I think you're implying that a 5,
suitable bedded salt repository will be found, because that's 6
what you've been talking about all along.
end #6 7
You're just not saying it.
8 9
l 10 1
2258 086 11 1
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52 gsh i
MR. SEGE May I suggest a phrasing for the top of 2
page 39?
It is the commission's judgment that a suitable 3
repository will be found and that that repository is not 4
unlikely to be a be dded salt repository.
5 The commission notes, and.then it goes on.
6 COMMISSIONER AHEARNE: That would be fine with me.
7 MR. SLAGGIE: On first hearing it sounds all right.
8 I don't know that it's any different.
9 COMMLSSIONER AHEARNE: It is.
10 MR. SEGE:
This replaces the first two lines on
.11 page 39.
It is the commission's judgment that a suitable 12 repository will be found and that that repository is not 13 unlikely to be a bedded salt repository, though the 14 commission notes --
15 COMMISSIONER AHEARNE: I could go with that.
16 COMMISSIONER BRADFodD I would pre fer " assumption" 17 to " Judgment."
There's still something about the word la
" judgment" which says to me we have just conducted a waste 19 management proceeding and we just haven't done that.
20 Other than that, I could go with it.
21 CHAIRMAN HENDRIE: I'm af raid it's inevitable in 22 rule-makings, that ultimately, somebody has to make 23 judgments.
And I certainly agree with the word " judgment."
24 COMMISSIONER BRADFORD: For my purposes, for what I 25 am doing here, it's much closer to an assumption than what I 2258 087
53 28.07.'2 gsh I
would call a judgment as a regulator.
There are obviously 2
elements of judgment in choosing among assumptions.
But to me, 3
this is an assumption.
4 COMMISSIONER AHEARNE: I'll admit on my part it's 5
more of a judgment.
6 MR. SEGEJ Would it help to say that the commission 7
views it as a reasonable assumption?
8 COMMISSIONER AHEARNE2 There's a pained expression 9
from the gentleman on your right.
10 COMMISSIONER KEbNEDf s That's a judgment.
If we 11 conclude that it's a reasonable assumption, that's the same 12 thing as a judgment.
Isn't it?
13 COMMISSIONER AHEARNE Yes.
14 MR. SEGE I was trying to straddle words, apparently 15 not being successful.
16 CokNISSIONER KENNEDY: You straddled the word, but 17 wound up on the fence.
18 CHAIRMAN HENDRIE: I can, I gue ss. I could go along 19 with George's suggestion, but I would want it to remain the 20 commission's judgment.
21 COMMISSIONER BRADFORD: I will probably add a 22 footnote at that point if that is the pref erred term.
23 COMMISSIONER GILINSKY: Isn't it our judgment that if 24 you use this technology, you will end up with these e ffluents 25 rather than judgment that you are going to use this technology?
2258 088
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COMMISSIONER AHEARNE: It's a combination, Vic, I 2
think.
3 CHAIRMAN HENDRIE: It's more than that.
It's that 4
but it's also the judgment that this is a reasonable 5
technology to use as the basis for assessment of fuel cycle 6
Impacts to be considered in reactor licensing.
7 COMMISSIONER GILINSKY: That doesn't necessarily mean 8
that that's the technology you will be using.
9 COMMISSIONER AHEARNE* Right.
10 CHAIRMAN HENDRIE: It means it's a reasonable one to
.11 usa for the purposes of setting these values in the rule-making 12 procedure.
13 COMMISSIONER GILINSKY: That isn't quite what we have 14 here.
16 CHAIRMAN HENDRIE: If you think some other technology 16 is the one that ought to be used, or will be used, then as Leo 17 says, you have got the wrong thing in your rule.
18 COMMISSIONER KENNEDY: Not only in the rule, but in 19 the record.
20 COMMISSIONER GILINSKY: Not nece ssarily.
21 CHAIRMAN HENDRIE: You have gone three years barking 22 up the wrong tree.
23 COMMISSIONER GILINSKY: Of course there have been a 24 lot of changes in government thinking on this subject.
25 COMMLSSIONER KENNEDY Even this af ternoon we may find 2258 089
528.0,7.4 35 gsh I
some.
2 CHAIRMAN HENDRIE: If you're going to have generic 3
rules, why, you have to decide what you think today that you're 4
willing to let stand for some period until you redo the thing.
5 COMMISSIONER GILINSKY You may not be sure which 6
technology is going to be used, but it still may be reasonable 7
to pick one of them as a re ference case for use in reactor 8
licensing proceedings.
9 CHAIRMAN HENDRIE: Ah, but it's not appropriate to 10 pick anyone other than the one that you think most likely to 11 be used.
12 COMMISSIONER GILSINKY Oh, I don't know.
In other 13 words, there may be five of them and none of them have more 14 than a 30 percent chance of being the case.
15 COMMLSSIONER KENNEDY Or that it is one which is 16 wholly feasible for use.
You certainly cannot pick one as 17 a reference case which you would not expect to allow to be la used.
19 COWWISSIONER GILINSKY You know, it's within the 20 realm of plausible.
21 CHAIRMAN HENDRIE8 I'd hate to have to take that 22 case to court.
23 COMMISSIONER KENNEDY So would I.
24 COMMISSIONER BRADFORD* But the point here is to give 25 a real judgment of what one things is likely and not to state 2258 090
125.07.5.
56 gsh I
it necessarily in the way that's most amenable in court.
2 I mean, if somebody tells me that it's not enough 3
for me to go on the basis of an assumption based on something 4
that doesn't seem to me to be plausible, then I have to tell 5
you that I don't think that we can have an 5-3.
6 That's the difference between the choice of phrase 7
I'm suggesting and what's in here.
To the extent that one is 8
prepared right now to sort of dress this up as a waste 9
management policy judgment, then, of course, everything else 10 flows much more reasonably and is much more easily def ensible 11 in court.
12 But I don't think that this is even remotely the 13 proceeding out of which the commission ought to be making 14 waste management pollgy judgments.
/
15 CHAIRMAN HENDRIE: I don't regard the language the 16 council draf ted into this order as making waste management 17 polley judgments, aside from the one that says, we have looked 18 at the possible ways of dealing with these things in the 19 back end of the fuel cycle, and for purposes of establishing 20 some general generic rules about how those evaluations will 21 go in a given licensing case, we have taken what seems to 22 us the most likely direction for some of these actions to go 23 and evaluated the impacts.
And here they are, and here are 24 the values that are to go on the table on that basis.
25 Now we're not saying that this does not constitute 2258 091
57 528.07'.6 gsh I
the commission's final word on waste disposal repos.itories.
2 That's quite clear.
But I certainly can't agree with Vic 3
that just any old physically possible disposal scheme could 4
have been used here.
5 You know, you clearly have responsibility to 6
exercise some judgment as to what is the most lik61y one. And 7
it's my judgment that bedded salt, at least at the present 8
time, certainly stands as the most likely one and I'd like 9
to say that.
10 COMMISSIONER BRADFORD But the language that's here
.11 at the top of page 39 not only is stronger than thats it's 12 also stronger, albeit, I wouldn't have said.it that way 13 myself and what the commission has previously said about this, 14 which is that the commission has reasonable confidence that 15 a repository -- I don't even know the exactly language.
But 16 you've gone here from reasonable confidence to a judgment 17 that a suitable repository of a specific type will be found.
18 And it's done on the basis of a proceeding which had.the 19 wrong parties for that, the wrong material for that, and.the
, 20 wrong focus for that.
21 COMMLSSIONER AHEARNE: But d 7 you disagree with 22 George's version of it?
23 CohWISSIONER BRADFORD: With George's, I would only.
24 as I say, it seems to just remove the majesty from it a little 25 bit and call it the most reasonaole assumption at the present 2258 092
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- 58 gsh I
time rather than formalizing it as a judgment, as I remember 2
George's.
3 COMMI.SSIONER AHEARNE: What he said, it's the 4
commission's judgment that a suitable repository site will 5
be found and that it is not unlikely to be --
6 COMMISSIONER BRADFORD: " Judgment" seems to be a 7
little stronger than "has reasonble confidence."
8 COMMISSIONER KENNEDY: Can we use " reasonable 9
confidence"?
10 MR. SLAGGIE I. think that's going f arther than you
.11 need to go.
You can assume that something, as Chairman 12 Hendrie was saying, if you have a variety of alternatives, 13 you can pick the one for the purposes of this rule-making 14 that you think is the most likely, even though it may be 15 only 10 percent likely.
That's more likely than any of the 16 others.
But that would not necessarily rise to the level in 17 which you would want to say you have reasonable confidence 13 for the purposes of waste management policy, that that's 19 really going to help.
20 And here you have a very limited rule-making.
21 COMMISSIONER AHEARNE: I'm not going to get into that 22 debate..The last time I tried to --
23 COMMISSIONER KENNEDY: You lost.
24 COMMISSIONER AHEARNE: That's right.
Reasonable 25 confidence, I lost.
2258 093
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COMMI.SSIONER KENNEDY: But here I think you'd win.
2 COMMISSIONER AHEARNE: So I guess I would stick with 3
"It's the commission's judgment that a suitable repository 4
site will be found and that the repository is reasonably 5
likely to be in badded salt."
6 CHAIRMAN HENDRIE* And it is not unlikely --
7 COMMISSIONER AHEARNE: Yes.
8 CHAIRMAN HENDRIE And that it is not unlikely that 9
it will be in bedded salt, although the commission notes --
10 CO MMISSIONER KENNEDY: George's formula.
.11 MR. SLA0GIE: The page immediately preceding this 12 refers to the only real evidence in the record with regard 13 to the likelihood that a repository will be found.
And that 14 speaks to bedded salt.
15 So you are really --- the sentenes is supported.
16 COMMISSIONER AHEARNE: All I'm saying is that Ge rge's way of phrasing it certainly is my position at the 17 o
18 present time.
That is, that I have my own -- on my own 19 reached a judgment that you can't find a suitable respository.
20 And at the moment, the probabilities f avor that being bedded 21 salt.
22 COMMISSIONER KENNEDY 2 What I would still urge upon 23 you, even though I wouldn't care for quite that wording, if 24 you adopted it, is that you put for purposes of this 25 proc eeding, in f ront of it or in the middle of it or at the 2258 094
i28'.G7.9.
60 gsh I
end of it.
You don't want people walking away from this 2
document saying, it is the commission's judgment that bedded 3
salt is the way to go.
4 COMMISSIONER AHEARNE: If Leo says that that doesn't 5
make it legally deficient, I have no problem.
It's the 6
question of the --
7 I don't want to imbed, using a word that seems to 8
be -- I don't want to imbed something which would then undercut 9
the purpose of the document.
10 COMMISSIONER KENNEDY: If I understand, and I hope 11 I do, Commissioner Bradford's concern, if we say at the 12 beginning of this sentence, for the purpose of this 13 proceeding, it is the commission's judgment, I don't see why 14 we have to do anything else but leave it the way it was.
15 The concern, as I have understood it, as has been 16 stated so many times in this discussion, is that this 17 proceeding was not a proceeding to determine whether or not 18 bedded salt was a proper depository.
.'his proceeding was 19 to determine whether or not, given a certain kind of 20 depository, we could properly predlet the healthy e ff ects that 21 would arise from the fuel cycle.
22 Isn't that correct?
23 COMMISSIONER GILINSKY: WP re is the dependence on 24 the type of repository?
After all, if we're considering 25 Zero releases, where is the dependence on the type of 2258 095
28.07.*10 -
61 gsh I
repository come in?
2 COMMISSIONER BRADFORD: I.think the record doesn't 3
let you get there.
4 MR. SLAGGIE The. whole argument for zero releases 5
was based on the idea that there would be no. water that would 6
get into the repository to carry things away, that it would 7
be in a place where you would be unlikely to have intrusions 8
of people.
9 And the argument as to why this would work in bedded 10 salt is that if bedded is dry, water doesn't get in there.
.11 And moreover, a site would be picked. where there were not 12 various bore holes and where there was not natural resources 13 in the vicinity that might tempt people to make int ru s io ns.
14 Glenn, you have to say that given such a site, t
15 you'll have zero releases, but the next step is, is it 16 reasonably likely that such a site can be found?
17 I think that that is a key judgment you have to 18 make in order to get out the table based on the zero released 19 hypo the s is.
20 COMMISSIONER KENNEDie Given what it says on page 21 38, if I might read for just a second ---
22 (Reading from document.)
23 Now if one were to adopt Commissioner Bradford's 24 notion and say, for the purposes of this proceeding, the r efo re,
25 it is the commission's judgment that, wo ul dn't that ce the 2258 096
5:28. 0 7,'i l -
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perfectly reasonable formulation and leave the rest of the 2
sentence the way it was?
3 MR. SLAGGIE: It conveys to me the notion that you're 4
saying, we don't really make up our minds whether or not 5
a bedded salt repository can be found.
But in order to get 6
on with this rule, we're going to find that it can.
7 I mean I think you have to make a f actual judgment 8
that in your view, there is some likelihood that a repository 9
will be found, period. Not just for the purposes of this 10 proceeding, but as a factual judgment.
.11 You can't then make another judgment for the 12 purposes of some other proceeding.
You don't have to go as 13 f ar --
14 C0kNISSIONER BRADFORD* Stop right the e.
The point 15 is that we have got to be able to make other judgments for 16 the purposes of a host of other proceedings.
Sometime we're 17 going to be called on for licensing one of these things 18 and we cannot possibly have foreclosed a dif ferent judgment 19 at that time based on what we said in the context of the 20 S-3 rule-making.
21 Today, what has driven most of my editing through 22 this section is that this not be a document that people then 23 pick up and go out and say, ha.11elujah, the Nuclear Regulatory 24 Commission has spoken.
25 Bedded sal t it is.
And certainly, the language, as 2258 097
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it was there before --
2 COMMISSIONER AHEARNE: You're right on that.
3 COMNISSIONER BRADFORD* And the fact that we said 4
it in the S-3 proceeding as against some other proceeding, 5
would be lost on these people.
6 MR. SLAGGIEs Then you ought to add a f ootnote 7
saying, just the sort of thing I was discussing earlier, that 8
this does not necessarily mean that you have the degree of 9
confidence that.would, for example, be required if you were 10 going to make a basic safety finding with regard to the whole 11 nuclear power program.
12 If you want to put that in, you can say for the 13 purposes of this proceeding, we need only find that it is 14 more likely than not that such a repository can be found.
15 A higher level of confidence may, indeed, be required for 16 other findings, or would be, however you want to put it.
17 I think then we have to be a little careful on how 13 we draf t that.
I can't do it off the top of my head here.
19 But I think that that might answer your problem.
20 COMMISSIONER BRADFORD* A paragraph lika that would 21 help a lot.
22 COMMISSIONER GILINSKY: Now, of course, saying it was 23 a leading candidate.which. meant, as you earlier said, that 24 the chance might only be 10 percent, doesn't make -- saying 25 that bedded salt is the leading candidate, which you earller 2258 098
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64 7
gsh I
said, could mean that it only had a one-tenth chance.
2 MR. SLAGGIE: That's right.
It's a leading candidate 3
on a slow track.
4 COMMISSIONER GILINSKY2 That doesn't mean that it's 5
more likely or not.
6 MR. SLAGGIE: It's more likely than not. Yes, that's tr e. That's true, if there are several other candidates.
7 u
8 9
10 11 12 2258 099
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-V I4 15 16 17 18 19 20 21 22 23 24 25
CR 4528 MM*:jWb 65 I
- 8 1
MR. SLAGGIE:
I think you have to find that it is 2
more likely than not that a suitable repository will be 3
found on the basis of the record you have before you in this 4
case.
The only type of repository you can make such a t
I 5
judgment on is bedded salt.
So you are a bit boxed in.
6 If, on this record, you cannot find that it's 7
more likely than not that a bedded salt repository can be i
B found, then you have to maybe stretch footnote 26 or what-9 ever it was --
1 10 COMMISSIONER AHEARNE:
Could we satisfy everyone 11 by using George's phrase and starting the sentence by, 5for l
12 the purposes of this proceeding"?
Or would we at least get 13 three votes on that basis?
14 MR. SLAGGIE:
I would like to have the "for the i
15 purposes of this proceeding" made clear, so that it does not 16 look like we can change our minds back and forth.
We'll 17 decide whatever we need in order to get done what we want to i
18 do now.
I' I would much prefer that my suggestion of making 20 it clear that you might have to have a stronger finding for 21 other things -- the point is, "for the purposes of this l
22 proceeding," you only need a weak finding, and we can make i
23 that weak finding.
l 24 COMMISSIONER KENNEDY:
I trust you will find Am-Federal Reporters, Inc, 25 somewhat more fortuitous phrasing.
i l
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(Laughter.)
i 2
COMMISSIONER BRADFORD:
In fact, clearly, "for l
3 purposes of this proceeding," we don't have to make the same i
4 kind of finding we would have to make to find to license the l
l 5
repository.
i, 6
MR. SLAGGIE:
Certainly not.
l 7
l COMMISSIONER BRADFORD:
So as Dick was saying, it 8
doesn't come down to a matter of a strong finding or a weak, 9
or a pusillanimous one; but as you were suggesting earlier, 10 there was certainly something that could be said about increased degrees of certainty in other types of proce.edings.
f II I2 l
COMMISSIONER AHEARNE:
Could we say, "for the 13 purposes of this proceeding," do it as it stands with George's Id change, and then let Leo put in a footnote to explain what i
15 "for the purposes of this proceeding" means')
i 16 COMMISSIONER KENNEDY:
Only after I read the I
I7 footnote would I agree to it.
{
18 COMMISSIONER BRADFORD:
I certainly would agree to f
pre /. '. Lng on that as a working basis.
I think I did want to I
20 reread the section.
2I COMMISSIONER KENNEDY:
Let me note, my preference j
22 is as it was on the 17th of April to leave it the way it was, 23 the entire page.
24 COMMISSIONER AHEARNE:
Peter, I am not sure to sceJederal Reporters, Inc.
25 wnat you might agreeing.
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COMMISSIONER BRADFORD:
As I said, what my concern 2
before was that the thrust of these 8 or 10 pages on waste 3
management was to --
COMMISSIONER AHEARNE:
Lock in --
l 4
5 COMMISSIONER BRADFORD:
-- was to, in effect, l
l lock in and draw more of a conclusion than they should have i
6 7
promised.
What I want to do is reread the same pages with 8
the draft footnote with that change in it and see if it i
9 changes the tone sufficiently that I can withdraw my other 10 suggested changes.
I II COMMISSIONER AHEARNE:
Well, I can, at least for j
12 I
my part, I would go with that change, and that would be 13 acceptable to me.
l 14 COMMISSIONER KENNEDY:
Before or after you read 15 the footnote?
l 16 COMMISSIONER AHEARNE:
You are right, unfortunately.
I7 MR. SLAGGIE:
Once there is universal agreement, 18 will somebody explain to me precisely what you have agreed on?
10 COMMISSIONER KENNEDY:
I've agreed on the page the 20 way it was.
2I COMMISSIONER AHEARNE:
No one has really agreed, 22 unfortunately, but at least what I would propose is that you 23 start, "for the purposes of this proceeding, it is the 24 Commission's judgment that a suitable repository site will be Ace Federal Reporters, Inc 25 l found and that" -- go on to use George's -- and then you i
2258 102 l
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I were going to provide a footnote for what "for the purposes 2
of this proceeding" means.
3 CHAIRMAN HENDRIE:
Yes.
You would then try a d
footnote -- a new footnote 24, which would explain what we 5
mean by "for the purposes of this proceeding" along the lines 6
of your discussion.
l 7
MR. SLAGGIE:
That will prove noncontroversial, j
8 I'm sure.
j l
9 COMMISSIONER KENNEDY:
It won't be the subject of j
10 more than two meetings.
II CHAIRMAN HENDRIE:
And what is now footnote 24 12 beccmes 25, et cetera, et cetera.
Okay?
13 Now depending on how the footnote reads, I think I
l I4 I can go along with -- I tell you, I would not care to have 15 the fact that there is language yet to be reviewed be the 16 occasion for reopening discussion of other pages.
17 I would propose that we circulate and see if the 18 footnote language on this page, as soon as I can get three I'
people who will vote for a given set of language, why I'm 20 going to propose that that be it.
l l
2l COMMISSIONER BRADFORD:
I wouldn't suggest you do 22 it chronologically.
I think once you get three people who 23 agree -- you know, once you have a 3 to 2 vote, fine.
24 CHAIRMAN HENDRIE:
Obviously I go c12ar around the Ace-Federal Rooorters, Inc.
l 25 circuit, but I wouldn't propose --
2258 103 i
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COMMISSIONER GILINSKY:
What does " chronologically" 2
mean?
3 (Laughter.)
i 4
COMMISSIONER BRADFORD:
I will go to my three most likely --
5 l
COMMISSIONER AHEARNE:
I thought he meant me f
0 7
first, you second?
l 8
CHAIRMAN HENDRIE:
Who said " chronologically"?
Did I?
9 i
10 COMMISSIONER BRADFORD:
I said " chronologically."
I CHAIRMAN HENDRIE:
I don't want to have to re-edit i
12 the whole, and reargue the whole section of a dozen pages 13 because we're looking at a footnote.
Id COMMISSIONER KENNEDY:
Let me note that if I u
15 understood what Peter said, and I recognize --
I0 COMMISSIONER BRADFORD:
I think you are about to I7 make the point I was about to make.
18 COMMISSIONE1 KENNEDY:
Go ahead.
You know, he did I
say that he wanted to look at the footnote and this new l
20 formulation together in the 3ight of this entire section; 21 see what, if any, changes that he had either proposed or might 22 wish to propose would be appropriate.
23 COMMISSIONER BRADFORD:
No, I don't think -- what l
24 I
I'm taking this as is a general direction that it looks as Ace Federed Reporters, Inc.
25 though at least three of you are likely to be comfortable 2258 104
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with; whether I personally am comfortable w'ith it or not 2
sort of depends on what this revision leaves me feeling the 1
3 flavor of this overall section is.
I l
4 There are a couple of pages we haven't even come 5
to.
i 6
COMMISSIONER KENNEDY:
Let me say that I am in the 7
same mode.
I am not at all confident that I am comfortable 8
until I see this footnote and what the footnote says.
9 COMMISSIONER BRADFORD:
Okay,wellIcertainlyagree!
I 10 with Joe that there shouldn't be an occasion for going back II beyond the waste management section, or forward beyond it if i
12 we agree on the rest, but I would like to keep the waste 13 management section.
l Id MR. SEGE:
Mr. Chairman --
15 CHAIRMAN HENDRIE:
Why don't we advance on 40.
16 MR. SEGE:
I would like, if I may, to make a general I7 suggestion before we leave this footnote question, because I 18 think that discussions similar to that may be relevant to l
some other changes which are being discussed.
20 Wouldn't there be merit to having a rather prominent 21 disclaimer statement in the " statement of considerations,"
22 which says two things:
that the Commission has concentrated 23 on describing the likely environmental effects to an adequate j
24 approximation; but that this rule should not be read as an Ace-Federei Reporters, Inc, l
25 indication as to what the Commission will decide in licensing 2258 105
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71 l
1 proceedings which are yet to take place?
2 COMMISSIONER KENNEDY:
I don't know what anybody's 3
going to think that means, George.
4 CHAIRMAN HENDRIE:
What " licensing proceedings"?
j i
5 MR. SEGE:
Well, waste repositories, for example, 6
so they should not be viewed as a Commission judgment that it 7
will not be duly favored.
i 8
CHAIRMAN HENDRIE:
Wait.
What we are promulgating 9
is a very limited rule which says:
When you have a licensing 10 proceeding on a reactor, here's what you put in as the curies Il per year releases of a limited number of isotopes that are j
12 released at the back end, and everything else is free grabs.
13 MR. SEGE:
I expressed myself poorly, Mr. Chairman. ;
Id I was referring to the disclaimer to the licensing proceedings 15 in connection with repositories, waste repositories, and 16 reprocessing plants.
I7 CHAIRMAN HENDRIE:
It seems to me that there is 18 ample limitation and disclaimer in the language order as it 10 reads.
I don't know why anyone would read the matter to deal 20 with -- take it as guidance in other things, but doesn't this 21 footnote deal with it?
22 MR. SLAGGIE:
This footnote is turning into an l
23 all-purpose footnote.
I have to get back and draft it to see 1
24 what it deals with basically.
l ac r.o.r.e n oorters, inc.
25 COMMISSIONER KENNEDY:
I'm interested in reading it.
2258 106 l
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(Laughter.)
l 2
CHAIRMAN HENDRIE:
The footnote is just as you 3
sketched sketched it to us at one point earlier:
It deals 4
with what we have in mind when we say "for purposes of this 5
proceeding," it deals with the question, "well, do you mean 6
that every time you have a different proceeding, why you 7
feel free to run around and make a different assumption to l
8 suit that proceeding?"
Okay?
i 9
MR. SLAGGIE:
Right.
I p)
CHAIRMAN HENDRIE:
But since this is the section 11 on waste repositories, why I think -- I don't know.
I just 12 don't feel the need for a disclaimer, George, and I'm hesitant j i
13 to go back at this stage in the proceeding and say, "well, l
14 people will go away and draft new language, and then we'll 15 all consider that, and circulate remarks, and on May 15th 1
16 we 'll extend the damn thing for another two weeka. "
17 And I say, after lo these many years, it is high n$
time that the Commission came to a decision, and we have a jo document before us which four of us agreed on before we got
'I 20 to this table --
21 COHMISSIONER BRADFORD:
That's " chronologically."
I 22 CHAIRMAN HENDRIE:
Let's look at page 40.
23 COMMISSIONER KENNEDY:
Before we do, the footnote i
24 on page 39 also was recommended for deletion in its entirety l
4*Fews neornn.is 25 by Mr. Bradford.
l t
2258 107 i
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CHAIRMAN HENDRIE:
I can stand that.
2 COMMISSIONER KENNEDY:
I recommend it be kept in 3
its entirety.
COMMISSIONER BRADFORD:
Since I had deleted the l
I 5
entire text on which it was based, it seemed to be a logical 0
casualty as well.
But I had a specific reason, which was 7
my feeling that there were other parts of the IRG Report 8
which did not seem to me to be fully consistent with this.
9 I was doing that from memory.
And if in fact the 10 footnote is to stay in, I will just go back to find them and i
11 I
indicate what other separate conclusions.
l I
Now I guess one other point warrants being made i
13 there, though, in the context of Vic's earlier suggestion.
Id That is, the IRG Report is dated March 1979.
That, too, was 15 after all the parties had submitted everything they had to 16 submit, after argument was held.
The draft IRG report may I7 well have been part of the proceeding.
But if in fact 18 March 1979 reports are eligible for consideration, it seems to '
10 me that May is also not moved out.
O CHAIRMAN HENDRIE:
I think Leo spoke at some 21 length earlier to the fact that the footnote takes note of 22 the fact that the IRG Report was well known to all the f
23 parties and the draft was discussed.
i 24 Am Federal Reporters, Inc.
25 changed.
i l
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MR. SLAGGIE:
Not relying on it in the record.
2 You're using it as kind of cumulative, additional evidence, i
3 and I think it's worth the Commission's acknowledging that 4
they are aware of this report at this date.
i 5
COMMISSIONER BRADFOP.D:
I think we're saying something very similar about it.
6 7
MR. SLAGGIE:
That's correct.
It just has to have an end someplace.
l 8
t 9
CHAIRMAN HENDRIE:
Keep the footnote in.
10 Page 40, down at the bottom.
Since it's part of II the same sentence, we then lead on to the deletion of the 12 footnote on the bottom of page 41.
13 COMMISSIONER BRADFORD:
The footnote was deleted Id for other reasons.
15 MR. SLAGGIE:
What did we decide on page 40?
Are 16 we deleting "which the Commission believes the probabilities I7 favor"?
18 COMMISSIONER KENNEDY:
That's what we're discussing.
MR. SLAGGIE:
Oh, I'm sorry.
i 20 CHAIRMAN HENDRIE:
I must say, I need both the 21 old footnote 26, and I think the " probability" language is 22 correct.
i 23 COMMISSIONER GILINSKY:
When you say "the pro-
{
24 babilities favor it," do you mean it is simply the option, ta-Federst Reporters, Inc.
l 25 that's the greatest possibility; or it is an option which is 2258 109
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"likely"?
2 COMMISSIONER AHEARNE:
I mean the former.
3 COMMISSIONER GILINSKY:
In other words, it might 4
only be --
5 COMMISSIONER KENNEDY:
A 10 percent probability, 6
but that's a higher probability than anything else.
7 CHAIRMAN HENDRIE:
I think the former.
Say i' 8
again?
9 COMMISSIONER GILINSKY:
It's the leading candidate, 10 but it is not necessarily a likely choice.
II COMMISSIONER AHEARNE:
It has the highest probability, 12 but it is not necessarily the greatest percent.
13 CHAIRMAN HENDRIE:
I guess so.
It has to meet, 14 for me, the standard that it is the reasonable choice if you 15 are going to choose one of these possibilities for evaluation 16 a
purposes in this rulemaking.
And I think in fact the correct l
l 17 decision was made -- that, indeed, if you'll look among the l
18 various possibilities -- shooting it into space, digging it l
I' into the ground, whatever -- and you decide, well, it looks 20 like, you know, the candidate most likely --
21 COMMISSIONER GILINSKY:
You could describe it as "the leading candidate."
When you say "the probabilities 22 I
23 favor it," it has two possible meanings.
l 24 COMMISSIONER AHEARNE:
In other words, Vic, you
\\ce Federst Recorters, Inc.
25 would suggest "which the Commission believe is the leading i
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I candidate"?
2 COMMISSIONER BRMFORD:
I would have no problem at 3
all with the sentence which said "that base impacts on the 4
mediumwhichtheCommissionbelievesistheleadingcandidate."l 5
It's the further judgments about --
6 COMMISSIONER KENNEDY:
That the candidate itself 7
may be a selected one?
8 COMMISSIONER BRADFORD:
Well, no.
My difficulty 9
with this document is not with the fact that it uses bedded to salt, that it shouldn't then in any way become -- that the 11 Commission shouldn't be making anymore of a judgment about i
12 i
bedded salt than it absolutely has to for purposes of this 13
~
proceeding, because I don't think the record is there to i
Id support this judgment.
I 15 I mean, the Board wouldn't even hear -- this was 16 one of the exact subjects on which the Board was asked to l
e-8 17 allow cross-examination, and they declined to do it.
b-9 18 CHAIRMAN HENDRIE:
Gentlemen, we have some people 10 waiting.
In about one minute, I am going to have to either 20 adjourn or recess our discussion here.
I think we have a 21 reasonable obligation not to keep those people waiting.
They 22 have important work to do, too.
23 We have a fairly full day tomorrow.
I guess I 24 would recommend we come back and argue some more this Am.Federst Reporters, Inc.
j 25 I
afternoon.
2258 111 l
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COMMISSIONER AHEARNE:
Fine.
2 CHAIRMAN HENDRIE:
If that's all right with you.
3 And assuming that the discussion to which we must go does i
4 not, you know, extend unreasonably --
{
5 COMMISSIONER KENNEDY:
It is scheduled for what?
6 An hour?
l 7
COMMISSIONER BRADFORD:
An hour and a half.
8 COMMISSIONER KENNEDY:
So we will be reconvening I
9 at approximately 5:00 o' clock on this subject?
10 CHAIRMAN HENDRIE:
I hadn't expected it in fact to l
II run an hour and a half.
I2 MR. CHILK:
I would say closer to an hour.
13 CHAIRMAN HENDRIE:
I think -- I had been looking for l 1
Id an hour, or actually 45 minutes.
I think it's a straight-15 forward report, and some questions that we will get out of it, 16 if indeed it runs an hour, or looks like it's going to run an 17 hour1.967593e-4 days <br />0.00472 hours <br />2.810847e-5 weeks <br />6.4685e-6 months <br /> and a half, I am not sure how much time we can then put i
18 in.(n the assumption that we are likely to be able to be back r
here by 4:30, I would propose that we come back and spend 20 some more time this afternoon hacking away at this.
2I COMMISSIONER KENNEDY:
Fine.
i 22 COMMISSIONER AHEARNE:
Right.
23 CHAIRMAN HENDRIE:
So let us then not adjourn but 24 recess to the other meeting, which will be to the other l
Aco-Federal Reporters. Inc.
i 25 I
meeting.
2258 112 4
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(Whereupon, at 3:40 p.m.,
the meeting was recessed 2
to reconvene in another meeting.)
3 (Whereupon, at 5:15 p.m.,
it was decided to adjourn the hearing for the day.)
4 i
5 end #9 i
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22 23 24 co-Federse Recorters Inc.
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