ML19290A211
| ML19290A211 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 08/03/1979 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Gilinsky V, Hendrie J, Kennedy R NRC COMMISSION (OCM) |
| Shared Package | |
| ML19290A210 | List: |
| References | |
| REF-10CFR9.7 NUDOCS 7910190164 | |
| Download: ML19290A211 (4) | |
Text
t CR 7038 '
la AR i
1 UNITED STATES OF AMERICA I
2 NUCLEAR REGULATORY COMMISSION 3
PUBLIC MEETING 4
CONTINUATION OF BRIEFING SY H. DENTON 5
ON CONCLUSIONS OF TMI LESSONS LEARNED RECOMMENDATIONS l
1 6
l
[ Continued from 9/6/79]
7 8
l 9
Room 1130 10 l 1717 H Street Northwest Washington, D.C.
11 i
Friday, September 14, 1979 12 l
The Comission met, pursuant to notice, at 2 12 p.m.i
(
13 BEFORE:
I 14 DR. JOSEPH M. HENDRIE, Chairman.
15 l DETER A. BRADFORD, Commissioner.
16 j VICTOR GILINSKY, Commissioner.
17 JOHN AHEARNE, Commissioner.
'3 i!
ALSO PRESENT:
i?
P Mr. Bickwit 20 ;l' Mr. Malsch 1
Mr. Snyder 21 Mr. Denton Mr. Gossick 2226 078 22 Mr. Rosenthal Mr. La::o 23 f,[
Mr. Englehardt 24 I
- , 4,rai Reoorters. Inc.
23 jj 1,1,1,o y
i
t e
2 1
.P _R.O. _C _E.E _D_.I.N.G S 2
(Chairman Hendrie not present.]
3 MR. GILINSKY:
The Chairman will be delayed for a 4
few minutes and asked us to get going, and he will join us 1
5!
shortly.
l 6
The subject before us are the choices for the i
7 Commission in getting more deeply involved in the licensing 8;
process and in taking a -- having the Commissioners themselves I
9I decide on the issuance of reactor licenses.
i I
10 General counsel will lead the discussion.
M..
I 11 '
Bickwit.
l 12 MR SICKWIT:
You have a paper from our office i
13 dated August 3rd, in which we responded to a cuestion from j
~
14 Commissioner Ahearne on if the Commission wants to involve 15 itself more deeply in license participation, what procedures 16 l should it use.
And we recommend a given procedure which I i
17 l can outline briefly for you.
t
'5,
It is really the procedure that was discussed et I"
last week's meeting, at least at this end of the table, u.c 4 22, it constitutes our best judgment as to how to proceed.
21 Basically we would rec 0= mend that you bifurcate a
22 proceedings, ongoing proceedings, into TMI and non-TMI 23 d issues, issue a policy statement to say that.
Ask the i
24 Licensing Boards to make a record on both parts of the j
- ..t.r meoorters. inc. g 25 '
[ bifurcared croceediac.IssueaninitialdecisionontIa2226 O
~
~
3 I
non-TMI issues.
Issue a recommended decision on the TMI 2
issues, and refer up to the Commission those issues, those 3
latter issues.
I 4
By dividing the issues and making clear that the i
5 Boards are not to issue a full initial decision, you will not I
6 trigger the i= mediate effectiveness of this rule, and thereforej licenses will not issue until the Commission has considered 7
the TMI issues.
8 I
1 The u.v.derstanding would be that when the Commission '
9 l
10 has reviewed the TMI portion of the proceeding and decided l
11 whether or not to follow the Board's recommendation, decides 12 that the license can issue on the bas ~1 of this review of the I
13 Board's record.
The license may issue at that point.
l t
14 The Appeal Board would be involved in the following 15 way:
16 With respect to the TMI issues, there would be no i
17 review of the initial decision.
The Commission would be making 3
i
- 5 the initial decision.
We believed it would be irregular for 1:
the Appeal Board to review the Commission's decision on those 22..
issues.
I 21,
With res.>ect to the non-TMI issues, the Appeal Board a
22 l would review the decisions of the Licensing Boards in the way i
23 !
that it now does and in the way that now is the case.
No i
24 license would be held up during the Appeal Board's "eview of 1 E. 88 AtOOrters,Inc.'
25 the non-TMI issues.
So if you had a situation where af ter 1
2226 080
I 4
1 this bifurcation the Commission decided that a license should
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issue, the appeals process was running on the non-TMI 3
portions of the decision, the license would issue after the 4
Commission acted and during the Appeal Board review which i
5 could lend itself to ultimate Cocmission review of the non-6 TMI issues.
7 COMMISSIONER AHEARNE:
So immediate effectiveness 8
would be suspended only until such time the Commission has 9
acted on the TMI issues?
10 MR. BICKWIT:
That's right.
And technically there 11 would be no suspension because by its own terms, it is not i
12 triggered until you have a full initial decision, which you j
13 would not have -until the Conmission actually acted on the 7
t 14 recommendations.
i g
l IS I COMMISSIONER GILIUSKY:
May I just interrupt you l
i 16 l for a minute?
i i
17 1 Is there a clear division between so-called TMI
'. 5 issues?
g
'i i?
COMMISSIONER AHEARNE:
You'll have to draw that 20 +
to the best degree that you can.
It will be -- there will 21 obviously be some difficulty in the Board's fitting in the g
22 '
categories that you described which particular issues you had 23 "
in mind for your issue, and which you did not.
2226 081 24ll
??e anticipated that review of the Board's
.i neconen, ine. !j 25 d decision on that particular cuestion would be taken II
5 immediately by the Commission, and the consequences of a mis-characterization by the Licensing Board would be anomalous 2
3 under this procedure'or under this procedure, a record would i
be required to be made on both sets of issues.
4 If the Board errs in its view, you simply tell 5
them that they erz and change -- and tell them to change 6
the recommended decision to a'n initial decision, or vice l
7 versa.
8 I
COMMISSIONER GILINSKY:
Do you have any sense for 9,
10 how much would be in each basket?
11 MR. BICKWIT:
It's entirely within your discretion.
i 12 We have envisioned that you might, as a starting point, look at the Lessons Learned report and the Emergency Task Force 13 i
14 report, Emergency Preparedness Task Force report, and say 15 those issues are TMI issues and ue want -- we want to have a 16 look before any license issues, based on decisions on those
- 7 !
issues.
i But what you are really talking about here, the
,3 ;,
a P
breakdown needn' t be between TMI issues and non-TMI issues, i
just any issue that you want to have a look at before the
- ',l 1
license issues should be designated under the terminology 2;,
L il 22 h we've been using as TMI issues.
And maybe issues related d
to TMI that you don't feel you need to look at.
8 2226 082 23,
COMMISSIONER AHEARNE:
Len, what would be the 24 ;
f4
.at Recorters, Inc.
25 y advantage of that process over one in which you still kept
!l
'I
6 1
the App?.a1 Board in, but you had them do an initial review of 2
TMI issues and forward enat up?
3 MR. BICKWIT:
That was the major alternative that l
4 we addressed and the advantage of this is basically one of i
5 moving the process along quicker.
6 If you ask for Appeal Board review of the TMI issues I
7 prior to the issuance of the license, then however long it 8
takes the Appeal Board to considc those issues in its review I
i 9
process, the licensing process is delayed by th At degree of l
10 time.
11 C"fsetting that as a competing consideration, you i
12 lose the advantage of Appeal Board review.
Not only do you I
13 lose it before the license issues, but under this scheme, you Id lose in pait because basec on the judgment that you don't want -
l 15 your own decisions reviewed by the Appeal Board.
Losing it 16 before the issuance of the license is not terribly significant, since the reason for this procedure in the first place is
'3 that the Commission is not entirely clear on what its policies
- c 9
Y ought to be on issuance of licenses.
The Appeal Board theorecically is designed to II,:
apply Commission policy, so that to ask che Appeal Board to i
22 make those coliev judgments would be anomalous.
Lnsing it 23 after you've made your policy, I think, is the ma'or down side 222b 24 to this proposal.
- ,s...w newnm. ine. ;
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We have discussed this matter with the Executive c
it e
7 l
1 Legal Director's office and Tom Englehardt today offered us a 2
suggestion which we'd like to adopt, which is instead of 3
dividing it into initial decision and recommended decision, 4
that you divide it into --
5 (Chairman Hendrie entered the conference room 6
at 3:22 p.m.)
i 7
-- initial decision and partial decision on non-i l
8 TMI issues and partial decision on TMI issues.
l 9
The partial decision on TMI issues taking the 10 place in the procedure that I have just outlined of the 11 recommended decision on the TMI issue.
l 12 The advantage of doing that is that then exceptions 13 when exceptions are filed to the partial initial decision, I
14 you retain the option of considering only the exceptions; 15 '
whereas if you go with our original suggestien of a recommended:
I 16 decision on the TMI issues, it is not clear that you can simply :
17 consider the exceptions and base your judgment on your
- 3 o consideration of those exceptions.
1 Most probably you would have to consider the 1
22 j' entire record and the recommended decision having no force 2:
in and of itself, so that with that modification which if you J,
22 l adopt it would require a rules change because if you adopt it 23 ll[ then, you are no longer in the position of delaying a full 24 ]
initial decision until the Commission considers the matter,
.. A.r.i n.conen. inc. a
'l 25 :
and the i= mediate effectiveness rule would therefore be 9
n 2226 084
8 I
triggered by the two partial initial decisions which added 2
up to a full initial decision.
3 So if you go this route, we would recommend a 4
change in the immediate effectiveness rule so that you would l
5 be able to carry out what is in essence this proposal.
l 6
COMMISSIONER AHEARNE:
In the review process you havh l
7 described, which would have the -- I guess the Commission 8
staff providing the review of the Licensing Board's hearing as i
9 opposed to the Appeal Board going through it the first. time i
10 for the TMI-type issues, do you see that there would be a II doubling of the effort required if the Appeal Board was in that 12
-- what I'm asking is does the Appeal Board, going through I
33 those -- just focus on the TMI side -- going through those j
I I# l issues once and scrutinizing the record, go through a lot of l
15 the process that in the absence of their doing it, your 16 staff would have to do, so that would it be correct to say
.,f
j that it's not a doubling of the time that the Appeal Board is 3
p in it, but maybe some lesser f actor increase?
..l".
MR. BICKWIT:
I don't really see that.
In each J
20 j case you have a decision coming to our Staff.
In one case it I
' ',j is a -- under this proposal it's a reccmmended decision or 22 '
partial or initial decision of the Licensing Board, and we i
23 look at that decision and attempt to advise you on that.
24 In the other case, you've got an Appeal Board
.r.i aeooners inc.,
2 '< '
decision coming up and I see it as the time given to the i
l' 2226 CSS
9 1
Appeal Board to review it as total time lost.
2 I don' t like to use the description " lost" --
3 (Laughter.]
l l
4
-- because it is obviously very helpful to have the l 5
Appeal Board review it.
But your tradeof f, really, is --
6 that is yorx tradeoff:
Do you want the benefit of the 7
Appeal Board's review enough to justify the delay in 8
licensing that you hav.e to pay to get it.
9l COMMISSIONER AHEARNE:
Alan, what kind of delay --
i i
10 or I guess " delay" is the wrong Word -- what type -- what j
ll amount of additional time do you think would be required?
l i
i 12 And I recognize that it can be a large spectrum, because it l
l
(
depends upon the case and the range of issues that are TMI.
j 13 i
14 But are we -- should we be thinking in terms of half a year, 15 l several months?
16 l MR. ROSENTEAL:
Well, under the present procedure, I7 there is a time allotted for the filing of exceptions.
There 3
is a period allotted for the filing of briefs.
The Appeal Boards normally, although not invariably, choose to hear 22 )
oral argument on some or all of the issues that are presented 21 by the appeal.
And then there is a decisional process.
1 22 By the time oral argument is held, it normally 23,
runs -- the interval between the filing of the Licensing 24 Board's initial decision and the oral argument is around 9._.<m neoonm. inc. 3 25 '
four to five months.
What time 'is consumed in th
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l
10 1
decisional process after that depends, and there is nothing 2
that says that the Appeal Board cannot factor out for early 3
consideration and disposition those issues labeled "TMI issues. '
4 So that they can be then considered by the Commissioner while j
l 5
the Appeal Board is considering the balance of the case.
i 6
I think I can assure you that if the Appeal Board 7
ended up in so-called critical path which has not been 8
normally in the past, except in those few cases in which stays 9
have been granted, everything would be done to move the cases 10 along at a pace which is expedited, but still recognizes the 11 importance of, among other things, allowing a reasonable time I
12 for the briefing of the issues.
l l
13 If I may just say one other thing in this line, I 14 can't agree" with the General Counsel that the time that i
15 the Appeal Boards would spend in these cases would be totally 16 duplicated, if then you had Commission review, I would doubt it --
17 I may be entirely wrong -- that what the Commission would have
- 3,;
in mind if it went through the two-tier review would be a ii F
re-examination, cover to cover, of the entire record.
I 20 In other words, going over once again following 21 the Licensing Board and Appeal Board reviews of those records, 22 the entire reccrd to make its own independent determination 23 h on every factual matter that's raised.
24.
i tend to think the Commission's intended involve-
- ,.t.r i neoorteri inc. ]i 25 [
ment is a little bit different.
s 2226 087
't
.I i
11 1
Now if that is the thought of the Commission, that 2
they wish to substi'tute themselves, the Commissioners, for 3,
what the Appeal Board does now, I would submit with due 4
respect that you're not presently staffed to do that.
5 Facing this matter perfectly realistically, the i
6l Appeal Panel at full strength has five full-time panel members, I
i 7
plus one half-time panel member, plus a full-time legal counsel',
8 a full-time technical adviser, and two full-time law clerks I
9 or legal interns.
10 Our single mission in life in the employ of this 11 Commission is carrying out appellate reviews.
The Cemmissioners I
i 12 themselves -- and obviously the members of the Office of I
i l
13 General Counsel, as well -- have many other demands made upon l
14 their time.* And so that I think that it's easy enough to 15 say, as Mr. Bickwit does,. that the Commission just steps in 16 ;
here and we're out of the act.
I 17l I think before you got that suggestion, you might
'.5 want to consider whether you have the resources at present
!i 1:
now.
20,
I suppose it's possible to go out and not obviously 21 employ additional Comnissioners --
22
[ Laughter.]
23 h,i
-- but employ members of the Office of General 24 counsel.
j
,A
. aeoonm. inc. I 25 0 COMMISSIONER AHEARNE:
Well, there are a lot of f
2226 088 a
s
12 1
suggestions that are going to be raised in the next few months.
2 MR. ROSENTHAL:
But I think that is something that 3
when you are deciding what you want to do, I think that's 4
something you have to bear in mind, and I think also you have 5
to consider, if I fully understand the desire of the 6
Commission, to be involved itself in at least the TMI issues, 7
if they can be ccmpartmentalized, and that is something I have 8
some doubt
- Lout.
I can see Laat their desire to be 9
involved in the consideration of those issues before licenses i
10 issue, but I think there has to be some consideration as to 11 I just what that involvement should be.
Whether it is really f
12 the kind of involvement that the Appeal Boards have and again
(
13 whether at least as matters now stand, you are equipped, with l
l 14 the support that you have, to carry out that mission.
I 15 COMMISSIONER AHEARNE:
Alan, can I ask another 16,
question, and also, Bob, I'd be interested in your comment:
l 17 !
One of the concerns, at least that I had, was that l
Il n reference by Len in his comments that in some of these areas, P
the Commission has not really reached clear policy decisions.
9 20 It has not laid out very explicitly what its position is, 2
its emergency planning, as an example, siting policy as
- l a.
22 ll l
another example, f
23 ll And given that fluid situation with respect to 24 -
some of those areas, to what extent do you believe that either
.,-6,,aa.ooners,inc.l 25 ;l the Licensing Board or the Appeal Board could go through 4 ts 2226 089 i
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13 I
normal procedure and address those which are very explicitly 2
TMI,related issues?
3 MR. LAZO:
Well, of course, from the Licensing 4
Board's position, they are in a position of having to make 3
certain that the regulations as they are presently written 6
have been complief with, and as the regulations are -- I may 7
not be on.
8 COMMISSIONER AHEARNE:
It has to be very close.
i 9
MR. LAZO:
As the regulations are amended on a 10 i
day-to-day basis, from time to time, then the Boards, of course:,
11 apply the new regulations.
12 We are always very alert to Commission policy and i
watchful for it, so they are in a position to change.
But l
I3 14 they would have to -- they would have to use che regulations 15 :
that are presently in place.
l l
16 l i
MR. ROSENTHAL:
I would agree with that.
The l
Appeal Boards, in their review of' Licensing Board decisions, "j
obviously are called upon to apply existing Commission policy
!l as articulated in regulations or other sources.
g 20 i
I think there may be some modest problem presented, t
2 no matter who is conducting the appellate review.
If a case i
22 is tried before the Licensing Board on the basis of the 23 ll dictates of existing Commission policy as derived from whatever
- i 24 source, and then when it gets up on the appellate review,
.. m.,.i n. cort.,s.inc.,
25 '
3 either first or second stage Commission appellate review,
-i l'i 2226 090
14 1
either as a substitute for the Appeal Board or as the next 2
step in the chain, the rules of the game are drastically 3
changed.
Now it's nothing, I suppose, that is unlawful about 4
that.
5 I think what it's going to mean in a lot of cases 6
is that the proceeding will have to be remanded to the 7
Licensing Board unless the Ccmmission itself wishes to take 8
evidence for the introduction of additional evidence on the i
l 9
matters which are -- have come to the surface for the first l
l 10 time as a result of new Commission policy.
I t
11 And again I think you have recognized that, but i
i 12 that, it seems to me, you have really -- it's true that if l
(
the Ccmmission reviews the Licensing Board decision in the 13 1
14 first instance, it can plug those new policy decisions in at 15 an earlier stage than if the Commission steps in only af ter 16 the case has been through the Appeal Board.
17,
on the other hand, I suppose if the Commission l
- 3,;
does reach some new policy conclusions along the way, those I?
conclusions can be articulated and they can be plugged in s'i 20 q by a Licensing Board or an Appeal Board.
It wouldn't have 21 to wait until the case reached the Ccmmission level.
f 22 l MR. FNGLEHARDT:
If I may interject a point, 23 l there is another possibility in terms of an alternate that 24 "
could be considered by the Commission, in addition to the one SA as Reoorters, Inc.
25 that's been presented in the General Counsel's paper.
l 0
2226 091
15 1
That would be to simply suspend the immediate 2
effectiveness rule and allow the hearing record to take its 3
normal course through the hearing and to the appellate process, 4
but preserving the Commission's full discretionary options 5
prior to the decision becoming effective, to inject the TMI 6
issues as necessary, and policy and remand as appropriate to 7
the Licensing Board or the Appeal Board, again as appropriate,
8 for further consideration, reopening: the record on such issues 9
as the Commission feels appropriate for the Boards to hear i
10 before the license becomes effective.
11 That's another possibility.
12 COMMISSIONER GILINSKY:
Where would you have the i
13 Commission step in?
i 14 MR. ENGLEHARDT:
The Commission could step in at I
i 15 '
the end of the review process, af ter the Appeal Board has seen i
16 i the whole record, the normal record, and the matter comes i
i l
17l before the Commission for its normal review ceriod.
1 13 ll The Commission has full control, they can say, "We will now review this," and hol?. it there as long as they elect ir il 20,l to do so, in order to ensure that they have incorporated all 21 of the TMI-related tasues in that record, or considered them 22 l all, and as appropriate dealt with them, i!
23 This would have the effect of somewhat simplifying 24 this process, ce% ce aecone,. inc. l 25 ;j In other words, you can suspend for a specific a
l' i
2226 092 0
16 1
purpose the Lunediate effectiveness rule, which can be done 2
procedurally quite rapidly, because it is a procedui 21 change, 3
it doesn't necessitate public comment.
You can just make a 4
change of that sort and proceed to hold the record open until 5
you are satisfied that everything's been incorporated before 6
the decision is made effective and the license -- or what-have-7 you -- issued.
8 COMMISSIONER GILINSKY:
This would mean in effect 9
a plant can't start construction or operation until the i
i 10 proceeding is gone through all the --
l Il MR. ENGLEEARDT:
Unless the Commission decides to 12 reach down and direct that the record be certified to it
(
13 according to the present rules.
You always have that option.
Isitpossibleorpractical{
14 COMMISSIONER GILINSKY:
15 to have the Commission step in af ter a Licensing Board decision:
i 1
i 16 '
and examine the decision in the case, deciding which aspects 17 it would like to review, and have others proceed onward I3 a in a way similar to the way General Counsel was suggesting?
l That possibly of the ones that it decides to take up, it 20 ;j might also there decide that it would like special cuestions
- l 21 to be, examined by the Appeal Board?
The Commission would
.f 22 simply decide at that point whether a construction permit i,l 23 '
should be -- or operation should be delayed or not, depending 24 on how -- what importance ir attached to the issues?
,c..%.ceneooners.inc.;
25 COMMISSIONER AHEARNE:
Would you propose this be U
2226 093 1
17 1
done as a result of the review of the record or monitoring of 2
the progrets?
3 COMMISSIONER GILINSKY:
Well, a review of the 4
decision certainly in a check against certain points that 5
the Commissioners are interested in.
But my cuestion is 4
6 really this:
7 Could the Commission do that and yet serve as 8
the final Appeal Board, in effect?
9 MR. ENGLEHARDT:
To a certa: 3 attent, you run into I
10 the difficulty Mr. Rosenthal has described, in that you have l
11 ertablished a fairly substantial workload for,* ourself and a 12 separated staff that you would have to provide for yourself
~
13 to deal with some of the technical issues, if that's the depth 14 that you wanted to get into the matter.
~
i 15 But the present rules of the Commission provide l
16 the Commission with a broad discretion and scope in how they i
17 l want to deal with these things, and I think the General Counsel's 23 b paper has made an excellent point in trying to define that degJee of discretionary latitude that the Cc= mission does have,.
P 4,
20 F and in the proposal that I surfaced as an alternative thought, 21 under the suspension of the immediate ef fectiveness rule, q
22 you would have the same kind of freedom of action to deal 23 with the issues as you saw them, provided, as you always must
.i 24 I be concerned with, that due process was available to all the
- .w.r.i n oomn. ine. ;
25 participants in the proceeding, and that the APA was not 0
2226 094
18 e
I violated, and that you ultimately reached yovr decision, what-2 ever that may be, based on a record.
3 That's the key to this whole matt er, is that it's 4
based on a ree::ord, and that all the participants be afforded i
l 5
due process to contribute to the making of that hearing 6
record.
7 COMMISSIONER GILINSKY.
I wouldn't expect such an l
8 initial Commission look to be comparable to what the Appeal l
l 9
Board does now, except possibly in selected areas.
j 10 l MR. LAZO:
May I coment on that?
II It seems to me that with a very minor changc in 12 the immediate effectiveness rule, simply providing that 13 after a decision had been issued, that no decision would --
1 Id no license would issue until the Commission authorized it, 15 that it's perfectly possible for NRR, for example, to come 16 before the Commission and say, "No, the Licensing Board has 17 issued an initial decision in a construction permit proceeding M h which is favorable to the Applicant.
The critical issues that were resolved in that decision are 1, 2,
3, and 4.
Now may we il 20 have permission to issue the license?"
21,;
And at that time the Commission could decide i
22 j there are one or two of those issues, or perhaps none, perhaps S
43 il 1
all, that they would like to have a look at, and so they
- I Id would withhold cermission to issue the license.
$ A a m oomri. inc. )
25ll The same thing really could happen very easily in
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3 2226 095
19 1
the operating license proceedings, becauce there again the 2
Commission staff in NRR could come before the Commission and i
3 say, "The license has -- the initial decision has been l
)
4 issuod, we've complete d our review on all other matters l
1 5
that were not in controversy.
These are the key issues."
i I
6 COMMISSIONER AHEARNE:
We couldn't question NRR, 7
could we, so it's really --
i 8
MR. LAZO:
They could identify the issues.
I 9
MR. ROSENTRAL:. You make allowance for the input of 10 the parties, you see.
This is not simply the Staff, the 11 Licensing Board, the Appeal Board and the Commission.
12 Among other things, the parties have to know when the Licensing Board decision is rendered, where they take their!
13 l
14 dissaticfaction with regard to particular issues of the whole case, and also there is the whole matter of the parties being 15 16 able to seek' any kind of interim relief, such as stays.
17 In other words, the parties might wish to endeavor 25 ;l to persuade the Commission that this is an issue that's
!i P
going directly to the Ccmmission, that it should direct that il 20 !'i no license be issued until after that issue had gone through a
21 ;i whatever appellate process had been established.
i 22 It seer. to me that it's a very cumberseme procedure, 23 j in going up two potential tracks.
24 L CHAIRMAN HENDRIE:
Your propcsal was simply that
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25 d the immediate effectiveness rule would allow for a Commission 0
2226 096
20 1
-- specific Ccmmission check at that point, to see whether 2
we're willing to allow the license to issue, while the 3
appellate process and perhaps subsequent commission review l
4 went forward?
5 MR. LAZO:
Yes, sir.
6 CHAIPMAN HENDRIE:
Or whether we felt that it 7
should hold, and might very well recommend to the Appeals 8
Board that certain items merited early, urgent and early 9
consideration in their look at the case?
i i
10 MR. ROSENTHAL:
My point sim; * 's= m, Mr. Chairman, 11 that I thought that the parties would have to be given an I
12 opportunity to express their views to the Cc= mission and j
l 13 what course the Ccmmission wished to follow.
I 14 In other words, it would not simply be a matter 15 of NRR --
16 l CHAIRMAN HENDRIE:
You might then have a staff paper i
17 that outlines the essentials and ask the parties to comment.
11 3 l; MR. ROSENTHAL:
Or some kind ci procedure whereby
!I i:
the parties would have the opportunity to express themselves, n
7 CHAIRMAN HENDRIE:
I see a waving 1.and in the back 20 d
21 area.
Please, why don't you use this mike right at the front 22 of you there?
23 )
MR. MILHOLLIN:
As you all know, I've given some 24 ;:
thought in recent months to the subject of the immediate
- shral Reporters, Inc. I d
25 '
effectiveness rule.
Whenever those three words are used
!i l
2226 097
21 I
together, my blood starts flowing a little faster, and so I 2
thought I could give you the benefit of my views on the 3
subject.
4 I guess I would say that from the thought I've 5
given to the problet the solution simply abolishing or 6
suspending the rule indefinitely has disadvantages, and I 7
think one disadvantage would be that in the hypothetical 8
case where the Applicant is ready to do work or go forward 9
and operate a plant, but there is no TMI-type issue in his j
10 case, it seems to me to be an unnecessary waste of resources 11 to postpone the effectiveness of that case.
12 So I would suggest a system by which you separate I
13 the cases which have TMI-type issuas in them from the cases
(
i' 14 which don't, and let the ones which don' t have TMI-type 15 issues in them go through the process that they normally j
i 16 '
would, which means that in those cases the initial decision 17 !
would become i= mediately effective when the Licensing Board Uh render = it.
i-U COMMISSIONER GILINSKY:
You say don't have TMI-type 20 "
issues in them --
21 '
CHAIRMAN HENDRIE:
That may be a limited group.
22 l MR. MILHOLLIN:
I'm assuming that there are such n
23 dlcases.
If there aren't any such cases, and if you're going
!a 24 [
to have to look at each case frcm point one, then perhaps a.N eai aeconers, inc. ;
25 j you do have a different problem. If fou decide you're going d
l 2226 098 u
O 22 I
to do that,'and' you decide that TMI in affecting every case 2
which is now pending, and that you want to look at every 3
case, then perhaps you could do it to the stay standards, I
4 then have a bifurcated appellate procedure.
5 COMMISSIONER AHEARNE:
Perhaps you could do it 6
through what?
7 MR. MILHOLLIN:
Through some use of the stay device.
8 COMMISSIONER GILINSKY:
There you'd be relying on 9
outsiders to request a stay; is that what you had in mind?
10 MR. MILHOLLIN:
No, I think you could arrange to l
11 have the -- I guess what I mean is you should have some 12 decision en whether to postpone effectiveness, and I think l
i I
13 the Licensing Board decision which has been recommended to
(
14 you is a good device; that is, have the Licensing Board 15 decide whether its decision should be effective, given the l
16 fact that there are TMI issues in it.
l 17 l COMMISSIONER GILINSKY:
Have the Board decide i
I3 a whether its-decision should be effective?
I?
MR. MILHOLLIN:
Yes.
Have the Licpnsing Board 3
20 ;
decide,-..giyen_the TMI issues which the Licensing Board now, 21:i under the General Counsel's recommendation, is going to 22 decide the case, how the Licensing Board decides whether 23 the existence of these issues is such that the decision 1
2226 099 24 [
should not be immediately effective.
- t Sw.eral R eoorters, Inc. '
l 25,
So that in each case you'd have the Licensing Board I
9
1 23 I
tell you whether the possible implications of TMI should 2
cause that decision not to be immediately effective.
3 COMMISSIONER GILINSET:
And if there is no Licensing, 1
4 Board?
5 MR. MILHOLLIN :
Well, presumably --
6 MR. BICKWIT:
If there is no Licensing Board, you 7
don't have to deal with any of this.
You can have the Staff 8
come in and do this.
9 MR. MILHOLLIN:
I assume you are worried about i
10 the cases which are now in the process of being adjudicated, Il so you could ask uhe Licensing Board, which knows the record, 12 whether there are such issues.
Then if the Licensing Board i
13 says yes, there are TMI-type issues and we don't think j
6 Id because of these issues the decision should be immediately l
i 15 l effective, then that decision could be reviewed through j
16 the system and each party would have a chance to convince I7 the decider up the line whether the Licensing Board was right.
'3 p It seams to me that's superior to having Staff l",
papers in which this issue is going to be decided without 20 full adjudicatory participation.
I would think that someone q
fl who doesn't want the Commission to decide there are TMI-related
- i 22 I issues or that issue should be disposed of in a certain way,
- - y' would be unhappy in not having a full chance to present its 24 d case en that subject.
e 6eral Aeoorters. Inc. ;j 25 h Well, I've given you the benefit of what I think 2226 100
24 I
about it.
2 COMMISSIONER *BRADFORD:
It's possible to think 3
of a case where TMI would not be litigated and later to have 4
a case where the TMI issues may have been resolved in a 5
previous case.
6 I must say I don't see much possibility of a case 7
right away that doesn't have any TMI issues in it.
8 MR. ENGLEHARDT:
The only cases you might run 9
across would be cases that are basically materials cases.
i 10 Materials, licensing cases, enforcement cases, things of that Il nature, where you could run into a non-TMI-related matter.
12 COMMISSIONER BRADFORD:
In effect, a'non-reactor
(
13 case?
14 l MR. ENGLEHARDT:
Yes.
The rule does apply --
1 I
i i
15 COMMISSIONER AHEARNE:
Tom, in your -- I'm not I
i I
i 16 l sure I fully understood your suggestion in that it almost i
1 17l sounded very similar to a modification of the one that I'd
\\
i asked Lan about; namely the case I had asked Len about was 3
N I
the Licensing Board hears it out and recommends and makes its a
20 decision, but nothing goes into effect.
21 The Appeals Board reviews it, but separates out i
22 ;
the TMI and sends that forward, and the Commission acts on TMI, h
23 ll and if it were positive, then the license would be ef f ective.
I 24 :j Now, I think the modification that you have wJ,versi neconen. inc..l 25 proposed is instead of the Appeals Board separating anything 2226 101
.I
25 1
out, that it go through its normal process?
2 MR. ENGLEHARDT:
Go through the full procese and 3
the Commission would have the opportunity to. determine for 4
itself what it wanted to do.
5 COMMISSIONER AREARNE:
So that if there were a time 6
diff erence, then the process you proposed would be a longer 7
time than the modification I asked Len about?
8 MR. ENGLEHARDT:
No, when you -- are you talking 9
about the process that he has described in his paper?
i 10 COMMISSIONER AHEARNE:
No, I asked him a question l
l 11 about a modified process in which the Licensing Board acts, I
i 12 the Appeal Board then reviews it, is going to end up revi< ewing I
(
13 the whol.e thing, but they take out the TMI side and do that i
I i
14 first and send it to the Commissioner.
I 15 MR. ENGLEHARDT:
The Commission would have the 16 opportunity to review the TMI-related issues at an earlier 17,
point in time, that<a correct.
That is right.
h
- 5 ii COMMISSIONET. AHEARNE:
I see.
- I 1
MR. BICKWIT:
From your standpoint, I think 20 that's preferable to simply suspending the immediate i
21 effectiveness rule.
22 CHAIRMAN HENDRIE:
But does it offer any 23 particular advantage over the base proposition?
24 MD.. SICKWIT:
As I see it, it offers the advantage 1 Fowefal Reporters, Inc. i 25!!
of getting the Acceal Board review on the TMI issues, which j
~~
2226 102 I
l 26 I
will be a stronger review than the Commission as it is 2
presently constituted can provide,.from the Cc= mission 3
standpoint.
4 COMMISSIONER AHEARNE:
I wish you'd look a little 5
to the lef t as well as to the right when you say that.
6 i
(Laughter.]
7 MR. BICKWIT:
Another variant -- I mean these are 8
all variations on themes -- you could adopt this procedure 91 I
as a norm, take a look at the -- when it comes up to you, a 10 recommended or partial initial decision comes up to you, I
11 make a judgment at that point on this one.
You want the 12 license to issue, and you want the Appeal Board consideration
.I 13
(
in the nornal course of events.
i 14 It's just a cuestion of which norm you start from 15 and the branches you go up on, respectively.
16,
bu2 COMMISSIONER AHEARNE:
That's certainly a variety l
17 of options.
13 CHAIRMAN HENDRIE:
Yes.
Almost -- a variety of i:
options, and while I think I can foresee some of the effects c
20 l'j down the line of at least some of the options, I'm not sure 21 that I can see them well enough to make very clear comparisons i
22 l j,
in my mind to help me to see where I think we ought to go.
23 !!
M Peter?
24
3.%.e.i neoorters, inc. ?
COMMISSIONER 3RADFORD:
Considerations of time 25 !
aside, the only disadvantage involving the Appeal S
((waj Q}
.i
27 1
they might be asking you to embark in areas in which you do 2
not have much by way of Commission guidance.
How do you feel 3
about that?
l t
4 MR. ROSENTHAL:
Well, we'd obviously do the best l
t t
5 we could within the confines of the guidance that we have i
1 6
received.
7 I think the point is we are bound --
8 COMMISSIONER BRADFORD:
What I'm after again is 9
it wouldn't be an altogether new experience for you.
i 10 (Laughter.]
II MR.'ROSENTHAL:
I don' t know whether I should 12 comment on that.
13 (Laughter.]
i Id CHAIRMAN HENDRIE:
I'd recommend you don't.
I IS MR. ROSENTHAL:
Let me put it this way:
i I
i 16 l I think we usually are operating in an area where 17 there is guidance.
Sometimes there is disagreement among E' !!
the members of the Appeal Board as to what the guidance is.
.. 'l (Laughter.]
20 j It may be sometimes due to less than total clarity, 1
21 '
but I think -- I think there will be doubtless occasions on i
22 which when the Commission gets its teeth into a case, whether 23 it's without us having been involved or following our involve-24 Y ment, the Commission will reach some new policy determinations
- e-Feueral Reporters, Inc..
2226 104 25 which it wants to be elugged in.
li il
28 1
I tend to think, at the same time, that the grist 2
of the review mill will continue to be a close analysis of 3
the record, the disclosures of record and the determination i
4 as to what f actual conclusions are to be drawn from those l
5 disclosures.
6 In other words, I'm not at all certain that in most 7
of the cases that there is going to be.an upheaval, as it 8
were, when it gets to the Commission level, because of the s
9 determination that the rules on emergency planning as applied 10 to this case should be vastly changed.
11 i I could be wrong about that.
That's pure specula-l I
12 tion.
But in any case, whether or not there is going to be a 13 lot of consideration of policy implications, particularly l
l 14 determinations, there is also necessarily going to be on TMI t
15 '
issues as well as non-TMI issues a good deal of consideration 16 i of the record, the facts.
Just as there always has been in I
17,
the past.
- 5 g COMMISSIONER AHEARNE:
Bob, to what extent are the I!
17 '
Boards waiting for the guidance on TMI-eype issues?
0 20 MR. LAZO:
Well, really, there are very few 21 instances, if any, where the Boards are waiting for guidance 22 l from the Commission.
L 23 Wha +; the Boards are wairing for is the Staff to 24 receive that guidance and policy statement so that the Staff e Fet.,st Rooorters, Inc.
2226 105 25 will be able to proceed to presen: evidence.
h U
!i
29 I
There are several cases stalled, waiting for the 2
Staff to determine how they are to proceed, and it hasn't l
3 been really discussed much today, but there is a question in l
4 my mind as to the difficulty of establishing an all-inclusive 5
list of TMI-related issues and non-TMI-related issues.
6 I'm wondering if that will turn out to be an easy 7
task.
8 COMMISSIONER AHEARNE:
" doubt if any of us i
9 believe it will be an easy task.
I think the question is I
10 w'hether it's a possible task.
Il MR. LAZO:
Well, I guess I would recognize a TMI-12 related issue if I saw one, but -- when I see one.
l
(
13 CHAIBMAN HENDRIE: You can't define it, but you'll l
i 14 know one way or the other.
15 (Laughter.]
l 16 COMMISSIONER AHEARNE:
My own opinion is I think I7 that there is clearly -- there is some issues it would be I3 ll defined clearly.
In other words, some that would be clearly I!
II no, and many, many will be in a mxshy area.
20 MR. LAZO:
Surely, sir, yes.
i 21 MR. BICKWIT:
You could do that case by case, look 22 l at each case as it gets its decision below and then decide l
23 !,
which issues you would like to look at.
li 24 i MR. ROSENTHAL:
The parties would have to know
- .Aerni neconen. ine. l 25 l where to go.
The problem is if the Licensing Board h
2226 106 9
30 1
establishes a decision and three months later the Ccmmission 2
says, "All right, these are the Three Mile Island issues in i
3 this case, and these are the ones that are not," in the meantime, 4
presumably the parties are hung up unless they simply file 5
a paper labeled "To Whom It May Concern."
l 6
[ Laughter.]
7 And then either the Appeal Board or the Commission 8
picks it up.
i 9
MR. BICKWIT:
No, I have in mind a shorter time l
10 period than one in which the Commission would simply decide 11 which issues it wanted to have a look at.
I 12 COMMISSIONER AHEARNE:
Simply and quickly?
i 13 MR. BICKWIT:
S imply, yes.
j I
14 CHAIRMAN HENDRIE:
Well, I must say, I still don' t I
15 l discern here a very clear comparison of the avenues and how i
16 l best to get to the objective which I think we have, which
\\
17 seems to me to be to allow the Commission to make a final
!3b check before any license issuance, that the provisions in
!i I
the case that have been made with regard to Three Mile-related necessary improvements are in the Commission's view adequate d
21 for that case at that time.
, 3 22 i And I would think that our objective in doing 23 d that would be to do it in such a way that we do not disrupt 4
24 J the adjudicative process that is the practice here any more
&Lerai Reoorters, tec, h 25 than absolutely necessary, and also that we not, if we can l
2226 107
31 1
help it, build into the Commission's final check extensive 2
additional times before actions can be taken, again, unless 3
. it becomes clear that those in any given case are necessary.
I 4
And I continue to grope among the propositions l
5l previously made and some newly made here this afternoon to be 6
able to compare those propositions one to another and see how 7
cases in general would proceed under each one, and which one 8
of them offers the closest approximation to what I, at least, 9
perceive to be our objective as I have outlined here.
I 10 I must say I find myself a little uneasy about 11 i plunging ahead and making a decision on one of these corrections 1
12 without a little better understanding of what some of the 13 difficulties are.
14 COMMISSIONER AHEARNE:
What is our pacing item?
15 A Board with a decision pending?
j 16 CHAIRMAN EENDRIE:
In terms of matters that press I
l 17 us to get on with this?
15 l!
COMMISSIONER AHEARNE:
Yes.
0 1:
CHAIRMAN HENDRIE:
Well, I think the fact that 20 there are a number of cases in the adjudicatory process --
21 COMMISSIONER AHEARNE:
No, I understand that.
What 22 I'm really asking, is there a Board that needs a guidance I!
23 ] and what procedure is going to be followed, on parties that 24 [ will be reaching a decision next week, two weeks.
a.% r.: meoonm. inc. <
l 25 MR. CASE:
The Staff needs guidance because it is 2226 108 4
32 1
not proceeding in cases on TMI-related issues until you 2
decide how they should be handled.
3 COMMISSIONER AHEARNE:
I understand that, Ed, but 4
I don't think that's really --
you don't mean this piece of 5
guidance, though, do you?
You mean the Staff needs guidance 6
as to whether or not the Licensing Board issue is going to be 1
7 final?
~
8 CHAIRMAN HENDRIE:
This system is controlled at t
9 the moment, rather tl an coming down f rom the top, as it were, 10 and issuing instructions to Boards, the Commission is controlle,d 11 at the moment by the Staff saying, " Wait, we're not able to 12 go into hearings," and that in turn means that the Board's
(
13 schedule won't go forward.
i Id COMMISSIONER AHEARNE:
I understand that, but I '
l 15 thought a lot of that was guidance.
For example, how ought 16 l they to treat some of the emergency planning problems, or how i
17 l ought they to treat some of those other specifics, rather i
13 than what happens af ter the Licensing Board reaches a decision..
p
.4
'7 CHAIRMAN HENDRIE:
It's a position the Staff is 20 i taking in recogni ition that the Commission is trying to 21 decide what to do here.
That is the Staff doesn't want to l
22 appear to have decided for itself what we should do, and to 23 compel us into action by going ahead into hearings and 24 saying, "All right, we're ready to discuss all the issues and
- e.Fe. rst Reoorters, Inc.
25 to go forward," and so the system is sort of controlled from
[
2226 109
-s
33 1
that side, and the Staff will clearly want to knnw what our 2
directions are here before they are prepared to come 3
forward and appear in hcarings.
4 I've talked to Bob and I've talked to Harold about 5
this situation.
It seemed to me that this was in view of 6
the Commission's clear desire to have a chance to chew on it; 7
on balance the best way to stabilize the situation, to use 8
language of classic --
91 COMMISSIONER AHEARNE:
You're saying once the 1
i Commission makes a decision on these procedural issues, that 10 11 Harold will then be prepared to --
12 CHAIRMAN HENDRIE:
And some of the other things, I i
13 think.
l i
14 Let's ask Harold.
T.2 15 MR. DENTON:
There really are several separate issues.
I need some clearance from you as to whether I go 16 Jl 17 l forward on certain issues along the lines that I have proposed i
- 3 !
to require, and if they are not in the right substantive i~
issues for us to go forward on, then we shouldn' t go forward 20.i at all.
1 21,
And at the moment, we have just demurred on going 22 i fbrward on any.
t 23 k COMMISSIONER AHEARNE:
That was what I thought, il tl 24 "
Harold.
Thank vou.
It's more than just the procedures to 25 f follow once the Board reaches a --
2226 0
.+t.,o amonen. w. '
\\\\
- i h
34 1
MR. BICKWIT:
Excuse me.
Under all these. options 2
procedurally the process goes forward.
I should point that 3
out.
4 COMMISSIONER AHEARNE:
Yes.
I just want to clear 5
that.
6 MR. BICKFIT:
The process at Board level goes for-7 ward.
8 COMMISSIONER AHEARNE:
I wanted to clarify it, but 9
there are other things that were holding the Staff back.
j 10 COMMISSIONER BRADFORD:
If you take the criteria 11 that you outlined, what would be desirable process to come 12 out of it in terms of simplicity?
13 It's almost certainly better to either suspend j
14 D mediate effecti'/eness or go to a liberalized stay rule, 15 simply because that creates the least disturbrance in the i
16 process that everybody is familiar with.
17 In terms of timing, that process can conceivably
- 3 add somewhere between, what, three and five months, depending 9
il if on whose estimate is the most accurate?
1 22 j CHAIRMAN HENDRIE:
I'd guess a shade more than i
21,
that.
'i 22 I COMMISSIONER AEEARNE:
I would think more between i,
23 five months and a year.
24 [
COMMISSIONER BRADFORD:
Compared to one another, I J.c.rai mecomes. inc. d 25 "
mean the process of suspending the effectiveness - -
[
2226 111
.I
35 I
CHAIRMAN HENDRIE:
Yes, I see.
2 COMMISSIONER BRADFORD:
The advantages of having C
the Appeal Board involved are, we think they are both --
i 4
we have some questions as to just how one goes about undoing 5
them as TMI-related issues get resolved and get back into the 6
process, and says, okay, that case is now settled by the 7
other one.
S CHAIRMAN HENDRIE:
Y2s.
9 COMMISSIONER BRADFORD:
It's just that I don't l
10 think those are much harder under suspending immediate effective-ness or a stay rule than they are under the first initial 12 decision.
I I
13 I guess on balance I would at least lean toward j
I 14 suspending immediate effectiveness or whatever equivalent in 15 1 terms of stays one could cxpect.
16 But I think, as I indicated before, I don't see i
I7 l any non-TMI cases in the pipeline, so it really comes lawn
..s
" il to just preserving the Unmediate effectiveness.
Later on that isn't true because you would have 20 reactor cases in which TMI cases had been resolved in earlier q
v cases.
22 CHAIRMAN HENDRIE:
How about this version that Scb 23 suggested, where you remand the u=nediate effectiveness l
rule to provide in effect a Commission review of just the e-Fs..as Reoorters. 'nc.,
25 'L D:madiate effectiveness question?
That is rather than just l
2226 112
36 I
than remove the rule completely, so that the process unde-2 the regulations moves imediately through the Appeals Board.
i 3
and then comes to the Commission, that it indeed goes d
to the Appeals Board, but there may be effectiveness allowed 5
in an initial decision, or there may not, depending on the i
6 circumstances, and we should check specifically on that 7
question, and without necessarily dealing with the merits of 8
what may then come out of this line when the Appeals Board 9'
and Commission make the final review.
l 10 COMMISSIONER'BRADFORD:
In the short run, that l
l wouldn't have as much appeal to me because I think in the
{
II 12 initial cases in the Commission is already committed, at I3 least in the first case, to wanting a look at -- or at least Id the first license, which may not turn out to be the first case.:
l 15 ll I
MR. DENTON:
Could I comment on that situation?
16 It would appear to have some merit in that it I7 would allow you to be surgical in your separation out of the U[
You really want to consider -- suppose, for example, case.
1:
1 :-
there was a heavy water reactor in the middle of the Nevada i,
20 test site.
If you had some way to have your staff take a y
,I look at the way it had moved, and you decide that none of i
22 the things you are thinking about change and would really y
23 4 affect that design or site, you could then make a decision.
24 fi The difficalty with Bob's proposal is how do vou
^
SJecerse Aeoorters. Inc. 'j 25 9 that inf ormation about whether you want to inj ect yourself get 2226 113
37 1
or not.
I guess you could ask OGC or someone to take some 2
initial look at it to see if it contained those elements 3
that you are interested in, but at least it would allow your 4
some discrimination among cases.
5 COMMISSIONER BRADFORD:
I don't think in practice 6
it works out very differently from Gary's suggestion that we 7
use the stay. rules to the same end.
8 I may be wrong about that, but both have that element I
9 of being _M e to be a little more particular.
Thealternativej t
10 would be to suspend immediate effectiveness, but leave open 11 some route by which it could be restated.
12 MR. ROSENTEAL:
There could be a suspension of 13 immediate effectiveness for a prescribed period of time, during:
Id which period the OGC could review the initial decision.
The i
15 '
period could be long enough so it could also factor in any j
i 16 stay applications that might be filed, as well as indeed even 17 briefs that might be filed by appellants attacking the decision, t
M il and within whatever that period might be, the Carmission, with [
t, t
..l the advice of the General Counsel, could determine (1) when:her
'r 20 ;i it wished immediate effectiveness to be withheld for the 21 duration, (2) whether there was some issue or combination of 22 I issues which it wanted to pull out of the entire package, 23 N and decide those itself, having immediate effectiveness then
.I 24 or having the effectiveness rather of Licensing Board decision ceJeoeral Reoorters, Inc ll 25 then hinge upon the outcome of that view.}f jjf fi ii
38 1 And so that at the same time would allow the 2 Commission to get its hand in on 'am informed basis, having 3 at least in the initial decision so much of the record as 4 the General Counsel's Office thought should be looked at and 5 examined and again the briefs. 6 If the Commission, after a look at all of those, 7 were to conclude that there was no reason why the decision 8 should not become immediately effective, obviously subject 9 to the outcome of the full appellate review as it is today, l l 10 then the decision could be given effect. 11 On the other hand, if the Commission decided that 12 it should be held up, either to await the outcome of Appeal 13 Board review followed by Commission look or by the event of l i 14 the Commission's review of some issues it pulled out, then l 6 15 the license would not issue. i 16 MR. BICKWIT: What you do, in essence, is you have i 17 i the discussion we are having here af ter each individual I 13 licensing decision. U COMMISSIONER BRADFORD - The period for three months 20 / just as the Appeal Board review was in full swing and the 4 i 2,1 Commission decided that in fact immediate effectiveness was 22 appropriate in that case, and therefore construction or opera-r 23 - tion could begin, are there any handicaps from your point of 24 view to having the case changed? ..s.o.r i nemn n. inc.1 intheinte{pq}6Ajdhh 25 MR. ROSENTHAL : Not at all,
39 I all, that case would be in the same posture as most of the 2 cases are today, in which there is no stay. There would be no 3-problem. 4 I think the three to four months would be an ample 5 period to allow the General Counsel to take a look at it, and 6 the Commission to think about it, and looking at briefing, 7 the briefing process is probably not complete until around 8 three months af ter the Commission decision issues, allowing 9 times for exceptions, appellant's brief and appellee's brief. 10 i But I would say a three or four month period, i i 11 the Commission could probably get a pretty good handle on 12 whether it is prepared to allow the decision to go forward, 13 in terms of effectiveness. And if not, whether it wishes to I 14 pull the issues out or just l' eave them all in the first 15 level of the Appeal Board. 16 MR. BICKWIT: A threshold decision might be arrived i i at in a much shorter time period, whether to take the three i N or four months. MR. ROSENTHAL: That's right. COMMISSIONER AHEARNE: Len, at some time in the 'l i i past, you remember a discussion about setting up a system l by which I thought OGC would monitor boards? Was that ever examined? 24 J MR. BICKWIT: The issue was --
- e 6.rai Aecorren, Inc. I'l
'N 'S l COMMISSIONER AHEARNE: The Commission doesn't really i k 2226 116 .I
40 I much in the way of current knowledge of what is going on in 2 any of the hearing processes until after a decision is 3 reached. 4 MR. BICKNIT: It would be beneficial to do that, so 5 that we're just that much ahead of the game, but ultimately 6 the decisions are going to have to be.made and won't really 7 be possible until you have a decision. 8 COMMISSIONER AHEARNE: But I had seemed to remember 9 Fitzgerald raising that issue at one point months ago. 10 Do you know whether anything else was looked into on that? II MR. FITZGERALD: I think I deny it. 12 [ Laughter.] 13 MR. OSTRACH: Commissioner, that subject was l 14 raised, I believe, in your interview with Chairman Milhollin 15 of the Inmediate Effectiveness Task Force as one of the l 16 possible recommendations.of theImmediateEffectivenessGroup{. 17 I don't think the General Counsel or Mr. Fitzgerald could be I3 ji charged with being behind that. suggestion, or even being aware II II. of it. !l 20 COMMISSIONER AHEARNE: I wasn't trying to imply
- i 21 l they suggested it.
22 CHAIRMAN HENDRIE: I thought I remembered some 23 ] discussion at a hearing, Congressional hearing, along these
- i 24 I!
lines.
- s Feceral Reoorters, Inc.
25 ] MR. BICKWIT: I don't remember it. Frc= time to k 2226 117 l! ii
41 1 time, in individual proceedings we have talked about whether 2 it would be a good idea to monitor such as the TMI 1 proceeding, 3 I don' t remember that suggestion, but I think that's i 4 a good idea. 3 CHAIRMAN HENDRIE: It does seem to me that some 6 further thought to this matter is in order, and I know some l 7 of the Commissioners would like to mull these alternatives 8 more because we close on a decision, and I am very leary in 9 trying to select formmyself today under these options whether l l 10 to go ahead with it without further thought, I wonder, and I 11 so I propose that we postpone a decision on this matter at 12 this time, and I wonder if it would be possible for some I 13 sitting down, side by side, as it were, of the several l 14 propositions that we talked about this afternoon could be i i 15 l made. Alan's most recent one. And I would hope that you 16 : could think a little bit for each one about the sorts of l 17 l times that are involved, about the sorts of disruptions or I 15,1 difficulties that each might cause, in what I'll call the il If normal adjudicative chain, and also the aspects of each with 20 regard to what I'll call the practicalities of Commissioner 21
- jnvolvement.
I 22 ! And by that, I mean to suggest that I ' abt d 23 our ability hers to beccme, beginning with the most extra-24 : ordinary circumstances, an widence-taking panel. There 9 Isceral Rtoorters, Inc. j 25 simply is not the time, and as I've noted before, I have some 0 2226 118
42 1 concern about the nature -- daout my ability to manage that 2 sort of proceeding here. 3 Now I don't know how far you think you could go 4 with this, but, John, you say you've got seven variations 5 listed? Some of those may turn out to be the same thing 6 by the time we've thought about it, or very near to the same 7 thing, so there may be a small nenber. 8 But it would truly be a help if some thought to the 9 way each of these would work and its pros and cons could be i 10 supplied. II ' I'm sorry that we keep having to iterate and go i '. 2 back and ask fcc more information, but I feel very uneasy 13 picking my way over this uncertain ground. 14 COMMISSIOFER AHEARNE: It's a significant issue. 15 ' It could have very substantial effect. 16 CHAIRMAN HENDRIE:
- really don't feel we are at a 17 decision point this afternoon.
!3 !l Other comments? Peter? John? Il F COMMISSIONER AHEARNE: I agree. 20 CHAIRMAN HENDRIE: Then why don't I allow us to 21 have a four-minute break, and start on the hearing on the l 22 clearance rule croceeding. i l-23 [Whereupon, at 3:25 p.m., the hearing was 24 adjourned.]
- tJf0ff 36 Reporters, Inc. '
25 l i 2226 119 s,
~ 9 UNITED STETES t>" "84 kf NUCl. EAR REGULATORY COMMISSlob y f WASHINGTON. D. C. 20555 diW August 3, 1979 leiORANDUM FOR: Chairman Hendrie Comissioner Gilinsky Comissioner Kennedy Comissioner Bradford Comissioner Ahearne h Leonard Bickwit, Jr., General Counsel FROM:
SUBJECT:
COMMISSION PARTICIPATION IN LICENSE ISSUANCE At the Commission's last meeting on " Deferral of Licenses," Comissioner Ahearne requested OGC to outline a possible temporary modification to the Comission's current procedures to permih increased Comnission participation in power reactor license issuance decisions to ensure that IMI-related safety issues have been adequately considered before licenses are actually issued. We have considered a variety of options in which the Comission would act either in adjudicatory or in non-adjudicatory capa-cities. The criteria we used to analyze these options incinrTaa r (1) the effectiveness of Cocnission participation; (2) the degree of direct delay or disruption such participation would have on. the particular case involved; (3) the potential for future dis-ruption in the case (in later appellate review for example); (4) the workload burden participation would impose on the Comission; and, of course, (5) compliance with the legal requirements of the Atomic Energy Act and the Administrative Procedure Act. If the Commission were to decide that new licenses should be issued only with the approval of the Comission itself, we would reccnn-mend the following course of action for use in any proceedings in ~ which an adjudicatory hearing is required, i.e., contested operat-ing license proceedings and construction permit and limited work authoriration proceedings, whether contested or uncontested. In. the case of an uncontested operating license proceeding, the staff could communicate with the Comission informally prior e issuing any license in lieu of employing the more complex pro- - cedure discussed below. 2226 120 C0!TIACT: Stephen S. Ostrach, GC ~ X-4'3224
n. a u= The C6mmission 2 August 3, 1979 Proposed Procedure 1. Policy Statement 1 % h The f ment.2;. st step would be issuance of a Commission policy state- 'lhe statement would set forth the Conanission's belief that while the accident is still under investigation, the: Com-f mission itself should increase its involvement in licenser issu-ance since it has the ultimate authority within the. agency and since it.. possesses the fullest information on all aspects of the ~ accident. The statement would then list a number of sub.}ect areas (operator training and emergency planning are possible examples) which the Commission had determined were 'DiI-related. ~, Licensing boards would be directed to consider whether to reopen the record in proceedings before them to take additional evidence on those subject areas.4/ 'Ihe boards would decide whether to reopen the records on the basis of their determhtion whether, without reopening, the record was a fully adequate and current basis on which a decision in question could be made. "Ihis is a much more liberal standard than the Appeal Board. would amm7 oy in determining whether to order a record reopened and it is.essen-tially equivalent to the test each board should -Tea can its ~own motion before closing the record on any issue before it 2. Initial and Recommended Decision The policy statement would provide that when a board is prepa=ed to issue its decision in a case before it, it would issue a partial initial decision on all aspects of the proceeding except those which the Cocmission had determined to be 'DfI-relaterd. The board would issue a recommended decision on those latter matters. That partial initial decision would be reviewed by an Appeal Board in the normal fashion with subsequent discretionary zeview by the Cocmission. , 3.' Commission Participation The policy statement would further provide that the recommended decision would go directly to the Commission for its considera-tion, and that' the parties would be given an appropriate time to 1/, Some might consider it more appropriate to co-mm4 cate with the boards by a series of orders in lieu of a policy state-ment. For ease of discussion, this memorandum will asstune that the policy statement approach is preferred. 2_/ As the Commission was told on July 12 by NRE and the Chair-man of the Atomic Safety and Licensing Board Panel, a number of boards have already received motions to reopen based on the 'DfI accident. 2226 121
f'. g g .r w w The Conmission August 3, 1979 brief exceptions to that decision. The Comissicrn would then have four options: (1) it could accept the reco-ded decision and make it final; (2) it could reverse the decision and deny issuance of the licenses (3) it could remand the proceeding to A the licensing board for the taking of further evidencer or (4) it could itself hear further evidence and then decid!e the matter. 4 Discussion / Under this procedure the Cemission would be acting in a fully adjudicatory capacity and thus would be subject ::o the ex narte and separation of functions rules. Furthermore, if the Com-mission did choose to take evidence it would have to employ full adjudicatory procedures including a right to cross-examination (when appropriate) and application of the normal rules of evidence. Since the licensing board would issue only a pard al initial . decision, the i=nediate effectiveness rule would. not. apply at that stage. The license would be issued only if and when the Comission issued the final decision on the HII -=7 ated issues. Judicial review would be available after a Commh= ion decision granting the license or denying it outright, altiscugh in the former case a reviewing court most likely would defer rerview until the Appeal Board decided any appeals taken on non W issues. ~ We believe there is one potential problem with h procedure. The Coc=ission's decision on factual matters wou-'.d have to be based on the record conpiled in the particular proceeding in-volved. This may create some difficulties since the Comission's information on 34I-related issues will be largely derived from such sources as the Lessons Learned task force, =he Special Inquiry, and other investigations none of which will necessarily be "on the record" in each licensing action. This problem can be alleviated in two ways. First, in accordance with the policy statement, the boards can be expected to reopen some of the records to take evidence on tiI-related matters. It'can be expected that the staff will develop and continously update its evidence relating to 'DiI issues which it will t-m or to each proceeding and enter into the record. Furthermore, the Com-sission itself can take any evidence it believes necessary to conplete the record. Second, many of the decisions the Com-nisgion is likely to reach as a result of its consideration of the 'D1I accident can potentially be categoriced as " policy" decisions rather than decisions on factual issues in controversy. The Comission is, of course, free to base its policy decisions on extra-record information. 2226 122 O
4,= m W 43 The Comis'sion 4 August.3, 1979 Conclusion We believe that the procedure outlined above prcsvides a process by which the Comission could, if it chose to, involve its&lf s._ ' directly in consideration of TMI-related matters as they affect the issuance of new reactor licenses. The procedure would limit the distortion of current 1.icensing procedures t:o a =4n4='m and would avoid the legal and practical problems that the Comminsion would encounter if it attempted to employ non-acIjudicatory pro-cedures. The Executive I4 gal Director's Office contributed substantially to this paper and concurs in the dhove discussion. / cc: EDO ELD OPE (2) OCA N SECY (2) e e e e / 2226.123 -}}