ML19296B222
| ML19296B222 | |
| Person / Time | |
|---|---|
| Issue date: | 01/29/1980 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| References | |
| REF-10CFR9.7 SECY-80-020, SECY-80-20, NUDOCS 8002200287 | |
| Download: ML19296B222 (66) | |
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UNITED STATES N UCLE AR REG UL ATORY COMMISSION In the matter of:
DISCUSSION & VOTE ON SECY-80-20 PHILIPPINE EXPORT APPLICATION
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PIace:
Washington, D.C.
Date*
Janucry 29, 1980 Pages:
1 through.64 INTERNATIONAL VERBAT1M REPORTERS, INC.
199 SCUTH CAPITCL STREET S. W. SUITE 107 WASHINGTCN, D. C. 20002
(
202 484-3550 8002200 2Bh
JS:aly Tape 1 W:O.
1 UNITED STATES 2
NUCLEAR REGULATORY COMMISSION 3
- - - - - - - - - - - - - - - - - -x 4
In the Matter of:
5 DISCUSSION & VOTE ON SECY-80-20 6
PHILIPPINE EXPORT APPLICATION 7
- - - - - - - - - - - - - - - - - -x 8
9 10 Room 1130, Eleventh Floor 1717 H Street, N.W.
11 Washington, D.C.
12 Tuesday, January 29, 1980 13 14 The Commission met, pursuant to notice, for 15 presentation of the above-entitled matter, at 9:40 a.m.,
i 16 John F. Ahearne, Chairman of the Commission, presiding.
17 PRESENT:
18 JOHN F. AHEARNE, CHAIRMAN 19 VICTOR GI,LINSKY, COMMISSIONER 13 20 RICHARD KENNEDY, COMMISSIONER i
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21 JOSEPH HENDRIE, COMMISSIONER 3{: $
22 PETER BRADFORD, COMMISSIONER 1
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{ja ALSO PRESENT:
24 ll J. HOYLE jI 25 L.
BICKWIT I
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CHAIRMA'i AHEARNE:
The main topic for this morning l
3 is to hear from the General Counsel and the Director of 4
OPE regarding issues which were raised on the subject of 5
export licenses.
In particular, the responses to an order 6
that the Commissioner issued on October 19th in the matter of 7
Westinghouse Electric Corporation exports to the Philippines, 8
at which time we discussed that we would consider a phase one 9
and a phase two to this particular set of issues.
10 Phase 1 would be focused on the scope of the possible 11 proceedings to help determine the NRC jurisdiction.
Then 12 Phase 2 would be substantive issues raised by the Philippine 13 applications falling within the Commission's jurisdiction 14 assuming that Phase 1 had led the Commission to reach a 15 conclusion as to its jurisdiction.
16 Given that as the opening remarks, which of you i
17 gentlemen are going to --
18 MR. BICKWIT:
Well, I'll start.
In that this was a l
19 joint effort, at the appropriate point I'll turn it over to 33 20
- ops, l
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CHAIRMAN AHEARNE:
I think you may assume that we as.
[jd 22 have read your paper.
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{E N 23 MR. BICKWIT:
Do you always prefer to operate on jaw
- 3' 24 11 that assumption?
- 1 25 2
MR. HENDRIE:
You're speaking for yourself or for f
1 I
3 I
the collegial body?
2 CHAIRMAN AHEARNE:
Well, I guess I was hoping I si A /
could speak for the O dy.
3 4
MR. HENDRIE:
I used to hope that too.
5 MR. BICKWIT:
Let me attempt to set the stage for 6
where we are.
Westinghouse Electric Corporation is seeking 7
authorization to export to the Philippines nuclear reactor 8
and certain reactor components.
9 On April 19th, the Commission received a petition 10 for leave to intervem and requesting a hearing on these 11 applications.
On October 19th, the Commission granted 12 the petition ordered further public proceedings as the 13 Chairman has indicated.
(
14 We now have comments on the jurisdictional questions 15 and at this meeting it is appropriate to address a series of l
16 questions some of which I would have to venture the odds are 17 against the Commission resolving.
18 These questions are first where does the Commission 19 stand from a generic standpoint on the jurisdictional matter?
jy 20 To what extent may or must it consider health, safety and 21 environmental matters?
Subsumed under that question would g
iis a5, 22 be how does it plan to conduct itself with respect to the i!!
$!l 23 Executive order of the President referring to this subject?
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- 3' 24 The second question would be whether the Commission il 5I 25 has enough information to arrive at a decision on the l
4 1
particular export apllications in question without regard to 2
moving forward into an additional phase of the proceeding.
3 The Commission in its order did not premise an 4
additional phase to the proceeding.
It indicated that that 5
was a possibility.
6 The third question would be what is the decision 7
with respect to health, safety and environmental matters 8
if the Commission does believe it has enough information to 9
reach one.
10 The fourth would be should or should not a license 11 issue.
12 Turning to the first set of questions those involving 13 generic matters, we put before the Commission five options 14 for ways to treat this particular problem.
We've specified 15 in the paper that these options are not exclusive.
I would 16 suggest as a jumping off point for discussion that OPE who 17 has put forward a recommended option put it forward here 18 today and Commission can decide whether it's acceptable to it.
19 I should add that our office has not put forward an ji 20 option.
Not because we disagree with the suggestions of OPE, er f
21 but rather because of a lack of confidence within the office s%g 354 22 to fully evaluate those suggestions.
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23 MR. AHEARNE:
But by that did you not mean to then
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24 imply that you believe that OPE's recommendation would be 11 5I 25 inappropriate for us?
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5 1
MR. BICKWIT:
No or appropriate.
We recognize our 2
own inabilities in this.
3 CHAIRMAN AHEARNE:
Right.
I didn't want to take 4
you any farther than you can state the problem.
5 MR. GILINSKY:
Well let's see, do you want to discuss 6
options before we discuss the Commission's responsibilities 7
or what we wanted.
8 CHAIRMAN AHEARNE:
Well, that's what the options are.
9 The options are addressing what are the Commission's 10 responsibilities and --
11 MR. GILINSKY:
It seems to me the options flow from 12 conclusions of the Commission's responsibility.
13 CHAIRMAN AHEARNE:
Well, they more or less in some 14 ways describe what they might do.
15 MR. BICKWIT:
Are you referrinc to the Commission's 16 legal responsibilities?
17 MR. GILINSKY:
Yes.
18 MR. BICKWIT:
We have put forward our views as to 19 what those are.
If you want us to --
TPWN EDY li 20 MR. GILIN3KY:
1" Would you like to briefly summarize 21 them for tho,se of us who may not have had an opportunity quite z!o
!a 22 fully to a s them?
3 I 23 MR. BICKWIT:
Certainly.
We posed three questions
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'fb N M 24 gg abetrt ter su;;critive of the subject matter in the area.
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.i First, does the Commission have the authority in making its i
6 1
Ncas l..,
'phnc _iccily -:pc lled-) determination 2
to evaluate health, safety and environmental effects that 3
would occur in the recipient nation and do not bear on 4
United States interest.
I would add or the " global commons."
5 We concluded that the Commission does not he',e the authority 6
to consider such effects.
7 The second question we put was when you are talking 8
about U.S. interests and the " global commons" may or must 9
the Commission evaluate the health, safety and environmental 10 effects of exported facility upon those interests.
We 11 concluded that the statutes are quite ambiguous on this 12 question and that therefore, it is an open question for the 13 Commission that should be resolved on policy grounds that 14 legally the options are many.
15 The third question we put was--
16 MR. GILINSKY:
Are you saying we could ignore the 17 effect on a " global commons" to?
18 MR. BICKWIT:
I'm saying that.
19 MR. GILINSKY:
If we wanted to, yes.
};
20 MR. BICKWIT:
Yes.
The third question we put was if l f
21 eg the Commission is required to examine the effects described in
!(I 22 questions one and two above, and we determined that they are not
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23 required to or determines that it may do so and our conclusion g<
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is that it may in the ca o of the second question and decides to i
- .I y 25 do so as a matter of policy, are there legal limitations on the i
7 1
nature or scope of the review?
We concluded yes there are such 2
limitations even where U.S. interests and the " global ccamons" 3
are involved.
The sovereignty principle of international law 4
which affects our reading of domestic law is operative and 5
would prohibit extensive sight visits into the recipient country.
6 It would also prohibit extensive questioning of 7
the recipient country when the answers to those questions would 8
be used in the licensing process.
9 Those are our legal conclusions as to the Commission's 10 responsibilities and authorities in 11 MR. BRADFORD:
Okay, I'd take it that puts you at 12 odds with CEO as regards the impact of the National Environmental 13 Policy Act on all this?
14 MR. BICKWIT:
That is correct.
15 MR. KENNEDY:
Could you briefly summarize for us l
l 16 the difference in your views in this regard as to the reach j
17 of NEPA recalling the Commission's several visitations to that 18 question?
19 MR. BICKWIT:
We have a letter from CEQ.
Their 31 20 position as I understand it is that the Commission is obligated we fg 21 to consider affects on the " global commons" and that with i! *. o
!je 22 respect to interests other than the " global commons" and the 13!
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23 United States interests, i.e., interests purely relating to gaW' 24 the recipient country, that the Commission is authorized 5I 25 to take such matters into account.
8 1
We believe they are not authorized with respect to 2
affects other than on U.S. interests and the " global commons".
3 With respect to the " global ccmmons", we believe it is a 4
matter of discretion for the Commission rather than an 5
obligation.
6 MR. S?OIBER:
I would think the central portion of 7
the CEQ letter here is citation of the Section 1022F of the 8
National Environmental Policy Act on page 2 of its letter which 9
states the obligation of all agen::les to recognize the 10 worldwide and long-range character of environmental problems 11 and significantly qualified by where it is consistent with the 12 foreign policy of the United States lend appropriate support 13 to initiatives, resolutions, and programs designed to maximize 14 the international cooperation in anticipating preventing a 15 decline in the quality of makind's world environment.
1 16 I take it that what the Counsel suggests is that l
17 the kind of proceeding we're engaged in now would be in 18 i
furtherance of that injunction in the statute.
19 MR. KENNEDY:
I must say I found some difficulty j;
20 in taking that extremely generalized language which led me to 21 j
think we were talking about international compacts, et
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22 ceteral which I thought indeed was subject of that section 23 tc]
of muer.
!!I 24 jj In translating that into a requirement which would
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be specifically applicable to a particular instance such as I
9 1
the one before us.
I wonder if -you could help me as 2
to how they reach this conclusion -- how they bridge that 3
gap from your reading of the letter.
It didn't come through 4
to me clearly.
My legal training in the international field 5
is limited.
6 MR. BICKWIT:
I must say that our office found the 7
letter to be basically conclusory.
GI/AIRinM aller 20k' 8
M2. ZD'"ESY :A ardon me, to be what?
P 9
MR. BICKWIT:
Basically conclusory.
10 MR. STOIBER:
And not analytical?
11 MR. BICKWIT:
And not analytical.
gggfj Ed.
12 MR. KENNEDY:
RathermyownconclusionMtI'm A
13 always willing to take advice.
(
14 MR. BRADFORD:
What is one to take the Executive 15 Branch position to be?
i 16 CHAIRMAN AHEARNE:
Divided?
17 MR. BRADFORD:
Divided.
18 MR. KENNEDY:
Can one find the Executive Branch?
FR59 Fen 19 MR. S ICr4I-9 :
You're familiar with that.
Not the
/% A. ISIC K. W I D j;
20 Executive Branch but divided positions.
My suggestion was
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21 that --
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22 MR. KENNEDY:
Does anyone -- really, can anyone
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23 answer that question?
Because after all, we have a
- I.
24 11 number of statutes which refer to our relationships either
=2g 25 clearly or obliquely, vis-a-vis the Executive Branch.
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10 1
It would be helpful if we could ascertain what that is.
2 MR. BICKWIT:
What the Executive Branch --
3 MR. KENNEDY:
Yes, who it is who speaks from the 4
Executive Branch on any particular issue.
5 MR. BICKWIT:
Well, under the Nonproliferation Act, 6
the State Department is asked to consult with a number of 1
7 i
agencies -- is required to consult with a number of agencies.
8 This Council on Environmental ality is not one of those 9
agencies.
It seems perfectly appropriate to our office but 10 k
the Council on Environmental j! quality to express its view to 11 this agency is on the matter and as a result you have to draw i
12 the conclusion that different parts of the Executive Branch 13
(
believe differently on this question.
14 MR. KENNEDY:
In this matter since we are essentially 15 dealing with the responsibilities of this agency as they are 16 outlined under the NNPA otherwise the question wouldn't come to i 17 Is it reasonable to assume that the executive Branch here us.
18 is spoken for by the Secretary of State.
19 CEQ, obviously having its own views being as we 11 20 l
always are, we're delighted that they would forward them to 4:
i 21 enl We look for the widest possible range of views.
- But, us.
22
!i,i if we are looking for the views of the Executive Branch since the in f
NNPA tells us who that is, is it fair to say that in this matter 23 p.*
24 the Executive Branch is spoken for by the Secretary of State?
53 25 Is that a reasonable proposition?
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1
11 1
MR. BICKWIT:
I'm more comfortable with a realistic 2
assessment of the situation that the Executive Branch is not 3
a monolith.
Different portions of it have different views, 4
and that is clearly the condition that you're facing.
5 MR. KENNEDY:
I think what I'm trying to say here, 6
if I may, John, or ask really if constitutionally the President 7
in the Executive Branch is responsible for the conduct of 8
foreign policy someone must be speaking for the President 9
since foreign policy is at issue here, that being, the basic 10 thrust of the NNPA.
11 What I'm trying to figure out is someone speaking 12 for the President or do we have a whole lot of people each of 13 who speaks differently but always for the same man.
If so, 14 you know, one has to look at these problems differently.
15 MR. BICEWIT:
I think it is not clear who is 16 speaking for the President.
17 MR. KENNEDY:
Good, all right.
That's an important 18 clarification.
That's been my impression also I might add.
19 CHAIRMAN AREARNE:
Different, but not independent j;
20 question.
Were we to take a final position and attempt in it
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to say the Executive Branch position is or is your conclusion j
22
!!i that we cannot reach a conclusion as to what that position
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1[a 24 MR. BICKWIT:
I would prefer to reach a conclusion 11 "I
25 4
consistent with what I've just said.
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12 1
CHAIRMAN AHEARNE:
All right.
Do you have anymore 2
questions?
3 MR. GILINSKY:
Well, it seems to me that th; 4
questions that we're addressing are not these options which deal 5
with our responsiblities implicitly.
But, to directly 6
address the question of our responsibilities, do we believe 7
that we have responsibilities for health and safety effects of 8
foreign countries affecting only those countries, do we believe 9
we have responsibilities for effects of such countries if they 10 affect U.S. citizens.
Do we believe that we have responsibility 11 for such affects on " global commons" or only on the United 12 States?
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CHAIRMAN AHEARNE:
That is exactly what the options 14 are.
MR. GILINSKY:
Well, it's not phrased quite that 16 precisely.
But, I'm prepared to listen to them.
17 MR. BICKWIT:
I think is essence you've got to 18 resolve the questions that you just mentioned.
The options 19 are designed to facilitate that.
V-20 8
What I've just gone through are the legal options 52{
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you have in deciding those questions.
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n.
MR. GILINSKY:
Where there are a bunch of options 2 3 5gq 23
- E which say we will do a review, we will help the Executive
$5 jj Branch do a review, we'll help a little bit, we won't help at II 25
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all.
But, go ahead.
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13 1
MR. BICKWIT:
If you feel that your responsibilities 2
are inconsistent with the legal parameters we've just given 3
you, you could reach that conclusion then you'd have to seek 4
legislation.
5 CHAIRb!AN AHEARNE:
I think the initial question 6
one would have to reach is do you disagree or do we as a 7
Ccmmission disagree with the legal opinion General Council 8
has reached.
9 MR. GILINSKY:
Well, he has said that some areas 24u1-W 10 are forbidden to consider matters and others areas arc within 4
11 wide discretion.
12 CHAIPJ1AN AHEARNE:
That's right.
To answer the 13
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question would be for example, do we disagree:
a.
That 14 we are forbidden and b.
That we have discussion.
We might l
15 conclude for example, that we disagree it's a discretion i
16 but mandatory.
17 This is our first question, do we agree or disagree 18 with Council's description?
19 MR. HENDRIE:
Count me as agreeing.
I j;
20 MR. KENNEDY:
Oh, count me as agreeing.
I might g
21 geg as a matter of fact note what I said on January 21st.
I have a
22 read your memoranduq,Mr. Counse( of January 16 on the above a 4 i!
$$1 23 subject, that is the Philippine Export License Application.
W55 go.
- 3" 24 It is well written, lucid, and a balance discussion of an 11
- E 25 interrelated series of complex issues.
You are to be 2
l
14 1
congratulated for a first class piece work.
I haven't 2
changed my view.
3 CHAIRMAN AHEARNE:
Vic, do you disagree with his --
4 MR. GILINSKY:
Well, I'm not sure we're forbidden hxh.a-y'kN h 5
to examine matters in foreign countries requc Lwy what we d
6 want to do.
But, even where we have latitude according to 7
General Counsel there remains the question, how do we want 8
to interpret our responsibilities?
What do we want to do?
9 CHAIRMAN AHEARNE:
Well, I understand that.
- But, 10 the first issue I'd like to at least do you disagree with his 11 description about what we are constrained not to do?
12 MR. GILINSKY:
I'm not sure.
But, to the extent 13 that I believe we have latitude, I don't think that's 14 latitude I would exercise in that area anyway.
So, the 15 question for myself is moot.
But, with regard to the areas i
16 where we do have latitude according to the General Counsel, 17 I think we need to consider just how far we wanted to extend M
i 18 our responsibilities our authority.
I think it would be l
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19 helpful to address that directly rather than determining I
$i 20 these options.
But, that's my personal predilection.
I 4 :r 5g 21 lg A *. g don't want to force that on the Commission or change the o
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format of the meeting.
I 22 5
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As I said, either way 1 G.a gu #
3 24 Il I think you're addressing the same thing.
- I 25 MR. GILINSKY:
Well, perhaps.
Maybe I haven't l
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1 done,fr justice and why don't we listen to what he has to say.
2 CHAIRMAN. AHEARNE:
Wait, let me first find out.
3 General Counsel has established a set cf legal opinions.
We 4
have one lawyer amongst us on the Commission.
I think we ought 5
to at least hear whether he agrees or disagrees with that.
6 MR. BRADFORD:
Well, I agree insofar as is essential 7
to move the discussion along this morning, that is, I agree 8
that we are not legally required to consider environmental 9
impacts in a situation in which there is no " global commons" 10 or common defense and security or public health and safety 11 of U.S. citizens involved.
12 As an abstract proposition, if you confronted the 13 Commission with the situation in which there was some reason-(
14 able showing that the export in fact was dangerous, but 15 dangerous only to both public health and safety of the recipien:
16 country, I'm not sure that I agree that the Commission,has no i
17 power whatsoever to inquire into that of its own Vicl2tions j
i 18 I do agree that we would not be legally required 19 to.
31 20 None of that helps very much, as Victor has pointed 6x 5g 21 jj out, with resolving what to do about a situation in which f *. g o
[ja 22 there clearly are both common defense and security, public it!
5dj 23 health and safety of U.S. citizens, and " global commons" 5:=s 24 consideration.
So that's really what we have to do.
If "I
25 CHAIRMAN AHEARNE:
Well, I didn't think it did.
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That's why I was trying to get directed to het option.
- But, 2
there seemed to be an interest in first going back over 3
that legal fr9ework so we did it.
Cc/
4 Wett, why don't you at least describe what your 5
option has been and then lets see whether Commissioner 6
Gilinsky's point can be explored.
7 MR. HENDRIE:
Did you express an opinion on the 8
question, John?
9 CHAIRMAN AHEARNE:
I agree with the General Counsel.
10 MR. HENDRIE:
Oh, oh, I didn't hear.
11 MR. HANRAHAN:
First, we should note that the 12 options are not all inclusive.
That there really is a 13 spectrum and these are just points across the spectrum and 14 therefore, one can land somewhere along their policy position.
15 In our understanding of the General ' Counsel's i
16 position, it seemed to us that a broad analysis assessment 17 by the NRC was not being required and perhaps had some legal I
18 diffi'ulties.
On the other extreme, only the most narrow 19 reading of that would require no action.
On that basis, we jg 20 felt that as a policy matter where there is U.S.
- interest, ee f
21 either on military or on an institutionalized long-term eg 354 22 presence of U.S. citizens that the Commission should then i$i
}!j 23 give consideratica to that health and safety in a limited l$*
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il manner, not in a manner that is usually done for domestic 2
- E 25 reactors because there is no capability of carrying out J
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such a complete design reviewA uring construction and d
2 operation.
So that any attempt along those lines would be 3
a failure.
4 MR. KENNEDY:
Not only that.
Are they not 3
precisely the kinds of things which Counsel so well describes 6
as being proscribed and cannot do those things in light of the 7
sovereignty rule?
8 MR. HANRAHAN:
Even aside that, we would be unable 9
to carry out that function physically.
Therefore, as --
10 MR. KENNEDY:
It is well to note that in such a 11 case we are able then to fall back on the international 12 law rule.
We don't have to admit our infirmities.
13 MR. HANRAHAN:
So, our option where there is some --
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14 the Executive Branch assessment proves to be unsatisfactory 15 for whatever reason and/or where there is some U.S. presence 16 in military or large populations that, then a limited health and safety review would be g yps h
dwevr' 17 a
18 CHAIRMAN AHEARNE:
Why would we do that?
19 MR. HANRAHAN:
Because of U.S.
interests there, of j;
20 being a U.S. citizens or U.S. military installations.
I i 21 jg CHAIRMAN AHEARNE:
Now, you're saying even were we i
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22 to conclude that this review by the, whoever they are, 23I 23 Executive BrTnch is adequate, you would still want to do a jst 24 il further exploration?
I 25 MR. HANRAHAN:
I think we would want to extend that, I
18 1
review the available information to satisfy ourselves that 2
it represented --
3 CHAIRMAN AHEARNE:
Would you have in your proposal 4
a threshold that when we find that there is extensive U.S.
5 interests involved, U.S. citizens f r example, that is the 6
stage that we ald do a review of all of the available 7
information?
8 MR. HANRAHAN:
That's right.
Now, I think we should 9
note that that is likely to be a very rare instance what we 10 perceive in the future cases where that would be an exception 11 rather than the rule.
12 CHAIRMAN AHEARNE:
When you say a review, did you 13 have in mind a review of turning all of the regulatory staff 14 onto the effort or did you have in mind OPE reviewing it?
15 MR. HANRAHAN:
Not all of the regulatory staff are 16 limited to review 17 18 19 l
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along the lines -- they are for the Philippine case, which 2
I hoped to have been done by OPE, but that doesn't necessarily 3
mean that it would be continued to be done by that Office but 4
could be done by some elements of the Staff.
5 CHAIRMAN AHEARNE:
But, your threshold is, in this i
6 case, is where there are clearly identified American cit-7 izens or there are cleerly identified American interests.
8 MR. HANRAHAN:
Yes.
9 MR. GILINSKY:
And, we would be doing this at the 10 request of the Executive Branch or we would be checking up on 11 them or what?
12 MR. HANRAHAN:
We would be doing it to fulfill the 13 NRC obligations under the NEPA as a matter of policy.
It's 14 not obvious that it's required; I think it's in the area of 15 what the General Counsel describes.
16 MR. GILINSKY:
Would we then be interpreting the 17 law as making us responsible.for effects on Americans abroad 18 of exports?
19 MR. HANRAHAN:
Yes, I guess you would be; that j;
20 would be since that's your threshold of action, that would l
I 21 have to be --
g e o 22 MR. BICKWIT:
You would be interpreting the law as
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!>dj 23 permitting and then you would decide as a matter of dis-l!!
- 3" 24 cretion to exercise that.
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MR. KENNEDY:
But, you would not be interpreting the I i
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20 1
law as requiring that.
2 MR. BICIGiIT:
That's right..
3 MR. HANRAHAN: It would be the Atomic Energy Act, I 4
think.
The Common Defense Systems --
5 MR. GILINSKY:
And, what, you would do this on a 6
case-by-case basis?
7 MR. HANRAHAN:
That's correct.
8 MR. GILINSKY:
So, you would leave open the possi-9 bility of doing a review?
10 MR. HANRAHAN:
That's right.
There would be -- most 11 of the instances, at least that we would suspect you would 12 do, there would be no review done other than the Executive 13 Department's Environmental Impact Review says.
14 CHAIRMAN AHEARNE:
But, you would not have a very 1
15 clear standard either of when you wo nc~. do it, nor what would 16 be the required amount of information in order to reach a 17 satisfactory decision?
18 MR. HANRAHAN:
I think it would be almost impossible 19 to set a clear standard on '* hat constitutes a clear Amrican pres-j3 20 ence.
It's somewhat obvious, perhaps, in the Philippine
{E3 21 case, but it may not be quite so obvious in another case.
11 ew a54 22 MR. GILINSKY:
But, is your standard that the ili
}!j 23 original review is not satisfactory or would you have a
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- I" 24 discretionary even then?
11 l
I 25 MR. HANRAHAN:
Discretionary -- well, if it is un-
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21 1
satisfactory, then, I think it would require some.
2 MR. GILINSKY:
Well, in that case, we really would 3
be setting up a standard and saying that we really are re-4 sponsible for these matters.
We won't have to do it if the 5
Executive Branch had done an adequate job and in the view of same-6 one here hadn't, then the NRC would.
7 Then, it seems to me you would not be dealing with it 8
on.a2 case-by-case basis, but you would, at this point, be say-9 ing, Yes, indeed, we have chosen to consider ourselves re-10 sponsible for these environmental ef fects.
11 MR. HANRAHAN:
I think that that would require some 12 pretty serious deficiencies in the Executive Branch evaluation.
13 MR. GILINSKY:
I'm not trying to argue with your 14 position here.
I'm just trying to understand.
15 MR. STOIBER:
Of course, the Commission would issue 16 a decision or a formal opinion, I take it, setting forth some 17 standards for when it thought a sufficient United States 18 interest had been shown to begin review of whether or not it 19 would inquire into these subjects.
So, you would have some jg 20 standards for permanent presence of a large number of U.S.
et f
21 citizens, perhaps engaged in some activity related to the 2 ". g e
356 22 national security or the opinion could be framed in that way II$
}!j 23 so that you weren't overly lost in terms of when you might t5a.
go
- 3" 24 conduct that sort of a review.
il 5I 25 You might also set out set out in the opinion what I
i
22 y
the nature of the review you contemplated would be if you decided that a sufficient interest was shown and that you 2
3 wanted as a matter of policy to conduct it.
MR. GILINSKY:
So, you would be at this point, 4
5 asserting NRC jurisdiction over these e.atters?
MR. STOIBER:
Yes, or intent to exercise that 6
7 jurisdiction if the proper case arose.
MR. GILINSKY:
The intent to exercise that juris-8 diction, yes.
9 MR. STOIBER:
If the proper case came up.
10 CHAIRMAN ADHEARNE:
That fits into the discretionary yy area.
12 MR. GILINSKY:
Well, it's discretionary whether or 13 14 exercise that jurisdiction, but once having exercised ntt it, eless you want to reverse your policy at some later 15 p int, y u will then be bound by that approach.
16 MR. HANRAHAN:
That is within the criteria--
17 CHAIRMAN AHEARNE:
I doubt that crite.ria would ever 18 19 be well enough defined that you could automatically conclude y u w uld or would not.
];
20 se MR. GILINSKY:
No, but someone could come here and 21 11 22 argue whether you have met your standard or not and so on.
23 CHAIRMAN AHEARNE:
Yes, that's right.
ai jji MR. HANARHAN:
But, I don't think that you could 24 iI jI 25 set a standard in terms of how large a military installation or how many permenant U.S. citizens--how close or how far.
I
23 1
CSAIINAN NEARNE: Yourproposaldcesn'texte.rxi,hcwever,todevelop-l
/
2 im information other than what is a'nihble.
3 MR. FR EAHAN: ht's correct.
4 CHAIR 9R NEAIRE: So that you still fell, generally as Ian has point-5 ed out, we are bound by the requL e. that we can't explore into the 6
sovereignty of the country. We can't go in and irsist en site reviews and 7
a series of questions -
8 MR. SIOIBER: Withcut the request or concu.e. of the recipient 9
government.
10 CHAIINAN MEARNE: Yes.
11 But, did you ever address the question of whether or not we could 12 deny the 2.icense in the absence of that? One questien is, do we insist 13 on getting that; another question is, no, you can't irsist on gettig it, 14 but ycu can say that unless we get it, we won't give the license.
j 15 MR. fHemIT: I would assume that if you're assertig exercising 16 your authority in this area and asserting jurisdiction, you certaidy 17 can; that's what you would be sayiq.
18 MR. IhW: Is that so clear to Counsel?
19 MR. BICFWIT: No, I don't think it is.
j; 20 MR. IGMEDY: Nor do I.
DO llg 21 MR. C12C I think if you assert that unless you get it you're eta
!ja 22 goim to have to deny a license in certain cases, then you're in con-ai s>!l 23 flict with our opi icn.
- 5a i!i 24 CHAIINAN AF2.ARNE:
So, that really is another way of
- 1 i
53 25 l'
i i
I i
24 1
saying you insist that you have to deny it.
2 MR. GILINSKY:
Well, I didn't say you have to deny 3
the license, but you certainly are saying that you may deny 4
the license on that basis.
5 MR. KENNEDY:
Not because you didn't get the material.
6 CHAIRMAN AHEARNE:
Len is saying that it is in-7 consistent with the law.
8 MR. DEVINE:
If there were large military instal-9 lation near by, if there are real problems with the site, 10 whatever, and you don't get the information, theoretically 11 you could fail to have enough information in which to make a 12 finding.
13 MR. GILINSKY:
I mean, these are matters that you're 14 saying you're taking into account in your decision in granting 15 an export license.
And, so I cannot see how they can be ex-16 cluded from influencing that license.
17 CHAIRMAN AHEARNE:
That's what I'm trying to find 18 out, because my understanding and my opinion is that you can't 19 do that.
33 20 MR. BICKWIT:
You cannot say that as a condition to se Si 21 g
granting the license, you're going to have to go in and have z ". g gja 22 site visits.
15!
>$l 23 As Jim points out as a practical matter, you may tla 3
24 11 get into a situation where you're going to deny the license "I
25 on the basis of what you have.
At that point, that could be l
2 l
l l
l
25 1
transmitted to the recipient, if the recipient said, in that 2
case, ccme on in, then, of course, you could.
3 CHAIRMAN AHEARNE:
But, could you then say that we're 4
going to deny the license not on what we have, but on what 5
we haven't?
6 In other words, the information we have available is i 7
insufficient --
8 MR. BICKWIT:
I think in a particular case, you could 9
say that, yes.
10 MR. GILINSKY:
Well, that's what I had in mind.
11 MR. BICKWIT:
I see.
I thought you were talking 12 about a generic situation where you would say, as a generic 13 matter, unless we can go into the country and say and have 14 site visits, our policy is that we're not going to grant any 15 licenses.
That would run afoul of our behavior.
I t
i 16 CHAIRMAN AHEARNE:
But, you could say, in a particular 17 case --
18 MR. BICKWIT:
In a particular case, you could say, l
19 We haven't got enough information at this stage and in this I
j; 20 particular situation, we're going to have to deny the license I
at on the basis of what information we have.
At that point, the 21 1*I jhj 22 recipient government might well speak up and say, Come on in.
i$i
}dj 23 MR. KENNEDY:
Excuse me, is that because we did not E l 3.
24 have enough information or because the information that we have ilJI 25 did not allow us to proceed?
26 1
MR. BICKWIT:
I don't -- one seems to be a sub-set
/
2 of the other.
3 MR. KENNEDY:
I don't think so, necessarily.
If one 4
says there is a negative -- if the information you have gives 5
you a negative presumption, it is one thing; if it simply 6
doesn't allow you to reach a presumption, it is quite another.
7 Now, is not being able to reach a clear, positive 8
prestmption, grounds unquestionably for denial of a license?
9 MR. STOIBER:
Keep in mind that under a Nonprolifer-10 ation Act, the alternative is not necessarily denial of the 11 license, but referral of it to the President.
12 MR. KENNEDY:
Precisely.
That's the point I was 13 coming to.
Quite a different thing from denial of the license.
14 MR. STOIBER:
Since the Executive Branch would have 15 already recommended issuance of the license, I think the prac,
16 tical effect is clear.
17 MR. KENNEDY:
Right.
is I would suggest two thoughts:
the record of our 19 efforts in the export licensing field on a coercive level j;
20 have been notable for their lack of success, es EI And, secondly, that fact that our inability to reach 21 j.1 1
~
I!j i
22 a conclusion leaves the matter in the hands of the President, i
}!j 23 whose business it is to make decisions of this kind in the
- Si
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24 first instance, since it was that for which he was elected; 11 II it makes eminent sense and the Congress was wise in reaching
,5 I
27 1
that conclusion.
2 CHAIRMAN AHEARNE:
Well, gentlemen, do any of you 3
have any thoughts on what you perceive our responsibilities to 4
be?
5 MR. BRADFORD:
Can I probe one other area in regard 6
to this option?
l i
7 Where does all of this leave you with regard to the 8
" global commons" as an area for concern or is that criteria for 9
decision making?
I gather your -- under your preferred option, 10 the NRC's interests would be triggered almost exclusively by 11 a U.S.
presence.
Have you read the " global commons" out of 12 the --
13 MR. HANRAHAN:
The Executive Branch's assessment 14 should take into account the " global commons" and that would 15 be if they fail to do so --
D l
16 MR. GILINSKY:
This is the ER/A statement?
17 MR. DEVINE:
No, this is the assessment that they 18 have prepared pursuant to the Executive Order, the President's 19 Executive Order of last year.
3i 20 MR. GILINSKY:
I see, for each --
4:
21 MR. DEVINE:
For each reactor export.
g i*a I34 22 MR. HANRAHAN:
If that assessment failed on these i
IIl
}!j 23 grounds, then it should be taken up in that assessment.
l58
- 3 "
24 MR. BRADFORD:
Regardless of whether or not there il 2 3 25 was a direct U.S. presence.
J
28 1
MR. HANRAHAN:
I believe so.
2 MR. GILINSKY:
That would be also something that the 3
NRC would review under your approach.
4 MR. HANRAHAN:
And participate in.
5 CHAIRMAN AHEARNE:
That's " global commons".
6 MR. HANRAHAN:
Yes.
7 MR. GILINSKY:
You just took that for granted in 8
presenting that in a further case of U.S. presence in a 9
foreign country.
10 CHAIRMAN AHEARNE:
That's particularly focused on 11 the crossing the border -- any other exploratory questions?
12 MR. BRADFORD:
Is the process of referral to the 13 President the same under all aspects of the denial under the 14 N WA, that is whether it is proliferation related, having to 15 do with the five criteria or a nonenum M uy finding?
l 16 MR. STOIBER:
It's the same, yes.
i 17 CHAIRMAN AHEARNE:
Does anyone have any more thought is on it?
19 MR. GILINSKY:
Is that the extent of the presentation j;
20 of this option?
You don't present any sort of analysis?
l wr MR. HANRAHAN:
What you can do is -- and the dif-21 1*1
.jhj 22 ference would be to do more in the review --
I$i
$dj 23 CHAIRMAN AHEARNE:
The paper has two options on 15a
!!I 24 either side, wouldn't. you say?
11 jI 25 MR. HANRAHAN:
You can do more of that health and j
l l
29 1
safety review, but it would be my opinion that there again, 2
you're dealing in the matter of degree, and you're not really 3
generating any more certitude that the health and safety or 4
common defense security are being protected or damaged.
5 The other side is to do less, or really, to do 6
none.
l t
7 MR. GILINSKY:
Did you consider options which did 8
not have the Commision asserting jurisdiction over --
9 MR. HANRAHAN:
Yes, I think Option 1 already says 10 essentially to do nothing --
11 MR. GILINSKY:
That would just be doing nothing 12 except on " global commons"?
13 MR. HANRAHAN:
Yes.
14 MR. STOIBER:
And certain options are --
15 MR. BICKWIT:
You can do nothing except on the i
16
" global commons" or you can do nothing.
17 MR. GILINSKY: I'm trying to understand, this has re-18 viewing effects on the " global commons", is that correct?
19 MR. BICKNIT:
All right; I believe it does, but j;
20 that's not to say that you don't have the option of ruling l
f!
l lg 21 that out also.
From a legal standpoint, we believe you do.
A to N EPA zSo 22 MR. BRADFORD:
Regardless of F444(, we can com-lig
}!l 23 pletely ignore effects on the " global ccmmons"?
24 MR. BICKWIT:
Yes.
If those effects -- I'm not lI NIEPA M
25 J
saying that -M PA doesn't talk about the " global commons" and j
l l
l
30 I
that sometimes you have to take the " global commons" into 2
account, I'm saying if a reactor is located in a foreign UGA 3
country and you are not required, under N-?A, to look at 4
the effects on the " global commons" emanating from that reactor 5
out to the " global commons" -- that's a difference between 6
us and the CEQ.
7 MR. BRADFORD:
Draw those borders for me once more.
3 MR. BICKWIT:
We would treat " global commons" the 9
same way we would treat U.S.
interests; as the Commission 10 having no greater or lesser obligation, we have said, with 11 respect to U.S.
interests, that the Commission is permitted, 12 but not required to consider effects on U.S.
interests.
We 13 would say the same with respect to effecwon. the l! global-ctnnons" 14 which emanate from a reactor in a foreign country.
15 CHAIRMAN AHEARNE:
But, that's once the reactor's 16 there.
You don't reach the same conclusion as far as during 17 transport.
is MR. BICKWIT:
That's right.
19 MR. GILINSKY:
Let me ask you onc Lias:
This case j;
20 is different than most other export cases in that the re-l e!
i El actor is entirely or almost entirely an American product.
21 j y.1 1.*j 22 Often one finds that the United States is exporting hardware ISI
$dj 23 for the internals of the reactor or whatever.
tc
!!a How would you treat those cases?
I 24 11 jI 25 MR. HANRAHAN:
In the same situation of military I
I I
I
31 1
presence or where there is some U.S.
interest?
2 MR. GILINSKY:
Yes.
3 MR. HANRAHAN:
I think there you would deal with 4
specific issues that related or were raised through the 5
Executive Department assessment or through other routes that 6
related to either site because of sizemol g2 r --
7 MR. GILINSKY:
Typically, an export application 8
will say, 42 million dollars worth of hardware in the follow-9 ing catagories, you know, one through nine; what would you 10 do with that?
11 MR. HANRAHAN:
Deal with only those issues that 12 raise some particular matter.
13 CHAIRMAN AHEARNE:
Are you saying that you would 14 look at the operation of the reactor into which those pieces 15 might go?
16 MR. HANRAHAN:
- Yes, t
17 CHAIRMAN AHEARNE:
So, that you're saying that 18 you would treat it similiarly as if we were exporting the 19 whole reactor?
j; 20 MR. HANRAHAN:
Yes.
I don't think you gain anything by g:
i 21 g
looking at simply the effect of those particular parts.
It's e ". g sig 22 really the whole that is important.
358 f d ~[
23 MR. GILINSKY:
That's what I was trying to get 5:<
- 3" 24 at, how this would be carried out.
11 I
25 MR. KENNEDY:
Does that, then, imply a safety re-J l
l
32s 1
view of the componentry being produced by someone else?
2 MR. HANRAHAN:
No, sir.
t 3
MR. KENNEDY:
And how does one go about doing that?
l 4
MR. GILINSKY:
Actually, I wonder if we could ask, 5
before we get to the NRC approach, what would the Executive 6
Branch do in that case?
Is there anyone who could --
7 CHAIRMAN AHEARNE:
You mean the Stato Depar*aent?
g MR. GILINSKY:
The State Department -- can you 9
illucidate us on that?
10 MR. BETTAUER:
Can you repeat the question?
11 MR. GILINSKY:
Well, suppose a U.S.
export doesn't 12 involve the whole reactor, but just some part of it.
How 13 would you handle the environmental review or the assessment 14 that needs to be performed?
15 MR. BETTAUER:
In our procedures, we define --
f 16 CHAIRMAN AHEARNE:
Could you identify yourself, 17 please?
18 MR. BETTAUER:
Yes, I'm Rod Bettauer, the assistant 8
l 19 legal advisor for the Nuclear Aff airs of the State Department.
];
20 The Executive Order deals with export of production utilizatio 4
21 facilities or waste management facilities.
1*1 jfj 22 We crafted and unified procedures to implement
!!i
$!j 23 that Executive Order and taken into account, also, that you 45s
!!I 24 have to have a physical project and so on.
In that, we took il ji 25 as a point of departure the definition for export purposes I
l
33 i
1 of utilization facility and then look at which of those are 2
significantly excluding the very lower range and put that 3
into the definitions in our procedure.
Then, you would find 4
in the procedure's definitions of physical project means 5
any nuclear reactor capable of producing more than 15 thermal-6 megawatts, any nuclear steam supply system for such a reactor, 7
any production facility as defined in Section 50.2A of the 8
CFR, which are your regulations, so that's what triggers --
9 MR. GILINSKY:
So, what you're saying is once the 10 amount of hardware that is exported crosses the threshold 11 of the NRC definition of the production of a utilization 12 facility, your procedures are then also triggered.
13 MR. BATTAUER:
Yes.
14 MR. HENDRIE:
But, they wouldn't be triggered by 15 components?
16 MR. BATTAUER:
No.
17 MR. EENDRIE:
Suppose, an unlikely case, that we 18 were to sell a reactor vessel to be used on a German manu-19 factured reactor located in, I don't know, someplace; that j:
20 wouldn't trigger?
!e!
MR. BATTAUER:
Well, you have defined, for export e
21
".1 1.-
i$
22 purposes, the series of components in Part 110, four major I$i
$dj 23 kinds of components as being a reactor.
And, if that is 15:
lllI 24 a utilization, it's going into a reactor capable of producing l
ji 25 more than 15 thermalmegawatts, it would trigger our procedures.
i
34 1
MR. HENDRIE:
So, a reactor vessel would, in fact, 2
trigger this and so would a series of considerably lesser 3
components, specifically identified to be a reactor specific, 4
so we get the full grill on all manner of components.
I 5
guess if I were a supplier in the commercial market of com-6 ponents of that type, why then I would fire my foreign sales 7
staff.
8 MR. BETTAUER:
I wouldn't say all manner of com-9 ponents; the components that you have defined in your regula-10 tions as being a utilization facility.
Once there are a 11 limited number, those aren't all the components under your 12 licensing jurisdiction.
They are not the Section 109 com-13 ponents -- Section 109 deals with the components that were 14 formally licensed by the Department of Commerce which were 15 pulled over to you.
On the other hand, there are utilization 16 components, certain key components that you have considered 17 essentially the same thing as a reactor.
And those are set 18 out in your regulation; I see Carl's looking for it.
19 MR. STOIBER:
I've got it; it's Appendix A of jg 20 Part 110.
we El 21 MR. HENDRIE:
Do you want to shoot it down, I'd gg eto
[ja 22 love to read it while we go on to other subjects.
3Ej
}d[
23 MR. BETTAUER:
No, it's actually definition SS;
- 51 1:::1 24 you want 10CFR110.2 Definition SS of utilization Facilities.
I$
"I 25 The Appendix has all the components; SS has pressure vessel, J
i I
l
35 1
primary coolant pumps, fuel charging and discharging machines, 2
and control rods.
Those are the only components that you 3
have defined as the equivalent of a reactor and if that goes 4
and it is for a reactor capable of producing more than 15 5
thermalmegawatts, it falls under our definition and our pro-6 cedures as a physical project.
7 MR. HENDRIE:
Very good, thank you.
8 CHAIRMAN AHEARNE:
Anyone else have any othcr thought's, 9
suggestions?
10 MR. BRADFORD:
What about attaching conditions 11 under what I take it as the OPE preferred option?
- Suppose, 12 for example, the Commission were dissatisfied with emergency 13 plutning as a way of protecting the U.S.
citizens whose 14 presence near the reactor had triggered the concern in the 15 first place.
Are its only choices to approve or deny the 16 export or as a practical matter, is there a way to condition i
17 it on the preparation of a plan that would work?
18 MR. STOIBER:
We considered license conditions 19 in the export context about three years ago and found that l
.i ;
20 there were a very sticky-wicket -- the problem is, unlike i=i I'
21 j,
the domestic licensing process where you have continuing i '. g a
3je 22 legal respcnsibilty over the construction and operation of 14
$![
23 a facility, in the export context, once you have shipped l55 24 the equipment, then it's beyond the territorial jurisdiction 11
- .I :-
25 of the United States, how, in effect, do you control the l
l 1
36 1
actions of the foreign government?
2 Th.refore, we felt, that license conditions in 3
export matters were rather meaningless because of the en-4 forcement problem.
You could attach a condition, but what 5
I would suspect that it would add up to is nothing more than 6
a kind of an injunct. ion or hortatory admonition to the foreign 7
government to do the right thing.
8 CHAIRMAN AHEARNE:
I found that the one probica 9
that I had with OPE's approach was the statement that the 10 scope of thoroughness proves unsatisfactory, which implied 11 to me that we were going to have to be able to develop some 12 set of criteria which would say these criteria must be met 13 and I really doubt if you could ever do that.
14 I thought as a practical matter what it would 15 end up being if the Commission wishes to conduct a limited 16 independent review on its own,dt would.
It was what I felt 17 would really end up being.
18 MR. GILINSKY:
Well, then you don't want to assert 19 jurisdiction?
j; 20 CHAIRMAN AHEARNE:
No, in other words, Ed's option en El is that we have jurisdiction in those areas where there is 21 II
-4ly$
22 a significant potential impact on either, as he says, military i!!
}!~
23 installations or sizable numbers of U.S. citizens residing
- Sh go<
24 in the proximity of the site.
And, then he went on to say il 53 25,
therefore, we ought to review the assessment provided by the i
e i
37 1
Executive 3 ranch in addition to participating in its develop-ment.
And then go on and do an independent review and as 2
3 I read the backup of what he is saying, using all available 4
information, rather than going out and getting it.
5 But, the criteria that he proposes is if the scope 6
of thoroughness proves unsatisfactory, and I believe that 7
what really that would end up meaning is that if the Commission 8
chose to do so, because I didn't think that we could set up 9
a set of explicit criteria which would say, Here's what must be there.
And if this isn't met, then it's unsatisfactory; 10 11 so, I thought the phrase unsatisfactory was another way of 12 saying if the Commission chooses to do so.
MR. HANRAHAN:
It's dropped in as a euphemism for 13 14 that purpose.
Obviously, it exists, but in t he real sense 15 that will always exist if there is some aggregiously poor 16 statement from the Executive Branch.
And, I guess you would 17 have to --
MR. GILINSKY:
But, in proposing this option, you're 18 l
19 undertaking a responsibility and it is part of daat responsi-i jg 20 bility is to insure that there's adequate information for 4:
El you to decide whether or not *'.e impact on U.S.
citizens will 21 j g.1 1*
- j 22 be more than they should 'a.
ils jgg 23 CHAIRMAN AHEARNE:
Or you're at least taking upon i5a lj3 yourself the responsibility, if a view from the Commission 24 il jI 25 is available.
I don't go as far
.s saying that we either --
I l
l
38 1
that its either no jurisdiction or complete review.
By com-2 plete review, requiring the same level of detailed informa-3 tion that you would require for it to be sited in the United States.
4 5
MR. GILINSKY:
Well, I thought that was discarded 6
in moving to Ed's Option 3.
But, there remains the question 7
are you accepting -- you know, are you proposing that the I
8 Commission accept the responsibility in this area, in which 9
case, if the document is deficient, you will have to review it and correct it.
10 11 CHAIN AHEAME:
You would have to review it 12 based on all of the avalla ic information.
MR. GILINSKY Well, you seem to say that we will 13 14 just ec what we want to do in each case, I mean, that doesn't i
l 15 sound like a policy.
16 CHAIBMAN AHIARNE:
No, I'm saying that I do believe 17 that we'd have the responaibility for the -- when you have a 18 sizable number of Ame'rican citizens likely to be effected, l
19 I think that if I rea.1 Len correctly, we have the discretion 1
to extend that far ard I feel that we have a responsibility j;
20 4:
E1 to extend that far.
21 I*I j{$
22 MR. GILINSKY:
All right, isi dfj 23 CHAIRMAN AHEARNE:
The next question is when, in 15a
!ji 24 exercising that jurisdiction, what information is required i!
to be obtained?
My point is that I think we are required 3I 25,
i I
l
39 1
we ought to obtain all the information that is available.
2 That does not lead me to conclude that we ought to require 3
the same amount of information that is required for a domestic 4
site.
5 MR. GILINSKY:
Well, I just took that as a given 6
in listening to the OPE presentation.
7 CHAIRMAN AHEARNE:
Let me point out that what I'm 8
saying:
what I'm saying is that that means that if for one 9
of these reactors, we find that we don't have detail site 10 characteristics, domestically we would require that kind of 11 investigation to develop it.
I'm saying I don't believe that 12 in this export area, in the absence of it, we ought to say, 13 mil, we can't license the reactor because we don't have it.
14 If we were to go that far, we would be saying that we do 15 require the exact same level of information and I don't think 16 we should.
17 MR. GII.INSKY :
I don't think the exact same level of 18 information is an issue here; the question is whatever level 19 you consider --
31 20 MR. HANRAHAN:
The question -- what you're relying 4 :e 53 21 j,g on is available information and if something is not there, E*a
!je 22 that does not necessarily have a negative impact and we should
- i; (
23 then go look for that information.
And based on that informa-l' 24 tion, we will not set up some standard which says, this is
.! I 25 the quality and quanity of information that must be provided I
40 with this licensing applicaticn, as we do fcr a danstic site.
1 2
Even though albeit, it might be some lesser amount.
.s d 3
MR. GILINSKY:
By the way, I m right 4
before; I didn't mean to say I agreed with this approach.
5 MR. HANRAHAN:
I didn't take it any other way.
6 MR. GILINSKY:
terms, 10 to 4, you know.
7 I guess I'm'still a little bit at a loss, I suppose, 8
as to what all of this entails.
It sounds to me that one 9
is making a kind of gesture in the direction of health and 10 safety, but also saying that really, this isn't going to have 11 much of an effect, if any, on what we do.
12 CHAIRMAN AHEARNE:
It may or may not.
It certainly 13 has an impact on the fact that it's another threshold that 14 anyone seeking to purchase an American reactor has to pass.
15 MR. GILINSKY:
Well, what's the threshold?
16 CHAIRMAN AHEARNE:
It means in the absence of this, 17 we would really be choosing or saying that we take into con-18 sideration -- we do not take into consideration any of the 19 potential problems with a reactor site, for example, in a jy 20 foreign country.
That even if we were to find a -- let us ae EI say, IAEA report that identified that this is a site where 21 11
.jh 22 a reactor could not be built or should not be built; we would, iit jdj 23 not choosing this kind of an option, would say, that's irrele-lI!
- 3" 24 vant to our decision.
i!
jI 25 MR. GILINSKY:
And, if you did choose the option?
I
41 1
CHAIRMAN AHEARNE:
'! hen, I would say it would be relevant.
MR. HENDRIE:
Why do you characterize it that way?
2 It doesn't seem to me that that option -- you seem to characterk 3
4 i=e it in a way which says that that information would not 5
be considered under Option 2, which is simply that we par-6 ticipate with the Executive Branch in preparing this assess i
7 ment, which is also what is proposed by OPE in this course 8
under Option 3.
9 And Option 3, having participated in the preparation LO of the assessment, the same people are not going to stand 11 back and say, boy, we did a stinky job, let's do it all over curselves.
And I find that unhelpful.
2 t3 CHAIRMAN AHEARNE:
I don't see it as doina it all 14 ver ourselves; but, I see it as there might be areas that pKR*VVNNFUY$
15 the Executive Branch assessment.did not address.
But, if we are participating in it
- N.A w eenur_g A 15 j
M. HENDRIE:
Yes, if our people are participating 17 l'3 in it, then why didn't they?
You mean, we brought it up and 19 they threw it out?
j; 20 CHAIRMAN.*dIEARNE:
Probably because we weren't the ax 11 lead agency in the development; the lead agency, I think, 21 Iil j{d 21 ends up controlling the document.
ISI 5gg 23 And I don't propose that --
45I l[z5 MR. KENNEDY:
This is the doctrine that says there 24 Ii iI is only one agency in Washington capable of doing anything
'S I
42 (5Mbf 1
and that is tl}e NRC.
Let me suggest to you that Mr. Tc;sa2' So CVIN andMr.Ragcganwerenotnecessarilyagreeingtothatview.
2 3
CHAIRMAN AHEARNE:
I disagree with that doctrine.
4 It's not that at all; it is simply recognizing that when one 5
organization is the organi::ation in charge of a document, the 6
fact that there are others participating in its development 7
does not give those others the ability to make sure that cer-8 tain things are addressed that the lead agency doesn't want 9
to be addressed.
10 MR. KENNEDY:
That certainly is a different govern-11 ment from that which I have been participating in, if that 12 is the case.
13 MR. HENDRIE:
Well, let's see; that sort of comes 14 down to, it seems to me, to a number of sort of readily fore-15 seeable outcomes.
l I
16 Number one:
the State Department recogni::es that 17 since the NRC is going to do an independent review on anything i
18 they don't crank into the original assessment, why, in effect, j
19 we become the dominant force in what is and what is not in-
];
20 cluded in the assessment.
So, that all the assessments come l
!eI
.e 21 out and we are satisfied with them since State has had to bl
$h$
22 agree taat we are the final say on what does or does not get I!i f!j 23 treated and in what detail and in what manner.
j!!
- 3' 24 If I were Secretary of State, I would find that i$
I 25 an obnoxious situation, I guess.
I
43 1
The second outcome is that we keep trac k of what 2
State does in its assessment, but really don't worry very 3
much about it because we expect that whatever they put in 4
it, we're going tc extend and supplement in every case.
5 I don't find that very satisfactory either.
6 I find it hard to see that we would make an honest 7
effort in participating with the Department of State in an 8
environmental assessment and then come back and say, now, 9
we're going to review it and see whether we like thistwork 10 which we've joined in.
It seems a peculiar proposition; it's 11 one way of saying, we won't join the game unless we get to 12 win.
13 MR. KENNEDY:
Isn't that what we generally say?
14 MR. HENDRIE:
Well, it's certainly not a proposition 15 that I care to support.
16 CHAIRMAN AHEARNE:
So, then, Joe, you would either M
7 say participate and at the end of that participation ~marr1 e, don't participate, b b G+-
18
~
as, o e
19 MR. HENDRIE:
Yes.
I wouldn't have an independent 31 20
- review, we I
lg 21 CHAIR N AHEARNE:
But if you were, those would i '. g a
! ] e; 22 be the only --
135 5$l 23 MR. HENDRIE:
- Yes, t5a g<
- 3" 24 MR. KENNEDY
Could we look at these options that il 2 5 25 Mr. Gilinsky put in a little bit more abstract way; rather 2
I i
44 1
than as specific courses, but rather illustrative of the 2
basic underlying assumptions as to what our role ought to 3
be.
4 Is it inconsistent to marry, for example, option 5 5
which says, we simply reassert the principle we have asserted 6
before; we do not have jurisdiction on these matters, but 7
because we have expertise to understand these matters and 8
issues, wa are prepared to be helpful to the Executive Branch 9
wnich has a responsibility, clearly defined in the Executive 10 order, and we will advise, assist, and participate with them; 11 fully, in the preparation of the EIS which they prepare.
12 I don't think that those two things are necessarily 13 inconsistent at all.
It seems to me, as a matter of fact, 14 that it might even be good government:
perish the thought.
15 CHAIRMAN AHEARNE:
They are not inconsistent.
16 MR. KENNEDY:
No, but the way they are cast here, 17 they sound to be; I don't think they are:
that's my point.
18 Do you agree?
19 MR. BICKWIT:
Yes, these are our options and I don't j;
20 think that's an inconsistent proposition.
We, I thought, w
j SI 21 clearly spelled out that this wasn't an exhaustive list of Ii (d
22 options; we can marry a lot of different things.
- i
-4f wru Al.A4 -
!~
23 gEAIRMAN AHEARNE:
I gather that % what 'ou h'd_
f l5L c& c u v p ^ U N,- 7 e
24
e===..a c
i1 5I 25 MR. KENNEDY:
Yes.
E I
l
45 1
MR. HENDRIE:
That would fit within my boundaries.
2 MR. BRADFORD:
I'm prepared to use Option 3 as a 3
working basis in order to try and get on to figure out what 4
to do about the specific case at hand.
5 I'm not sure that it necessarily provides a perfect 6
circle around all possible cases, as I've said before.
I'm 7
even troubled by some of the legal underpinnings with regard 8
to cases that don't happen to hit the criteria that would 9
trigger NRC concern.
10 Let me ask, okay, about a couple of things that 11 aren't specifically within the options:
supposing, for example, 12 the NRC either offered to review upon receipt of the license, 13 safety questions of concern to the recipient country, or were 14 requested by the recipient country to conduct a review; is 15 there anything in Option 3 that's inconsistent with our doing 16 that if the recipient wants it?
17 MR. HANRAHAN:
I don't think it envisions that as 18 a part of that option.
19 MR. BRADFORD:
Supposing we got such a request.
}i 20 CHAIRMAN AHEARNE:
Although, actually, I would assume'
$'jf 21 that even under our creck, Commissioner's Kennedy's option if E *. g o
g j d, 22 the recipient country asks the State Department for us to pro-as3
$dl 23 vide advise; that would not be inconsistent with --
- 5:
l!i 24 MR. KENNEDY:
No, not at all.
We provide advise
- 1 1
"I 25 !
on a variety of subjects on request, but such advise, generally 2
i l
I
46 i
1 speaking, ought to be provided within the general context 2
of the foreign policy of the United States.
We are not in 3
the business of running a consulting firm.
And even con-4 sulting firms, as a matter of fact, have to somehow comport 5
with the general tenor of foreign policy of the United States.
6 They don't consult in some country and we would if that was 7
a reasonable course to follow, we just would be providing 8
professional advise.
We would not be making any findings 9
and we would not be assuming any responsibilities.
10 That's a very difficult problem because the more 11 advise you give, the more reason the recipient has to think 12 you are endorsing whatever he chooses then to do.
13 MR. HANRAHAN:
I think that there are two points 1
14 that go to that:
one, is that should the Commission act in l
15 that s~nse almost as a consulting fizm ard thus do scmething that i
16 is readily, commercially available and secondly, would the 17 Commission have the Staff resources to do that and would the 18 way money is appropriated allow the Commission to reprogram 19 in a sense, its resources to do something like that.
31 20 MR. HENDRIE:
I would say that where a recipient w:
s3 21 j,
government wants some advise on the safety matter, we get i ]* g a
22
!a that kind of request and not infrequently.
Somebody will come 2si
}fj 23 and say, could you help us in this area, or another area.
l[a*
24 And to the extent there are Staff resources that can be pro-I 25 vided on some basis or other, we try to be cooperative
.1 l
47 1
under the general spirit of our agreements with regulatory 2
organizations in other countries.
3 And, I would treat such requests in that context 4
and not as part of a license application.
They would seem 5
to me to fall completely outside the license application 6
question and I would not want any -- want you to think here 7
I would regard them as in any way coupled tc a license 8
application.
9 MR. KENNEDY:
I would agree with that, yes.
10 CHAIRMAN AHEARNE:
Vic, what is your view of our 11 responsibilities on that?
12 MR. GILINSKY:
Well, I would limit our responsibil-13 ities to health and safety responsibilities, to effects on i
i 14 the United States and on the " global commons" -- and environ-l I
15 mental responsibilities, too.
16 CHAIRMAN AHEARNE:
That would be consistent with --
17 MR. GILINSKY:
And I would conduct reviews or par-18 ticipate in reviews beyond that only at the request of friends i 19 of the State Department or the Executive Branch.
j; 20 There is just too many problems connected with con-(!
-l 21 g
ducting health and safety reviews for facilities sited abroad i *. g a
!jd 22 when you are considering the effects within that country.
} lli as 23 The problem with components which were raised here a while ago A 3*
l--a 24 11 beyond that, we have no control over the construction or the
~I 25 operation of the facilities; it'saverydifferentproposition!
2 i
i l
i
48 i
I when. regulating health and safety in this Country.
2 There are other ways in which we can participate 3
in helping arrive at a sensable result.
I think that we 4
should be consulted by Ex-Im Bank where loans are made and 5
the State Department will consult us --
6 CHAIRMAN AHEARNE:
We would be developing an expert 7
services.
8 MR. GILINSKY:
Yes.
They ara needed and where we have them.
9 10 In dealing with quesitons such as effects,I don't know 11 whether we are going to move to the specific applicacicn before us here.
12 13 CHAIRMAN AHEARNE:
We are after this.
We're, I 14 think, shortly will reach a resolution of the Phase 1 issue.
Pftos H-15 And, then we will move on to that question.
4 16 MR. GILINSKY:
On questions of the Americans abroad, 17 if we are aware of possible dangers, I think, we have to 18 bring them to the attention of the responsible officials in 19 the government.
It might not be appropriate for us to address j l
jy 20 a letter to the Secretary of Defense on the subject of l
en E1 emergc.ncy planning at that base --
21 151fj 22 CHAIRMAN AHEARNE:
It might not be inappropriate.
iis j!l 23 MR. GILINSKY:
But, I'm not sure that I go beyond j5a
!ji that.
24 11 jI 25 CHAIRMAN AHEARNE:
So, if I would characterize it l
l
47-R 1
directly, it would be fair to say that you would 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 li 20 1*5 i
21 11 ji:
22 111
}!i 23
{!!8
- 5 24 1$
5I 25 l
l l
49
& }se &
TAPE #3 -1 1
restrict it to--s:nre what uc hc.=m 3eaerc.lly said, that is
.g/j s /s g 2
the involvement in the development of the enviromental 3
system.
4 MR. GILINSKY:
No, I would say that we do have 5
responsibilities for effect on the " global commons".
6 CHAIRMAN AHEARNE:
That's what he says,that one 7
is addressing.
8 MR. GILINSKY:
And, I think that we have to make 9
an independent--draw an independent conclusion from that.
10 And if that assessment is satisfactory, then fine.
11 CHAIRMAN AHEARNE:
That's to review that assess-12 ment.
That is not a question of their jurisdiction, so I 13 guess we don't have to answer it right now.
But, would you 14 then not have us be involved in that executive branch develop-15 ment assessment?
I 16 MR. GILINSKY:
I'm not unwilling to have us i
17 participate.
There is the problem that Joe raises.
That 18 ir you participate, are you going to be sitting there saying 19 that if you guys don't agree, we are going to get you at the j;
20 next stage.
And I don' t know just what the right way to l
lE 3
21 arrange that is; but, whether even to take that into account gg 22 is better for us to participate or not, is something I i51
$!l 23 wouldn't decide at this point.
8!!
!*l 24 CHAIRMAN AHEARNE:
Well, I think as I see it i
53 25 l focused solely on the Phase 1 question, which is the extent l
l
50 1
of our jurisdiction.
I think I read three, reviewing that we 2
do not -- that our jurisdiction stops at the " global commons" 3
issue and no farther, and two of us is extending it farther, 4,s 4
and that's a fair reading of the -- so, I think that is all.--
4 5
HR. GILINSKY:
It isn't clear to me that they went 6
that far, but if they did, it's all for the good.
7 MR. BICKWIT:
Well, Commissioner Kennedy said Option 8
5.
Option 5 as phrased does include the " global commons" 9
because of references earlier decision by the Commission, 10 which said, in fact, that we are required, so he said let's 11 go.
12 CHAIRMAN AHEARNE:
I think that does resolve the --
13 Len, I think that does resolve with that.
And, I guess there 14 are -- the appropriate action is that you prepare some sort s
15 of a statement; is that correct?
16 MR. BICKWIT:
An opinion.
17 CHAIRMAN AHEARNE:
Opinion on that.
18 Now, having done that we then -- Len, would say what 19 remains for us with regards to the specific license applica-jg 20 tion.
Now, before you get to that let me remind you of two f
s:
51 21 things.
First, in the order that we put out, we said we g,g i *. a 3j.
22 would announce our decision on these issues.
It says, after is!
$![
23 receiving submissions on the jurisdictional and procedural l!!
24 issues, the Commission will expeditiously review any new
[lJ$$up2 J
25,
,rchis....,
as well as materials already submitted and announce i
51 1
its decision on these issues.
2 At that etne, the Commission will also issue a 3
further order, to find the nature and scope of further 4
proceedings, if any to be conducted on specific issues within 5
the Commission's licensing jurisdiction arising from the 6
pending Westinghouse facility and ccmponent expert license 7
applications.
That's one point and the other point is--
8 Jim Shea.
It is my understanding that we do not yet have the 9
formal statement up from the staff; is that correct?
10 MR. SHEA:
That's right, on this case.
We are 11 prepared to send that up quickly.
12 CHAIRMAN AHEARNE:
Which I think is necessary before 13 taking any formal action on thic f.A 14 MR. BICKWIT:
It is certainly, usually, done, yes.
15 CHAIR EN AHEARNE:
All right.
Now, Len, would l
l 16 you describe--
17 MR. KENNEDY:
Would you give us some indication 18 of what "quickly" means; how many months is that?
19 MR. BICKWIT:
I view it in terms of days rather than
};
20 months.
I would say about 10 days.
4=
5g 21 MR. KENNEDY:
Thank you.
g,g hj 22 MR. BICKWIT:
Well, your basic decision, at this
!!jj!{
23 point, is whether to go out for a Phase 2 of this proceeding, ja!
24 and take comment on the specific export license applications 11
=g 4/
25 :
and the relationship of those applicationp to the interest you-4 I
h
52 i
1 have now decided fall within your jurisdiction snd your
(
2 responsibilities.
3 You're not committed to that, but you have indicated 4
through the langur.ge that the Chairman read, that you were 5
considering it.
6 An ents?
7 MR. KENNEDY:
Well, in this regard, I'm looking 8
at Page 30 of your extremely well-written paper and reads.ng 9
quote, clearly if you choose Option 5, there is no need for 10 a follow-on proceeding to develop additional information.
11 Now, the question is have we or have we not, we have 12 adopted something I'm not sureprecisely what it is.
But, could 13 you tell us now in your judgment, based upon your understanding 14 whatever it is that we have deciced, whe:her that statement i
15 is applicable to the circumstances.
16 MR. BICKWIT:
I think that we have to retreat 17 from that statement of our well-written paper.
18 MR. KENNEDY:
Well, it happens to all of us.
19 MR. BICKW1T:
Option 5, at thetimewhenwemadechad i
j; 20 statement, at least one of the authors was under the imoressiod
.e 5g 21 that " global commons" was not included within the Option 5.
g, i '. g a
[jd 22 I now foresee, as it is written that Option 5 does include iai
}!
23 the " global commons" and you may--
dL
!I' 24 MR. KENNEDY:
Yes, rather exolicitly.
11 53 25 MR. BICKWIT:
Yes, you may then want to take public l I
I
53 l
1 com=ent on the impacts of this reactor shipment on the
(
2
" global coc=ons".
3 CHAIRMAN AREARNE:
Now, let me make sure that I 4
understand.
As Commissioner Kennedy said, he would like to l
5 make sure that we do understand what we have just decided.
6 In the restriction of cur jurisdiction to no V
7 af the " global commons", those of you who felt that way, 3
8 did you foresee that to be ended at the time that the reactor 9
arrived at the foreign shores or would you extend it to be 10 including the effect on the " global cot:: mons" while the re-11 actor was operating on the foreign hores?
O 12 MR. GILINSKY:
Well, M operating it beyond.
13 this operation and the effect of the waste and et cetera, 14 et cetera?
15 MR. STOIBER:
That, at least, is the approach D
16 used by ERfA in its enviromental statement, 1542.
I 17 MR. GILINSKY:
Well, what other effect would there 18 be.
I mean there's just things falling off ships or some-j 19 thing?
j; 20 CHAIRMAN AHEARNE:
Well, with the reactor, there l
$lg 21 would be none.
For shipping fuel, there might be, particular,.
g, j
22 ly if it is spent fuel, s o that transportation " global commons" 3l!
15 23 may have an impact on it.
p'g 24 MR. GILINSKY:
You mean for exporting spent fuel?
i1 53 25 CHAIRMAN AhEARNE:
Importing.
t I
i
54 1
MR. KENNEDY:
Or otherwise disposing.
2 CHAIRMAN AHEARNE:
So, you did have in mind--
3 MR. GILINSKY:
Surely, yes.
4 MR. HENDRIE:
I'm afraid, as Vic says, except for 5
the vessel rolling on somebody's toes why the impact is not 6
very noteworthy uptil you begin to make it run like a reactor 7
__.._m._
products.
-r~
8 CHAIRMAN AHEARNE:
That's what I thought.
- Len, 9
used the word " shipment", and I thought it was like a lot 10 broader than that.
11 MR. BICKWIT:
Oh, I assumed it was a lot. broader.
12 CHAIRMAN AHEARNE:
All right.
So, it is--you are 13 now advising that given this decision it is appropriate to go b@*
14 back outzt-e Phase 2?
15 MR. BICKWIT:
Yes.
Again, this office doesn't feel !
16 CHAIRMAN AHEARNE:
I'm not saying that you would 17 say it is required, but it would certainly be appropriate.
18 It's not for--the questions are not foreclosing.
19 MR. BICKWIT:
No, I don't think so.
Now, OPE l
j; 20 has a recommendation on this particular point.
l w ::
ffg 21 CHAIRMM AHEAP3E:
Well, before it makes its recom-i%
aj.
22 mendation, I'd like to mention that I feel that we committed 5l!
!3
[
23 ourselves to going back out.
The time of the order that we, h00 6
I' 24 Dr. Hendrip and I, felt that we ought to ask both questions 11 53 25 at the same time; we didn't, and I should think j
55 1
we are committed to go back out.
OPE--
(
~
2 MR. BICKWIT:
I would like to say in response to 3
that.
I don't think that the Commission is committed; I 4
think it is perfectly appropriate to do it.
5 I think, as a matter of fairness, I think we can 6
comment on this.
Were you to look at some of the comments 7
that have come in with respect to the " global commons" and 8
thereby deprive others who might want to answer them, that 9
there would be a question of fairness.
If you felt, however, 10 that you weren't going to look at those expunged--beyond 11 those comments, I think it would be perfectly fair.
12 CHAIRMAN AHEARNE:
Well, I certainly already admit 13 that some of the comments that you provided in your paper--
14 MR. HENDRIE:
I have less trouble expungiug, Len, 15 than I do remembering.
My expunger gets more efficient as 16 I get older; my rememberer gets less efficient.
17 MR. BICKWIT:
I think that's the real question, 18 as far as fairness; how good is your expunger?
19 MR. KENNEDY:
Aside from the questions, how long
];
20 would it take to do this?
I mean this is a proceeding, which 21 has gone on longer than most events of major history and one j.l b
- ll 22 wonders if it will ever come to an end; or whether like so IEl
}!~
23 many of the proceedings of this Commission it becomes a matter l!.
- E' 24 going on through several decades and becomes more a matter i!
.! I 25 l of the historians than decision-makers.
56 1
MR. HENDRIE:
I think we ought get reading--
(
2 CHAIRMAN AHEARNE: Iat us get to this point that cupit to 3
be raised--to be raised to see if we have to go this route.
4 MR. HENDRIE:
I know that.
I think we ought to 5
find out what the currrit winner in the Guiness Book of Records 6
is, if we have, you know, a likely record setter going here, 7
we might want to take that into account.
8 CHAIRMAN AREARNE:
Some of the FTC and FCC pro-9 ceedings have won.
10 MR. HENDRIE:
Yes, I think so, too.
11 It seems to me, as I say, my memory staggers under 12 the burden of this sort of protracted and occasionally re-13 visited proceeding, but I do seem to--you jog my ce:ory, it does seem 14 to me that I wanted to get it all-at cne fell-sq and I guess 15 that creates my part in obligation to be willing to take 16 comments now on this specific case.
I would say, however, 17 that some of the things that have come in talking about the 18 Phase 1 approach, were not totally naked of commentary on the 19 specifics.
So, nevertheless, I think we ought to have it, t
.13 20 but time does move on a pace.
A number of commenters to the
<=
5I 21 j,g general question, in fact, extended some of their remarks to l'54
.a a
22 the specific and I would feel that a rather limited comment i!!
5!
23 period would be--
lL
- 3' 24 CHAIRMAN AEEARNE
Yes, I'11 agree.
i1
- 1 25 MR. HENDRIE:
--for my own part, 15 days would be l
2 l
1
57 I
sufficiency.
(
2 MR. KEIEEDY:
I would agree.
3 MR. BICKWIT:
I think that's reasonable.
4 MR. BRADFORD:
Just ask the people that hold. the 5
prevailing position, what you are actually going to do with 6
the " global con: mons" once these comments are in?
7 CHAIRMAN AHEARNE :
Protect them.
8 MR. BRADFORD: I got that far.
9 MR. HENDRIE:
I'm glad you asked the question and 10 I'm glad we've got an answer.
11 MR.BRADFORD:
Legally, what can the Commission do 12 if it feels that it is confronted by adverse impact on the 13
" global con: mons"?
14 MR. BICKWIT:
It could take that into account in 15 it's inimicality judgment.
16 CHAIRMAN AHEARNE:
It could.get the license.
17 MR. BICKWIT:
It could.
I 18 MR. KENNEDY:
It could--stop me if I'm wrong.
It p&
19 could require steps in mitigation of thoseg-hhl effects, 13 20 as a condition for issuing the license, couldn't it?
s:
5g 21 MR. BICKWIT:
Recognizing as Carl said that those g,g 2%
3j4 22 conditions may not be enforceable, but it does.
Nonetheless, aa!
$!l 23 it could.
15s
!!I 24 MR. KENNEDY:
Except, in this case, they were il 25 ;
enforceable because we were not going to issue the license.
.5 i
I
58 1
MR. BRADFORD:
In this specific case, what issues
/
2 seem to be ruled out by decision to look at the " global commons '
3 but not at the public health and safety; that is, given the 4
location of the reactor, I suppose that either an accident 5
large enough to have an impact on the public health and 6
safety or the disposals of the spent fuel.
To name -- the 7
two sort of -- two issues that come to mind as normally having g
a potential " global commons" impact are available for comment.
9 Evacuation planning comes to mind as one that might 10 have had an effect on the public health and safety, but prob-11 ably has no effect on the " global commons".
12 CHAIRMAN AHEARNE:
I would guess you could make a 13 reasonable argument that disposal of fuel might not be under -
14 it's contained within --
15 MR. BRADFORD:
Well, if one knows what the plans I
16 for disposal of fuel are and, in fact, it's to keep it in-17 definitely within the Philippines, then maybe, maybe not.
I 18 guess then you would have to know something about disposal i
I f
19 sites and whether or not it might wind up in the ocean.
l i
j; 20 Okay, I'm just trying to get some idea, both for l
wr El myself and for the benefit of those who may be preparing 21 1*1 jij 22 comments in the next 15 days, what issues appear to be ruled i
i!!
}dj 23 out by the Commission decision to stick only with the " global lh:
24 co= mons" and not to take comments on the public health and 11
$3 25 safety.
I
59 1
CHAIRMAN MEARNE :
Vic, could you help us?
(
2 MR. GILINSKY:
Well, it's whatever you thought 3
it was.
It's when you want to extend it a little further, it's 4
minus that extra piece.
5 Well, you know, there are obvious questions of 6
occupational health and safety, which are obvious.
Evacuation--
7 MR. BRADFORD:
Well, those would have been purely 8
domestic--
9 MR. GILINSKY:
Right, yes.
10 MR. BRADFORD:
--issues in any case.
The ones that 11 seem now to come out of this case, to me, have to do with 12 the U.S. Military facilities.
But, as I was thinking that 13 through out loud it seemed that almost any type of accident 14 that would have affected them, would also affect the oceans.
D 15 MR. STOIBER:
I think if you look at the ER/A 5042 16 document, they have a fairly long list of types of things 17 concerning the " global commons" that were analyzed; I would 18 suspect that gives you a pretty good list of things to look 19 at.
The " global commons" being basically the high seas for
.y ;
20 things like possible waste disposal problems and the " global ae 51 21 commons" also considers airborne releases which may l
g,g c *. o
!j.
22 go around the globe, so I wouldn't expect airborne releases i3!
-tf.,,,f 5
23 to be anc :.'..e; area.
p{ ". 24 CHAIRMAN AHEARNE:
Now, you may well end up g
~I 25 concluding that airborne releases, particularly given the way j
.1 l
l i
60 i
I they're insighted, as far as the " global commons" effect is 2
negligible, although the local effects might be quite 3
significant.
So that would be a discrepancy say between 4
where you and I were and where the others were, something like 5
that.
6 All right, Len, do you have--well, I guess we have 7
to make a decision?
What is the feeling?
I feel that we have I 8
to go for the " commons" 15 days, is fine with me.
9 MR. KENNEDY:
I agree.p&# ~J M "
10 CHAIRMAN AHEARNE:
"io, do yca agrec?
11 MR. GILINSKY:
I agree.
7 Y
12 CHAIRMAN AHEARNE:
BieM 13 MR. BRADFORD:
I agree.
14 CHAIRMAN AHEARNE:
Okay.
Len, can you prepare 15 us something?
i 16 MR. BICKWIT:
Yes, I will.
17 CHAIRMAN AREARNE:
Any other issues, questions?
18 MR. HENDRIE:
Only a comment.
Painful as these 19 the preparations for these meetings seems to be, and painful -
13 20 as the discussion seems to be, we enter now on the really l
12 i
'I l1 interesting part which is, to agree on the language of the 21
$~y j 22 Commission order, which expresses what each of us thinks; we 351
}!
23 have come to, by way of decision at the table.
- 8-
!2" 24 Now, my experience in the past, it suggests to me il
.53 25,
that this is the interesting part because always before, I
i
61 1
particularly in the export area, I've had a whale-of-a-lot 2
more trouble getting agreement on the language of an order 3
after the Commission has formerly acted at the table or at 4
least rminally, formerly acted, then in getting the decision 5
at the table.
So, I will note that fact and say simply I hope 6
that we will be able in fact to move more rapidly on this one 7
than has been the past practice.
8 CHAIRMAN AHEARNE:
All right.
9 MR. BRADFORD:
I had thought you were going to say 10 something else in that same context.
I take it what comes 11 out of this meeting is an order with regard to the specific 12 Philippine proceeding.
Now, do you also contemplate a general 13 decision on the Commission role?
14 MR. HENDRIE:
I think it ought to reflect the 15 general decision.
l 16 CHAIRMAN AHEARNE:
Yes, Phase 1 was explicitly l
17 the reach of our jurisdiction.
18 MR. BRADFORD:
Well, one has to decide some aspects 19 about an order to reach the Philippine case.
It's not clear 13 20 that you have to say everything there is to be said about ee 51 21 j,g NRC jurisdiction.
i$o 22 CHAIRMAN AHEARNE:
Except, Peter, when we went out 3g.
- .1 3!l 23 widt the first order, we explicitly identified the issue of l58 24 Phase 1 was going to be the jurisdiction.
I think the juris-11 53 25 j diction on the Philippines was the jurisdiction for exports.
i l
I l
62 1
MR. KENNEDY:
That's what I thought we decided.
2 MR. BRADFORD:
If that's what you think you decided, s
I 3
then that's basically what you decided upon.
One had to have 4
Phase 1 in order to decide what to do with the Philippines 5
proceedings.
As a result of Phase 1, one doesn't have to 6
define, necessarily, what the Commission will do in all 7
possible hypothetical cases in the future; but, if that's 8
what the majority feels they've come down on dming, then it 9
might as well be set forth.
10 CHAIRMAN AREARNE:
Well, I think it's useful 11 once we have reached a policy to make it clear.
12 MR. BRADFORD:
Yes.
13 CHAIRMAN AHEARNE:
Because,.I think we have gone 14 through that process with extensive public comments on it.
15 MR. KENNEDY:
It might even be unique.
f I'
16 MR. HENDRIE:
I must say that my intent back when 17 we moved into this Phase 1, Phase 2 direction was to rec-18 ognize that we were in a new regime with the 'mplimentation 19 of the executive order on enviromental assessments and that j;
20 it was not only necessary to the detailed dealing with th'e i
er l
El g,g Philippine application, but very useful for the longer run 21 e *. a gj.
22 to have--to set a policy.
And, I would hope that we have now tat
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23 done that.
Now, you know, like any action that the d5.
24 Commission takes, I'm not willing to say that this is 11 53 25 irrevocable, and that a majority of the Commission down the
63 1
line, but we may or may not find something or some problem
(
2 and revamp.
But, I think sort avoid it until such happens, 3
that we've set a general policy in this area or at least if we 4
produce an order that the majority will vote on.
5 CHAIRMAN AHEARNE:
Right.
Okay.
I 6
MR. BRADFORD:
And where do2s this leave the final 7
articalation on the U.S. Government on the health and safety 8
question.
That is, you have a Philippine Commission saying 9
that for some purposes the reactor is, in their view, unsafe.
10 You have the U.S. Government Executive Branch position saying 11 that it is safe.
I take it if the shoe were on the other 8
12 foot, it would be CJC'sconclusion that we had no power to--
13 CHAIRMAN AREARNE:
Like the Philippino site is--
14 MR. BRADFORD:
Well, you have the PUNO Commission 15 saying whether it is an old design with an unresolved plate i
16 with unresolved safety issues.
17 MR. HENDRIE:
I assume if the Government of the 18 Philippines, which is buying the reactor and installing it, 19 decides that it doesn't meet their standards, that they will 13 20 either not execute the project or will fix it.
I
<r 5g 21 MR KENNEDY:
Did we not receive a memorandum g,s '. g o
3j.
22 from International Programs, even yesterday afternoon, in-
- a#
}!j 23 dicating that that's recisely what they were doing?
- 5' 24 MR. HENDRIE:
But, would in any case, I think it's il
-ag 25 i sort of their business and our--extent of our reach here is l
64 1
something that we've defined today.
But,--
2 MR. BRADFORD:
From that question, then, whatever 3
the Executive Branch in U.S. Government position, the NRC 4
has no official position.
5 CHAIRMAN AHEARNE:
That seems to be what--
6 MR.
ENDRIE:
I think that's right.
7 MR. 02AOFCRDV We would be taking no view of it.
8 MR. HENDRIE:
Yes.
T5/utd 9
MR.
It's not getting any NRC stamp of 10 approval or disapproval.
11 MR. EENDRIE:
I.think that's right.
And I think 12 if the regulatory authorities in the Philippines asked us for 13 some assistance, as in fact we have--let's see.
Have we 14 dealt directly with them?
But, at any rate, if they ask us 15 for some assistance, you know, would you tell us what the l
16 latest seven REG guides are, something like that, we would 17 deal with that in the terms--in terms of our normal 18 Regulatory body to Regulatory body assistance agreements and 19 general spirit of cooperation. Pr esumably, as we always do,
l j;
20 do what we can to help.
But, that be one re ;ulator to l
glg 21 another across the international boundary, and not in the e *. a II, 22 context of the license application.
}lli 23 CHAIRMAN AHEARNE:
All right.
Thank you.
ls'
- E' 24 (Whereupon, this meeting was adjourned at 11.15 p.m.)
il 53 25 i
l
65 CERTIFICATE OF REPORTER 1
/
2 This is to certify that the attached proceedings 3
before the Nuclear Regulatory Commission in the matter of:
4 Discussion and vote on SECY-80-20 Philippine 5
Export Application, Commissioners' Conference Room 1130, 6
Elevanth Floor, 1717 H Street, N.W., Washington, D.C.,
- Tuesday, 7
January 29, 1980, were held as herein appears, and that this 8
is the original transcript thereof for the file of the Commission.
9 10 11 12 e
h(
L 13 14 anice R.
Smith O ficial Reporter 15 16 17 18 19 j;
20 w
$5 21 1*1j 22 sig Idj 23 453 6%-i 24 il 53 25