ML19305A259
| ML19305A259 | |
| Person / Time | |
|---|---|
| Issue date: | 02/14/1979 |
| From: | Ahearne J, Bradford P, Gilinsky V, Hendrie J, Kennedy R NRC COMMISSION (OCM) |
| To: | |
| References | |
| REF-10CFR9.7 NUDOCS 7903080597 | |
| Download: ML19305A259 (30) | |
Text
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NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:.
PUBLIC MEETING
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BRIEFING ON NRC LEGISLATIVE PROPOSALS INCLUDING SITING & LICENSING AND OMNIBDS LEGISLASION
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s Place -
Washington, D. C.
Date -
Wednesday, 14 February 1979 Pages 1 - 30 s
Telephone:
(202)347 3700 ACE. FEDERAL REPORTERS,INC.
OfficialReporters-444 North CapitolStreet j.
Washington, D.C. 20001 NATIONWIDE COVatAGE. DAILY
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. DISCLAIMER -
This is. an unofficial transcript of a meeting of the United States 14 February 1979in the Nuclear Regulatory Commission held on Wednesday, The Commission's offices at 1717 H Street, N. W., Washingt.on, D. C.
Th'is transcript meeting was open to public attendance and observation.
has not been reviewed, corrected, or edited, and it may contain irsaccuracies.
p
. The transcript is intended solely for general infomational purposes.
As provided by 10 CFR 9.103, it is not part of the for.nal or informal
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record of decision of the matters discussed.
Expressions of opinion in this transcript do not necessarily reflect final determinations or beliefs.. No pleading or other paper may be filed with the Comission in any proceeding as the result of or addressed to any statement or argument contained herein, except as the Comission may authorize.
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2 CR2761 1
UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
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PUBLIC MEETING BRIEFING ON NRC LEGISLATIVE PROPOSALS 5
INCLUDING SITING & LICENSING 6
AND OMNIBUS LEGISLATION 7
8 Room 1130 9
1717 H Street, N. W.
Warhington, D. C.
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Wednesday, 14 February 1979 The enni ssion met, pursuant to notice, at 4:30 p.m.
BEFOhE:
DR. JOSEPH M. HENDRIE, Chairman VICTOR GILINSKY, Commissioner RICHARD T. KENNEDY, Commissioner
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PETER A. BRADFORD, Commissioner JOHN F. AHEARNE, Commissioner PRESENT:
9 Ms. Moe, Messrs. Bickwit, Malsch, and Stoiber.
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MELTZER t10 ilal 1
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MR. STOIBER:
I would like to introduce Marian 3
Moe, who is a new attorney with our office.
We have moved her
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l very briskly into the siting and licensing area of things.
She 1
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had had some experience with 'these issues and we are happy 6
to have her good' experience.
7 And in fact, the very issue on which we asked her to 8
work initially was the hearing issue, which you were discussing 9
in your last session of siting and licensing.
And the question 10 ' that had been posed, as we ended the session last time, is what 11 kind of experience EPA and FTC had had with their hybrid or legi s-12 lative style hearings, and we asked Marian to look into that.
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13 She prepared a memorandum, which serves as sort of an 14 outline of the discussion; and I would like to have her go 15 through that.
16 That memo was circulated to you yesterday, discussing 17 the. experience of FTC/ EPA with the type of rulemaking hearings.
18
. So, if it's agreeable to you, perhaps I could just 19 turn the meeting over to Marian, and she.could discuss and 20 outline what she found in her inquiry about those two agencies.
21 MS. MOE:
The FTC and EPA both used various forms of 22 hybrid rulemaking.
The FTC has used it,since 1974, with a
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23 number of hearings; most of them had been major rulemaking 24 hearings on subjects that would traditionally have been dealt Acs. Federal Reporters, Inc.
25 with in informal rulemaking.
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4 1
The kind of procedures they use -- portions of it 2
- are required by the Moss-Anderson Act, and portions of it are 3
the way the agency has decided to implement the Act.
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Essentially, the FTC files a notice in the Federal 5
Register.
Then they solicit responses from the public that 6
include suggested proposed material issues of disputed fact.
7 These material issues of disputed fact, at this point, are --
8 they have to be brought up at this point in order for these 9
issues to be later on subject to cross-examination.
10 So, the experience of FTC has been that they get a 11 great number of recuests and a great number of issues that are 12 proposed as material issues of disputed facts at the very out-
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13 set of the disputivo process.
14 CHAIRMAN HENDRIE:
Sort of anyone that wants to 15 protect an eventual desire to cross-examine has got to get it 16 up front?
17 MS. MOE:
Exactly.
18 CHAIRMAN HENDIE:
That means you try to identify 1
19 everything that you conceivably could,--
20 MS. MOE:
That's right, including the issues that, 21 according to FTC staff, are pretty clearly not factual issues.
22 They are issues that are essentially questions of law or
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23 cuestions of policy.
But in order to protect the possibility 24 that they could frame it as a factual dispute, or it may become Wai Reporters, Inc.
25 part of the context of a ' factual dispute later on, they have to
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1 propose it initially.
2 Then what happens is the participants comment on the 3
initial notice.
The FTC uses those comments to promulgate a 4
second public notice, all of which goes on over a period of 5
tbne.
6 The second notice is supposed to more specific as to 7
which issues are going to be discussed at the legislative 8
hearing.
9 Some people who I talked to commented that it really 10 '
doesn't get narrowed down a great deal by the second notice, 11 and that you still have a very broad area that is then the 12 subject for the oral-legislative hearings, which is the next n
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13 step.
14 The public~ hearing is usually held before one 15 presiding officer.
The FTC has a trial staff, which assists 16 the hearing officer, prepares questions -- they had access to 17 staff which can help frame technical questions.
18 The various parties can ask the hearing officer to 19 ask specific questions or delve into certain issues, but no 20 direct cross-examination of one party to that of another party 21 is allowed at that point.
22 COMMISSIONER AHEARNE:
Are these hearing officers s.
23 administrative law judges?
24 MR. BICKWIT:
Yes.
Wederal Reporters, Inc.
25 MS. MOE:
After the public hearing, there is a period
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1 of time which is allowed for the different parties to examine 2
the record; and I think, cenerally, it's about a week -- within a week they h've to make a formal request for cross-examination 3
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4l on specific material issues of disputed fact.
5 The presiding officer rules on which issues will then 6
be allowed further cross-examination.
7 COMMISSIONER AHEARNE:
Further --
8 MS. MOE:
Excuse me.
To allow cross-examination.
9 The question of which issues are allowed to be 10 '
subject to cross-examination is appealable to the Federal Trade 11 Commissioners themselves.
They have apparently had a mixed 12 experience with that.
13 In one case that was cited to me, I think something 14
.like 29 issues of disputed fact were appealed to the Commission-15 ers.
What they did is they came back and said, "We are not 16 only not going to allow cross-examination on that,~we're going 17 to go further than that and not allow cross-examination on some 18 issues that the hearing officer was going to allow cross-19 examination on."
20 So they have really gotten sort of a mixed experience 21 with that.
22 Apparently the material -- the issues of material
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23 disputed fact are not always narrow enought to make a very clear 24 record.
r.o.rm n.or nen, inc.
25 COMMISSIONER AHEARNE:
Is there any appeal past the
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1 Commissioners?
2 MS. MOE:
The only appeal past the Commissioners 3
would be arbitrary, capricious -- question of whether it's i
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4 arbitrary and capricious ruling.
5 COMMISSIONER AHEARNE:
Has this procedure been used 6
enough that there has been' opportunity for that to -- have 7
there been any cases taken to court on those grounds?
8 MS. MOE:
I don't know whether there have been or not.
9 I can check on that, and get back.
10 I I think the major criticism of.the way this has 11 worked'at,the Federal Trade Commission has focused on the 12 problem of the record being too broad, not specific enough; and 13 one of the results of that has.been, at an early point in the 14 process,.before the issues are. clearly delineated and discussed, 15 before the oral legislative hearing, the parties are required to 16 go ahead and ask for -- make their formal request for which 17 issues they are going to dispute.
18 And because of that, they don't really have enough'of 19 a record to narrow down which issues they are going to look at:
20 That seems to be a criticism both within the Federal Trade 21 Commission, by staff there, and by persons on the cutside.of 22 the Commission.
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23 The Environmental Protection Agency,lias had -- has 24 been much more enthusiastic about the way their procedure has Ace-Federal Reporters, Inc.
25 worked.
They are a new agency and have basically used the o
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hybrid proceedings for most of their rulemakings.
For all 2
their rulemakings that I am aware of at this point, they start 3'
out with issuing a proposed opinion, and -the evidence that-it l
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is based on is set out in the record and any reports or 4
material that the staff has relied on is made available to the 5
6 Public.
7 COMMISSIONER BRADFORD:
This proposed opinion is 8
issued before there are any hearings at all?
9 MS. MOE:
Yes.
10 MR. BICKWIT:
It's a proposed rule.
11 MS. MOE:
Right.
12 And the way they describe it is really they have done
.13 almost all the staff work that they're going to be doing at s
14 tha't point, and they know what they want to -- the way they 15 want to rule.
16 COMMISSIONER BRADFORD:
Now, is this' for rulemaking 17 Proceedings, or would this also apply in something like a 18 discharge permit situation?
- 19 MS. MOE:
So far they have used it in six different 20 procedings.
They hhve used it on three rulemaking hearings, which were all auto emission standards suspensions; and they 21 22 also used it on three hearings that were under the Toxic
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23 Substances Control Act.
24 The Toxic Substances Control Act is -- mandates the Acefedersi Reporters, Inc.
25 hybrid hearing pr,ocess.
The data, emissions standards, were
I all included, and they have a judicial opinion that went along 2
with'that.
3 COMMISSIONER BRADFORD:
But these are all multi-party
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4 situations.
It's not a situation where you have an applicant s
5 6
MS. MOE:
That's all -- they're almost a party into 7
situations.
From what I have been told so far, they have not 8
used it in any specific licensing case.
They expect to use it 9
in the next few months under their water' permit procedures for 10 '
discharge, discharging pollutants; and that has traditionally 11 been dealt with in an adjudicatory fashion.
And now they are 12 proposing that they have authority under initial licensing i
13 portion of the Administrative Procedure Act to use a hybrid.
14 proceeding.
It's very possible that may be challenged as well.
15 So the hearings that they ha e used so far -- let's 16 return to that -- they receive detailed written responses to 17 their published notice, and there is an opportunity allowed for 18 all participants to examine and look at any of the written 19 responses.
20 And only after all that is gone through is a public 21 hearing held.
Normally, it is held before an agency panel.
22 EPA has used a panel structure, with several permanent members 23 of the panel.
Often a lawyer would be one member of that panel.
24 And they they have a rotating set of members to that Ace-Federal Reporters, Inc.
25 panel that are normally technical experts that can deal with
10 1
Specific probing questions that have been brought up.
2 COMMISSIONER AHEARNE:
Rotating in the same hearing?
3 MS. MOE:
Rotating in the same hearing.
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4 For example, in one of the PCB disposal hearings,.
S they might have someone who is an expert in soils, wculd be a 6
technical panel member sitting in one portion of it; and anothez 7
person, who may be a water table expert, may be sitting in 8
another portion of that panel.
COMMISSIONER AHEARNE:
How is the --
9 10 MS. MOE:
How is the record brought together?
'1 COMMISSIONER AHEARNE:
How is the vote taken?
1 12 MS. MOE:
I didn't go into detail on that.
They have (N
13 several. permanent members, which apparently is one' portion of 14 that.
15 MR. MALSCH:
The rulemakings that I'm familiar with, 16 the record of the hearing ~is ust anoth.,
item to be considered, j
17 is the record up for decision.-- (Inaudible.) -- No vote is
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I 18 taken for such a system.
They are there to 19 compile the record, and that's the end of it.
It's more of an 20 information gathering than a formal licensing hearing on which 21 a decision must be based.
22 MS. MOE:
Although the panel -- it is the panel that 23 decides whether any of.the requests for cross-examination, at 24 the next step, should be granted.
So, in that sense, they do Ace-Federai Reportws, Ire.
25 make one of the decisions.
4
11 ji 9 1
They haven't had to deal very much with when cross-2 examination should be granted.. They have only had one request, 3
and they granted it.
4 Both agencies said that they have not grappled with 5
the problem of.when something is a.. question of law and when it' 6
is a question of fact.
So they were not very helpful in that nd t10 7
sense.
s til 8
COMMISSIONER BRADFORD:
The FTC must have grappled -
9 with something then when it turned down all those requests 10 !
to-cross-examine and trim back the hearing examiners.
I 11 MS. MOE:
They apparently didn't use any set of 12 guidelines to determine whether it was a question of law or a 13 question of. fact.
They also could have turned it down because
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14 it wasn't material.
15 If they did make a decision based on that distinction, 16 they did not set it out.
17 COMMISSIONER AHEARNE:
The Commission has turned it 18 down.
You're familiar with that?
19 COMMISSIONER BRADFORD:
Yes, except that if you are 20 worried about what a review in court might say, you might be 21 concerned that if you didn't give reasons -- you can get by b.
22 with almost any re.ason, but you sometimes can't get by without
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23 stating it.
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24 MR. BICKWIT:-
If you say it's not material, then that a-Federes Reporim, Inc.
25 does --
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1 COMMISSIONER BRADFORD:
That's right, but I gather it 2
didn't way that.
3 MR. BICKWIT:
They said it's not a material issue or I
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4 disputed fact without specifying whether it was the material 5
part or the fact part that gave the basis for that proposition.
6 CHAIRMAN HENDRIE:
Why don't you jot that down some-7 where.
You know, you could never tell --
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8 (Laughter.)
9 COMMISSIONER AHEARNE:
You like the ring ofiit?
10 CHAIRMAN HENDRIE:
I like those rooms with multiple 11' exits.
12 (Laughter.)
13 COMMISSIONER BRADFORD:
Defense in depth'.
14 COMMISSIONER AHEARNE:
Marian, you had a statement in 15 here on intervenor. funding.
16 MS. MOE:
Yes, the people I spoke with at"both 17 agencies -- and I also spoke with some people in Government 18 Affairs Committee in the Senate who had been working on the 19 Percy-Ribicoff Administrative Reform bill.
Inevitably, when I 20 tried to ask what -- how you could be sure that you could get 21 the same kind of probing depth with this hybrid hearing process, 22 as you are able to achieve with cross-examination, they said 23 there are a few things that are essential to making this 24 procedure work effectively.
ten-Federaf Reporters, Inc.
25 Probably the most important is to have an objective 1
13 jl 11, 1
and through presiding officer, whether it be an individual or 2
a panel.
Another is to have a full and accessible record by 3
the agency at an initial stage, so that you begin with all the I) 4 information that you are going to need to support a later 5
' decision or discussion of what the dispute is.
6 And a third is,in order to allow the parties that are 7
intervenors to focus in a more sophisticated way on wha.t the 8
facts in dispute are, they need the intervenor funding.
Other-9 wise, they felt that you were going to end up spending a lot of 10 ' time fending off requests for cross-examination on what were 11 essentially policy or legal questions.
12 COMMISSIONER KENNEDY:
Does thatimply that EPA and?
(m 13 FTC experienced a lowering of the level of cross-examination 14 requests because -- directly attributable to provision of 15 invervenor funding?
16 I.ask because it's argued that the reverse could be 17 true.
And if this is the case, you know, it's important.
18 COMMISSIONER GILINSKY:
Does EPA fund intervenors?
19 MR. BICKWIT:
Under the Toxic _ Substances Control List 20 only.
21 COMMISSIONER AHEARNE:
Does FTC?
22 MS. MOE:
FTC does.
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23 COMMISSIONER KL'NNEDY:
They have -- also have a 24 specific statute for
-authorizing it.
Wooeral Reporters. Inc.
25 MS. MOE :
Commissioner Kennedy, that specific question O
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wasn't really -- we didn't really discuss it in that way.
The 2
implications seemed to be more that the ability to frame more 3
sophisticated and narrower questions would be there with
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4 intervenor funding, that the ability was less likely to be 5
there without.
6 COMMISSIONER GILINSKY:
The point here was what?
7 That they had capable lawyers because they had funding.1which 8
they would not have had otherwise?
9 MS. MOE:~
We didn't spend a lot of time talking 10 '
about lawyers.
We spent a lot of time aobut how you resolve 11 more technical questions, the kind of questions where you have 12 experts that disagree on -- basically, on the implications to TO 13 be drawn from the same data base, 14 So, if you don't have an expert who is familiar with 15 data, you are not really able to submit as carefully drawn up 16 written submissions in response to the issues.
17 COMMISSIONER GILINSKY:
Let me ask it this way:
18 Where does the money go mostly?
Does it go for experts?
Does 19 it go for lawyers?
20 MS. MOE-I can't answer that.
I would say, based on 21 some of my past experience, that it is often easier to find a
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lawyer than it is to find a technical expert in a narrow field.
22 23 COMMISSIONER GILINSKY:
Who work for nothing or --
24 (Laughter.)
woo rw neoo,im,Inc.
25 MR. STOIBER:
I propose to take the Fifth Amendment 4
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1 on that.
2 COMMISSIONER GILINSKY:
Ed Mason once said, when we 3
were talking about this a long time ago, "You certainly I
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couldn't get an MIT professor --
5 CHAIRMAN HENDRIE:
At these rates, right?
6 (Laughter.)
7 COMMISSIONER GILINSKY:
Yes, "at these rates."
8 CHAIRMAN HENDRIE:
Let's see, where else do we need*
9 to go.
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10 MS. MOE:
I just might mention the last paragraph 11 that was on this memo is that the Administrative Conference is 12 doing a major study on the FTC's hybrid hearing process, and
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13 the FTC is also doing a study.
I. don't think it's' going to be 14 as great an undertaking as what the Administrative Conference 15 is doing; and I also think that what. happens with water 16 procedures at EPA will_be very illuminating on our 17 procedures, because it's going to be dealing with a procedure 18 that has traditionally been adjudicatory and dealing with an 19 individual applicant.
20 COMMISSIONER AHERARNE:
When do they intend to be 21 going through that?
22 MS. MOE:
In the next few months.
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23 They have a proposed rule, which will probably be a 24 final rule in the next month or so.
WFederal Reporters, Inc.
25 MR. STOIBER:
The general issuer,in the~ hearing area O
16 31 14 1
-- and perhaps we might carry the discussion a little further 2
here -- seem to be about four in number, and those are listed 3
in the middle of our page EI-6, the question of whether I
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4 mandatory hearings should be eliminated at one or a number of 5
stages in the process; and the second issue, whether 6
non-adjudicatory hybrid or legislative hearings should be 7
introduced in the process; the third issue, whether or not 8
certain issues -- the right to relitigate or recontest certain 9
issues, which were or could have been raised in earlier 10 '
proceedings, should be limited; and then the fourth issue, Il allowing certain limited construction activities in advance-12 of hearings, and that is an issue that we addressed in a
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13 separate paper in response to a request from Commissioner 14 Gilinsky on interim licensing, which was submitted yesterday 15 also.
16 Those are generally the four issues that we see in:
17 the hearing area, and I am not sure how you want to go forward 18 with considering them.
19 MR. BICKWIT:
Probably since Marian has just gone 20 through this, probably the issue you ought to focus on is the 21 one to which this is relevant, which is what kind of procedure 22 do you want to use in your licensing hearings?
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23 We got into this by -- when that issue was raised, 24 and you wanted some response from us on the experience of other 4ce-Federal Reco,te,s, Inc.
25 agencies with hybrid procedures.
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CHAIRMAN HENDRIE:
Opinions?
2 COMMISSIONER AHEARNE:
To what extent can we utilize 3
hybrid proceedings now?
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MR. BICKWIT:
Unless you want to make use.of the 5
initial licensing exemption in the APA, which would almost 6
certainly be. challenged, not at all.
7 COMMISSIONER BRADFORD:
Except --
8 MR. BICKWIT:
That's right, but with respect to 9
licensing.
10 COMMISSIONER AHEARNE:
Except in rulemaking.
11 COMMISSIONER KENNEDY:
Rulemaking you can go either 12 with, whatever you want.
E' 13 COMMISSIONER BRADFORD:
Which has a way of getting
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14 back into licensing.
15 MR. BICKWIT:
Right.
Right.
16 COMMISSIONER AHEARNE:
Is the GESMO hearing the only 17 time that the agency tried to use the hybrid hearing?
18 COMMISSIONER BRADFORD:
S-3 had a provision that there 19 could be cross-examination.
The Board just denied in all the 20 cases it was asked for.
21 MR. MALSCH:
Also, I think the access clearance 22 rulemaking had some provision for requestion, I think.
23 COMMISSIONER GILINSKY:
GESMO, of course, didn't get 24 it.
Moderal Reporters, Inc.
25 COMMISSIONER AHEARNE:
The procedure had been
18
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established, so the agency doesn't really have any experience 1
in having actually used the hybrid hearing process in which the 2
cross-examination was allowed for part of the cases.
3 I
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MR. BICKWIT:
That's right.
COMMISSIONER AHEARNE:
But as far as the ability to s tl2 5
6 use it for rulemaking, it exists?
MR. BICKWIT.
Yes. Your question really is, do you 7
want the authority to use it for licensing?
8 COMMISSIONER AHEARNE:
I gather that -- at least one 9
10 '
of the issues that seemed to be very clear in the FTC's case 11 is the difficulty of putting out any kind of ground rules to be 12 able to separate these kinds of issue.
13 COMMISSIONER KENNEDY:
And also it, I assume, involves
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the reticence on the part of boards to make decisions of that 14 15 kind, ruling out participation lest the process which they are 16 overseeing is reversed.
17 COMMISSIONER BRADFORD:
Somehow our S-3 board got 18 around that, but you're certainly right.
19 COMMISSIONER KENNEDY:
I would think that would be sort of guiding principle, that they would inevitably tend to 20 lean towards saying if there's a question in their minds, 21
' resolve it in favo~r of cross-examination.
22
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23 MS. MOE:
That's exactly what they say has happened 24 at the FTC.
In fact, one sort of compromise they have ended up 4 -Feeeres Reportm, inc.
25 doing is allowing cross-examination and then saying only 20 9
19 1
minutes, and that way they spend less time arguing over' hether w
2 or not it's a material issue.
3 COMMISSIONER BRADFORD:
But that really turns out I
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badly,.I think.
What it does is put a premium on having a 5
witness who can answer at length.
6 MS. MOE:
They said that wasn't a great solution.
COMMISSIONER KENNEDY:
Or by having clever questioners 7
8 who sharpen a cuestion.--
9 COMMISSIONER BRADFORD:
No matter how you sharpen the 10 question, the witness, unless you instruct hbn to answer yes 11 or no, can just sit back.
12 COMMISSIONER AHEARNE:
Marian, but in your memo you
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13 mention there's no guidelines.
L 14 MS. MOE:
That's right.
Not only that, they mentioned 15 that having this double -- the second notice proposal doesn't 16 really help to narrow the issue that.much either. What they end 17 up with is a voluminous record without the issues clarified, so 18 that everybody wants to say something on everything, rather than 19 knowing which issues are the relevant ones that are going to be 20 the subject of the legislative portion of the hearing.
21 COMMISSIONER GILINSKY:
Did I understand you correctly 22 to say that they moved, in effect, from informal rulemaking to
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23 semi-formal?
24 MS. MOE:
Right.
Aes-Federal Reporters, Inc.
25 COMMISSIONER GILINSKY:
We would be moving the other
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way.
2 MS. MOE:
That's right, which I think is key.
3 COMMISSIONER AHEARNE:
They moved under pressure of 4
law, didn't they?
5 MS. MOE:
Yes.
6 COMMISSIONER GILINSKY:
But in terms of practice --
7 MR. BICKNIT:
Not in the case of EPA.
8 COMMISSIONER AHEARNE:
FTC.
9 MR. BICKNIT:
FTC, right.
10 COMMISSIONER GILINSKY:
So the effect would end up 11 being different here?
12 MS. MOE:
That's right.
That's one reason why I
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13 think it's going to be particularly relevant to watch what 14 happens under the Water Permit procedures, because those have 15 l traditionally been adjudicatory over what a company or whoever 16 is discharging water -- discharges pollutants in the water, 17 under what conditions they can do that.
18 MR. BICKWIT:
And also, on toxic substances.
19 COMMISSIONER GILINSKY:
Let me understand, what would 20 1 he achieved, what would be the objective of moving to this I
21 hybrid form of hearings?
Is it to shorten the actual number of 22 days of hearing?
Or is there something beyond that, because
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23 the number of days of hearing is really very small.
You're 24 talking about a handful -- you know, a few days, or two weeks, i
Wecfwel Reportets, Inc.
25 or something like that.
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CHAIRMAN HENDRIE:
Unless you come to New York.--
2 (Laughter.)
3 CHAIRMAN HENDRIE:
-- and join us in a joint proceed-I p
4 ing.
5 COMMISSIONER BRADFORD:
But then ycu wind up in the 6
state proceedings anyway.
7 CHAIRMAN HENDRIE:
Different proposition, just so.
8 COMMISSIONER GILINSKY:
Is the outcome somehow --
9 does this then affect the process beyond just the number of 10 '
days of hearing?
Does it end up --
11 MS. MOE:
I think those that advocate this in hearings 12 that have traditionally been adjudicatory feel that one of the 13 merits would be probably a speedier procedure.
And at some
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14 agencies that's important.
15 COMMISSIONER GILINSKY:
Speedier in terms of hearing 16 days, or speedier overal1?
17 MS. MOE:
Speedier in terms of hearin.g days.
I don't 18 think -- at least the way FTC is doing it -- it's necessarily -
19 speedier overall, because they have long lags over different 20 portions of the procedure.
21 But the.other goal that is usually discussed is try-22 ing to delineate which issues are policy issues,so that those
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23 can be decided by policymakers, and which issues are factual 24 disputes, so that cross-examination, which is more appropriate
~
m-Focerel Reporters, Inc.
25 for that type of issue, can be used -- only for that portion of 6
9 O
$1 20 22 1
the cuestion being discussed.
2 CHAIRMAN HENDRIE:
Did you say, and I missed it, or 3
didn't you say, when you get a couple of experts, engineer A, l
gs 4
engineer B, and their points of view may be different, but they 5
are not coming up from, you know, different civilizations, as 6
it were, their training is similar --
7 COMMISSIONER KENNEDY:
Just sound that way.
8 (Laughter.)
9 CHAIRMAN HENDRIE:
-- and one'of them says, "This 10 '
thing is good," and the other one, " Bad."
Now, is that 11 difference in expert opinion treated as a material fact' 12 difference, or -- that is, is that risk for the cross-examination
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13 route?
14 MS. MOE:
That is the key question, and I think there 15 are probably a lot.of cases where there wouldn't be a clear 16 answer -- if the data base the two persons were using, or if 17 the actual question of is there a fault line in this site or is 18 there not, that would be a clear factual question.
Whether two 19 other faults imply that there is a third fault would probably l
~
20 be a question of expert opinion, and that is in the hazy area.
21 CHAIRMAN HENDRIE:
Do you know what the Trade 22 Commission and EPA have done with resard to this kind of *
(F 23 dispute?
24 MS. MOE:
The response I got at the EPA was basically m4.oers Reporters. Inc.
25 that the panel generally asked such thorough and probing. -
jl 21 23 1
questions in areas where experts disagree, that parties of 2
both sides were satisfied that they couldr.'t have done anymore 3
if they had used direct cross-examination.
Therefore, all 4
those hazy areas were explored and there was no need for 5
direct cross-examination.
6 CRAIRMAN HENDRIE:
By George, I wonder if that view 7
was unanimously-held?
8 MS. MOE:
I did my best to din comeone at the EPA 9
who disagreed, and they all said, "You have to talk to this 10 '
one person; he's the one that know all about it."
1I CHAIRMAN HENDRIE:
I see.
12 COMMISSIONER BRADFORD:
The problem that these
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13 procedures are designed to get at, at least at the Federal 14 Trade Commission, is really quite different from anything we 15 face.
There the type of proceeding is something they have 88 16 peanut butter manufacturers in a proceeding, all of them 17 resisting a proposed rule on labeling, and from their point of 18 view, the longer they can put off that rule, the better.
So 19 they will cross-examine anybody at whatever length they can.
20 They will cross-examine each others witnesses; they 21 will cross-examine staff witnesses; and it goes on for years.
22 (Laughter.)
23 COMMISSIONER BRADFORD:
And their clients are quite 24 happy.
hFederal Reporters. Inc.
25 Everyone's nightmare is that intervenors can behave
$1 22 24 1
that way as well, but they really don't have the resources to 2
do it the way, say, gasoline refineries can, or other industri-3 al trade groups.
We are just no: dealing with the same level 4
of potential use --
5 CHAIRMAN HENDRIE:
It sounds like a massive argument 6
against intervenor funding, Peter.
7 COMMISSIONER BRADFORD:
It sounds like a good reason 8
toncontrol intervenors' funding.
9 (Laughter.)
10 1 MS, MOE:
In fact, another point that people at the 11 FTC made, more so than the EPA, was that some
. industries 12 regulated by the FTC are very threatened by the rulemaking
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13 Proceedings.-- you know, private vocational school's., several 14 schools could be wiped out if they were controlled the way the 15 FTC proposes to do.it; and they have. trade associations who 16 have fought them in every detail, in very litigative
- fashion, 17 so that there was very little real discussion of the issues.
18 It was just, you know, we're going to fight everything we can.
end 12 19 COMMISSIONER KENNEDY:
Constant skirmishing. - s-s 13 20 MS. MOE:
So that'.the whole atmosphere apparently has 21 been different for FTC and EPA the way it has been set up.
22 CHAIRMAN HENDRIE:
Well, let me make a comment, if
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23 nobody leaps into the breach.
Last year the Administration came 24 forward with a proposal and said, "Let's try hybrid.s.in
.cefa$eral Reporters, Inc.
25 environmental hearings, environmental issues."
And I
25 jl 2'3 I
supported it, with sort of a shrug, I guess.
They seemed like a nice bunch of fellows over there -- John's colleagues.
2 3
(Laughter.)
4 COMMISSIONER KENNEDY:
Might have been John himself.
5 COMMISSIONER AHEARNE:
I.'m glad you threw that in.
6 CHAIRMAN HENDRIE:
Well, I just sweep that -- brush across the trail there one or twice.
But I also did comment, 7
g it seems to me, that it wasn't so clear to me that from where we stand now in our proceedings that there was going to be any 9
10 - notable improvement in the efficiency by allowing the hybrid 11 format on the environmental side.
I could see considerable --
12 I guess everybody noted, and so on, could see considerable 13 difficulty in sorting out which were these issues that were
([
14 fair game for cross-examination and'which weren't.
And, you 15 know, what you end up possibly having, in essence, a full 16 adjudicatory hearing, except that you had preceded it by a
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17 legislative phase; and that seemed a possible configuration.
18 Most of the arguments in our hearings are between two 19 People who claim the right to be called experts.
20 MR. MALSCH:
Actually,about 80 percent of the hearing 21 is spent not in litigating issues, but in-one party finding out 22 what the basis was or what, in fact, the other party did.
k' Typically, cross-examination of the staff would be 80 percent:
23 24 What did you look at?
What did you consider?
What did you not WFederal Reporters, Inc.
25
_ consider? -- just in terms of ferreting out what the nature of
$1 24 26 1
the staff'a evaluation was; andonly 20 percent having establish-2 ed what it ras thatthe staff did, arguing over whether what the 3
staff did was correct or not.
And as to that remaining 20 per-I es 4
cent, usually it is a conflict in opinion as to whether this 5
evaluation model or that, or this extrapolation or that, is the 6
way to go.
7 M3. MOE:
Theoretically, that 80 percent -- of what 8
is the basis of your opinion -- could be done with a written 9
submission at the first part of the hearing, before the 10 legislative oral hearing is held.
11 COMMISSIONER KENNEDY:
And conceivably that could save 12 time, and at the same time, probably make the hearing a more
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13 efficient and effective one from all parties' point of view.
14 MR. MALSCH:
I would say our experience in licensing 15 cases would say that written submission -- they just.never work 16 out in actually getting all the details of what it was that the 17 staff did.
They take an enormous amount of effort -- to prepare 18 written responses.
Depositions would be great, but they are 19 expensive, and so intervenors never avail themselves of the 20 right to depose a staff memeber, 21 CHAIRMAN HENDRIE:
Just do it under --
22 MR. MALSCH:
Under the hearing.
k 23 CHAIRMAN HENDRIE: --- under cross-examination at the i
24
- hearing, neefseeral Reportgs, Inc.
25 COMMISSIONER AHEARNE:
Whereas, if there was funding
3 27 1
of the intervenor, perhaps they might choose deposition? -- - --
2 MR. MALSCH:
They might.
3 CHAIRMAN HENDRIE:
Or presumably would, in order to 4
have a basis to start frim in the hearings.
5 MR. MALSCH:
It would be to their advantage.
Deposi-6 tions are a lot less formal.
There are no rules of evidence 7
applied, strictly speaking.
8 COMMISSIONER GILINSKY:
Where is the expense involved?
9 MR. MALSCH:
You have to pay for the transcript; it's 10 the major expense.
That's very expensive,, to pay for a tran-11 script.
12 CHAIRMAN HENDRIE:
Let's see, the place I was getting
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13 was that although I supported the Administration proposition for 14 hybrids in the environmental side last year, I never felt it was 15 one of the great burning issues which I was prepared to mount 16 the barricades and die for.
And since it's potential productivI 17 ity, in the sense of a more' effective licensing process, is --
18 there~is some question about it -- we, after all, have run a 19 good many licensing hearing on an adjudicatory basis.
We have 20 the staff, counsel, and set of applicants, and the whole group 21 of Parties who appear and intervene and son on, who are all, in 22 effect, trained and shaken down in thatprocess; and I'm not sure k
Putting in a new one is going to do great things.
So, if two or 23 24 three of you want to rise up and proclaim your undying devotion kce-Federal Repo,ters. Inc.
25 to the cause of other forms of hearings, why I am prepared to
28 1
say, why don't we just, say, stick with adjudicatory hearings?
2 I will add.-- if I may, I would add that there is coming down 3
the track, a sort of a different -- not a different, but another I
/..
4 look at it, in the Ribicoff-Percy-Glenn bill.
And even though 5
I say, for purpose of legislative proposals of our own, why I'd 6.be willing to say, why don't I just give up, and let's not worry 7
about it.
If that one arrives, and it is proposed to send the 8
whole set of agencies over onto hybrid hearings and so on, I 9
think we are going to have to look at it again.
10 COMMISSIONER KENNEDY:
The thing I have always been 11 concerned about sinen the first time it was suggested, a long, 12 long time ago, was that you might wind up, if the objective was 13 to try to shorten the proce'as, whiic at the same time getting 14 the record and all the rest. that you need -- you might wind up, 15 in fact, lexigthening the process, to the extent that you actual-16 ly create a circumstance in which you get more court challenge; 17 and every time -- whether the challenge is upheld or not, the 18 fact thatioccurs delays the whole process.
. 19 MR. BICKWIT:
J2st one point that I thinkg ought to be 20 made is that if you want to stick with the adjudicatory process, 21 that you have to oppose e.he Ribicoff bill.
The Ribicoff bill 22 mandates an end to the adjudicatory process.
I 23 CHAIRMAN HENDRIE:
True.
But what I am saying is I 24 think, for myself, I am sort of -- it's not, as I say, one of het Reporters, tru:.
25 the great burning issues; and since I don't find a great e
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$1 27' 29 I
enthusiasm on this side of the table to go forward with hybrid 2
hearings, von know, which would such me along in its wake.
3 (Laughter.)
4 COMMISSIONER AHEARNE:
Preferably, actually out in 5
front.
6 (Laughter.)
7 CHAIRMAN HENDRIE:
You, know, I am prepared to say, 8
from the standpoint of our proposing legislation, why don't we 9
just not, because it's going to be a divisive issue, I think.
10 '
On the other hand, when they come down and ask us questions 11 about the bill the Senators haveproduced, why then I think I 12 would like to sit down and think about it again, because then 13 it is being done, not in the context of here the Nuclear 14 Regulatory Commission is proposing'to do some little piece of 15 its work, change from adjudicatory, but there is a government-16 wide proposition that regulators shall do licensing and other 17 things on the basis of this modified hearing format; and in that 18 context, I think it presents rather a different posture, to me.
.19 MR. BICKWIT:
I would say, if you are not clear which 20 way you want to go, and you want to leave yourself with the 21 option of going hybrid or adjudicatory, then you have really 22 got to get into therfray with respect to the Ribicoff bill and 23 oppose it.
24 COMMISSIONER AHEARNE:
But that's at the time when Ace-Feoers Reconm, Inc.
25 we -- at the moment, I think the point is that we can't see any
jl 23 30 i
very strong argaments to propose -- for us to be proposing this 2
change.
It doesn't necessarily mean that at the appropriate 3
time we conclude we must oppose somebody else's proposing it.
A 4
COMMISSIONER KENNEDY:
It has to be recalled that we
's 5
do have, clearly, the authority to proceed that way in ruling.
6 COMMISSIONER GILINSKY:
They're going to blow with 7
the wind.
8 (Laughter.)
9 MR. BICKWIT:
I get you.
10 COMMISSIONER BRADFORD:
- Joe, I. agree with.you.
11 COMMISSIONER AHEARNE:
Before Peter disappears, I 12 think the ground rule I would like to use myself on this, just
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13 as on all of these issues, is to understand why we should be 14 doing it -- why is it a good thing for us to be proposing it?
15 I don't find that here.
16 CHAIRMAN HENDRIE:
Okay, let's close.
e t13 17 (Whereupon, at 5:15 p.m.,
the hearing was adjourned.)
18 19 20 21 n
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