ML19305A266
| ML19305A266 | |
| Person / Time | |
|---|---|
| Issue date: | 02/16/1979 |
| From: | Ahearne J, Bradford P, Gilinsky V, Hendrie J, Kennedy R NRC COMMISSION (OCM) |
| To: | |
| References | |
| REF-10CFR9.7 NUDOCS 7903080604 | |
| Download: ML19305A266 (54) | |
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MUCLE AR REGiJLATO RY COMMISSIO N -
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IM THE MATTER OF:
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-BRIEFING'ON-NRC LEGISLATIVE PROPOSALS INCLUDING SITING & LICENSING
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.'AND OMNIBUS LEGISLATION n
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Ptace - Washington,~ D. C.
Date.
Friday,- 16' February.1979 Pages 1 - 54
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(OC'2) 347-37C0 ACE -FEDER.tL REPORTERS, E.*C.
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DISCLAIMER -
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This is an unofficial transcript of a meeting of the United States Nuclear Regulatory Commission held on 16 February 1979 in the Comissi.on's offices at 1717 H Street, ii. W., wasnington, D. C.
The meeting was open to public attendance and observation.
Tliis transcript has not been reviewed, corrected, or edited, and it may contain inaccuracies.
l
. The transcript is intended solely for general infoma'tfonal purposes.
As provided by 10 CFR 9.103, it is not part of the femal or infomal record of decision 'of the matters discussed.
Expressions of opinion in this transcript do not necessarily reflect final deteminations or beliefs.
- io pleading or other paper may be filed with the Comission in any proceeding as the result of or addres' sed to any statement or argument contained herein, except as the Comission may authorize.
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4
2 UNITED STATES OF AMERICA j
NUCLEAR REGULATORY COMMISSION 2
3 m
PUBLIC MEETING 4
BRIEFING ON NRC LEGISLATIVE PROPOSALS INCLUDING SITING & LICENSING S
AND OMNIBUS LEGISLATION 6
7 Room 1130 8
1717 H Street, N. W.
Washington, D.C.
9 10 Friday, 16 February 1979
~
The Commission met, pursuant to notice, at 9:15 a.m.
11 BEFORE:
12
(
13 DR. JOSEPH M. HENDRIE, Chairman 14 VICTOR GILINSKY, Commissioner 15 RICHARD T. KENNEDY, Commissioner 16 PETER S. BRADFOED, Commissioner 17 JOHN F. AHEARNE, Commissioner 18 ALSO PRESENT:
1 19 C. Stoiber, L. Bickwit, S. Trubatch, M. Malsch, and 20 S. Chilk.
21 22 7v 23 24 co-Federal Reporters, Inc.
I 25 l
CR 2764 3
WHITLOCK:
jwb 2/16/79 PROCEEDINGS 1
- 1 (9:15 a.m.)
2 3l CHAIRMAN HENDRIE:
Let us come to order and move I
i on with licensing legislation discussions.
I think we have 4
f und a way to deal with public meetings Friday mornings.
5 MR. STOIBER:
Perhaps while I am waiting for the 6
General Counsel to reascend, I could mention the development 7
yesterday which I have'already mentioned to some of you --
8 and that was, a call from OMB that indicated to me that the 9
10 l Department of Energy will resubmit its licensing proposal of last year in precisely the same form that it was resubmitted.
11 COMMISSIONER AHEARNE:
You mean the way it was 12 '
l, Presented?
13 MR. STOIBER:
Right.
And they were making the g
i i
I. calls to see whether various agencies would be prepared to l
15 i
quickly concur in that resubmission.
}
16 l
I brought it to their attention that we have a 17 process taking place over here that would not enable me to 18 I
give them that quick of a concurrence.
They said they would j9 l
20 i get back to me.
j i
i I want you all to be advised of that.
l 21 CHAIRMAN HENDRIE:
Who was it?
22 MR. STOIBER:
Jim Murr (phanetic).
23 yj CHAIRMAN HENDRIE:
I am surprised they aren't aware I Ace-Federal Recorrera, Inc.1 I
that we have been asked to crank ahead and see what we might 25 I
I
1-2 jwb 4
J 1
propose.
2 MR. MALSCH:
I bumped into sme oeople frcIn DCE in teach 4 ing my class last last, who gave me the same information and said 3
. '3 1
4 they did that because they didn't wcnt to go through another 5
elaborate clearance process, and so they simply relied upon 6
the prior clearances.
7 CHAIRMAN HENDRIE:
If I were them, that is what I 8
would do.
9 COMMISSIONER KENNEDY:
By sending it out, they 10 '
are not suggesting that they are going to fight and die for 11 it, but really only to get before the Congress something on 12 which the Congress then can begin to work its will.
I 13 NGL. MALSCH:
That's what it sounded like.
They 14 indicated they agreed some changes needed to be made, but they i
15 agreed they would do that later on af ter it had been submitted.,
i 16 COMMISSIONER KENNEDY:
They are taking the rational 17,
approach that if they don't submit something and get something ;
i 18 on a calendar, there isn't going to be any consideration of l
l 19 1 anything at all, a point which has been made here frequently l
20 'i in the past.
21 CHAIRMAN HENDRIE:
Let me suggest a Commission l
22 attitude.
It seems to me, since we are trying to prepare or i
l 23 decide whether we want to send up some legislative proposals 24 that we are not quite in a position to concur in the sense that Amfewei nnmn.n, inc !
25 l we think that the Administration bill represents whatever ought!
i l
1-3 jwb 5
h to be presented to the Congress.
We have other endeavors of 2
our own going on here.
3 On the other hand, it seems to me that it is fair 4
enough for the Administration to put its proposition into the 5
hopper.
6 I would propose that our attitude be one of (a) we 7
want OMB to know that we have a mandate from our Oversight Committees to at least consider possible legislative initia _..
8 9
tives, and we are attempting to do that, but that we have no i
10 '
objection to the Administration -- to DOE putting in the l
11 Administration bill -- not that, if we had any objection, it l
12 might make very much difference, anyway.
f) 13 But it seems to me that we wouldn' t have any --
14 COMMISSIONER BRADFORD:
Having specifically objected' L
15 to parts of the bil'1 on the last go-round, I guess if we sent 16 over that message I would like to indicate that I have indi-i 17 cated disagreements with parts of the bill before, and would I
18
.still hold those; but that I certainly don't feel that it is i
19 1 my position to object to it being sent to Congress.
l l
20 i That is really DOE's decision, the Executive I
21 Branch.
I 22 CHAIRMAN HENDRIE:
Fair enough.
i l
COMMISSIONER AHEARNE:
I guess I am not much 23 i
24 i different than Peter in that.
I would say that I note, 6m FMvM Rwornes. in l
25 without objection, if they wish to send the bill forward to l
il
1-4 jwb 6
Congress, that is certainly their right to do so; but not ch-I don't think, should be 2
jecting to it being sent doesn' t 3l interpreted to mean that either the Commission collegia 11y or w
i individuals do not take exception to part of it.
4 CHAIRMAN HENDRIE:
In particular, in saying no 5-objection, we do not imply -- it is a good idea to make it 6,
explicit that neither the Commission collegially nor individuali 7
Commissioners, in saying "no objection to sending it forward,"
8 l
are foregoing any critical comment or differing views on that 9
legislation of what they might want to present to the Congress l 10 l
j 11 later on.
12 I think that is fair enough.,
fT COMMISSIONER KENNEDY:
My impression of what you 13 had said was that we were not taking a position on the matter j
14 1
15 whatever.
All we were doing was saying:
If the Administration, i
wishes to submit its bill, we weren' t going to say they 16 1
shouldn't.
17 CHAIRMAN HENDRIE:
Exactly.
18 19 I COMMISSIONER AHEARNE:
I would want to go further l
20 !
than that, Dick, though.
Because -- at least normally, when I
l I am used to commenting on a piece of legislation, I have 21 22 always felt obligated, if I was going to object to it, I ought !
23 l to object -- make that objection known at that time.
l i
24,
If I don't object, then I ought to at least say i
Am-Fewal Rmorms, Inc. ;
25 l that if it comes up in Congress and I have to testify on it, I!
I i
I
1-5 jwb 7
I may object.
So they ought to at least know that at that 2
time.
3 CHAIRMAN HENDRIE:
My "no objection" proposal had in mind that that did not limit the Commissioners or Commission l 4
l 5
from whatever nature of comment they might want to make in l
6 the future.
7 MR. STOIBER:
I have no idea what other kinds of 8
comments OMB is getting from other agencies.
I would suspect i
9 that several agencies are going to say, "no, we don't want to i
i 1
10 ;
submit the bill in its identical form."
I 11 So I don't know what --
l 12 CHAIRMAN HENDRIE:
That is an exercise that the l
~,,
l 13 Administration can carry on for itself.
I think from our 14 side, well -- well, okay, it seems to me reasonable, a 15 reasonable proposition.
16 Actually, I might say, I think it is in fact useful.
l 17 for DOE to submit the bill if -- the Administration to submit i
18 it, if they can get themselves lined up over there.
It does i
19 1 put on the docket for discussion those things again that we l
20 '
were talking about last time.
l' 21 l We will see whether the congressional process 22 l1 results in legislation or doesn't.
It may, or it may not, but i
l 23 '
at least having that language once more on the scene puts 24 i those things into discussion.
-FMwM R wornrs, im. !
25 j COMMISSIONER BRADFORD:
But we are left, then, i
t 1
1-6 jwb 8
I telling them we aren't going to throw ourselves in front of 2
the bill between the Executive Branch and Congress, and I dll l
I 3I object to parts of it.
I 4
John may object to parts of it.
Richard, at least 5
historically, has objected to parts of it.
6 CHAIRMAN HENDRIE:
I think that is quite clear.
7 iIR. STOIBER:
If the Administrative agencies 8
begin to engage in a debate over what should be in a resubmit 9
ted proposal --
1 10 '
COMMISSIONER KENNEDY:
There won' t ever be one.
I I
11 mean, our own process is a clear enough indication of how that i 12 works.
It is impossible in this government today for three
~
13 people to agree on anything, even in Mexico.
It is just i
14 simply impossible.
15 The Administration has suddenly realized that, and 16 is trying to do something in the interest of at least providing 17 some work on which Congress can proceed.
And there is strong i
18 sentiment rather widely held, I am told, against any bill at i
19 1 all.
I l
20 I underline the word "any."
21 CHAIRMAN HENDRIE:
Could be.
COMMISSIONER KENNEDY:
Yes.
22 I would like to note now that we have had.an 23 expression of three individual views.
I will also have some.
24 CHAIRMAN HENDRIE: Nhy. dcn't we turn to the hearing section that Am.FewW Rmomn, Is,
i i
25 l we were in mid-stride on.
i i
i
1-7 jwb 9
s j
MR. STOIBER:
I believe we had arrived at the point 2
that we decided not to seek to alter the basic Commission 1
3i hearing format from the adjudicatory model to a hybrid or i
4 legislative model.
At least that is the proposal we would 5
make.
6 That leaves, I guess, the additional questions of l
l 7
relitigation issues, and whether mandatory hearings at some i
8 stage or another should be eliminated.
9 Those, being the other two fundamental hearing 10 ;
type issues that we had discussed in our paper.
i 11 COMMISSIONER AHEARNE:
Under " mandatory hearings,"
I i
12 the one you have under comment instruction, how would you j
'h 13 propose to do the determination of any person whose interests 14 may be affected?
Or is the proposal really to abandon i
i 15 l mandatory hearings unless requested?
16 !
MR. STOIBER:
I thought it was the latter more
'l 17 than the former.
Maybe Marty can answer.
i 18 MR. MALSCH:
It has always been the latter.
It i
19 l has always been any person.
l l
20 COMMISSIONER AHEARNE:
The words here are:
"any i
I 21 1 person whose interests may be affected."
22 IIR. MALSCH:
That is in the statute now.
That 23 i concept is being changed.
It is Just that you wouldn't call I
24 l the hearing if you abolished what is referred to as "manda-
- wwA Reorten, Inc. l 25 l tory hearings."
You would no longer hold hearings at the l
1-8 jwb 10 1
construction-permit stage when no interested person requested i
2 one.
I 3i COMMISSIONER AHEARNE:
All I am saying is I could l
i i
I
.4 understand clearly whether it would -- if the phrase were l
5 "you would hold a hearing only if someone requested it," but l
l 6
when you modified the "someone" by a phrase, I am not sure I
.i 7
understand what ground rules you are proposing to use to 3
define that modification.
9 How would you define "any person whose interest.
I r
10 ;
may be affected"?
I 11 CHAIRMAN HENDRIE:
You have to live within 50 miles i 12 of the site..
l 13 MR.'MALSCH:
That is in the statute now.
l i
14 COMMISSIONER AHEARNE:
I know it is, l
15,
What I am essentially asking is:
Was there any-16 thing further in mind?
Because, as I~ read the Licensing 17 Board and the Appeal Board in a recent case, it seems that 18 there is -- it is not completely clear how you define that.
l 19 1 MR. MALSCH:
There are some hazy areas, but it is l
20 !
nowhere, to my knowledge, intended by anyone in drafting the 21 DOE bill to in any way effect standing rules as currently i
22 practiced by the Agency.
I 23 !;
CHAIRMAN HENDRIE:
The standing rules are about all l'
24 '
you need for standing is --
Am-FewW Reorars inc. ;
25 j MR. MALSCH:
It is real easy.
l
1-9'jwb 11 1
COMMISSIONER AHEARNE:
It was not really meant in 2
Practice to reduce the number of people who might be able to 1
~
3 i request a hearing.
4 MR. b1ALSCH:
Absolutely not.
l 5
COMMISSIONER AHEARNE:
Then I move to the next 1
i question.
So it was only in practice, then, essentially to 6l 7'
eliminate hearings when not requested.
8 How many hearings would that tend to eliminate?-
l 9'
MR. MALSCH:
These days, not very many.
I don't 10,
have any statistics.
I think we may have developed some last l
1 11 year, but most hearings are contested.
We are only talking i
t ll 12 about construction-permit hearings.
Those are the only ones 13 that are mandatory.
I think most are contested -- about 80 14 percent, or so, maybe more.
15 COMMISSIONER AHEARNE:
What advantage -- what major 16 improvement, then, is going to occur by elimination of the i
17 mandatory hearings?
18 MR. IIALSCH:
I don't think it is a big deal either i
19 way.
In those few cases in which you presently have to hold a l
20 i hearing where you wouldn't under the bill, you would save in I
l 21 the process, the licensing process, six months.
22,[
. COMMISSIONER KENNEDY:
Six months is estimated to Ii 23 I; be what, in terms of the present value of money?
h 24 :
MR. MALSCH:
It is a lot, in terms of dollars, w Fewal Rmortets, lm.,
i 25 l COMMISSIONER KENNEDY:
Give a number, roughly.
l i
l
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12 1-10 jwb I
1
$100 million?
$200 million?
2 MR. MALSCH:
I don't know.
l l
3 i COMMISSIONER KENNEDY:
It's in that neighborhood, I
I I
isn't it?
4 5
MR, MALSCH:
It is millions of dollars.
COMMISSIONER KENNEDY:
Many tens of millions of 6
I dollars.
i 7
I CHAIRMAN HENDRIE:
It depends on the stage in the 8
9j process on what the expectation is, and what the project i
10 '
schedule is based on.
If it is out in the latter stages of I
t 11 the project, there is a lot of capital investment and people 12 are pressing hard to get the unit into operation.
And there, j
l 13 it can be very, very large.
14 At an earlier stage --
l 15 COMMISSIONER AHEARNE:
This is, by definition?
1 16 CHAIRMAN HENDRIE:
Yes, it is.
l 17 At an earlier stage, and if it has been accounted l
18 for in the project schedule, why it is a lower -- considerably,
i 19 lower --
l l
COMMISSIONER KENNEDY:
And a compound rate of 20 j i
21 10 percent, 6-months' interest.
l 22 CHAIRMAN HENDRIE:
That's right.
I COMMISSIONER KENNEDY:
Six months added to a 23 l 24 10- or 12-month period represents something on the order of i
Am-Fewal Repormn. Inc. l 25 l 100 percent increase in interest costs for whatever that l
i I
1-11 jwb.
13 I
j I
amount of investment is.
2 CHAIRMAN HENDRIE:
It rolls forward.
I 3
COMMISSIONER KENNEDY:
And that is tens of millions '
4 of dollars that finally comes out of the pocket of the rate-i i
1 5
payer who also is a taxpayer and a citizen.
6 COMMISSIONER AHEARNE:
Do we have a chart or l
I I
7 something which shows how many hearings would not have been i
8 held over the last, say, two years if this had been in place, 9'
a rough estimate of how much money could have been saved?
10,
MR. MALSCH:
I have seen statistics on how many i
11 hearings have been uncontested in the last couple of years.
I' 12 don't recall what they were.
I don't recall seeing dollar l
13 numbers or estimates of dollar savings or resources associated,
14 l with that.
There might have been, but I just don't recall.
15 COMMISSIONER AHEARNE:. The main benefit is the 16 l elimination of an unnecessary stretch of time?
Is that li s
17 l correct?
18 MR. MALSCH:
And the resources of the staff in 19 1 going to hearing, and the Licensing Board.
l 20 i COMMISSIONER AHEARNE:
It means that there is a l
l 21 resource expenditure on both sidec, on the staff as well as l
22 d the utility.
H
'l 23 L MR. MALSCH:
I don't think anyone who has attended 24 j uncontested construction permit hearings thinks that they are e-Foceral Reporters, Inc. l 25 ;
all that worthwhile.
l i
1-12 jwb 14 1
COMMISSIONER BRADFORD:
What actually goes on there?
i 2
MR. 11ALSCH :
There is no issue.
What it really I
i 3 !
amounts to is a pro forma presentation by the staff of the l
1 I
I 4
safety evaluation report, and a pro forma presentation by the l
l' 5
applicant of his presentation,,and any Board questions get 6
aired, and the limited appearances -- which is kind of useful, l 7 !
but --
8 COMMISSIONER BRADFORD:
I am wondering how one could!
end #1 9;
cue up six months.
You have notice, of course.
beg #2 10 ;
MR. MALSCH:
You have notice that there will be i
11 a prehearing conference in every case, just to schedule i
12 things.
The hearing will last a day oc two days or three days.l l
13 You have got to file protosed findinas, which takes some time to i
14,
write, a couple of weeks.
I I
15 The Board has to write a decision.
16.
COMMISSIONER BRADFOPD:
But even if there were no l
17 hearing, the Board would still have to write a decision?
Or 18 not? There would be no Board?
19 1 MR. MALSCH:
There would be no Beard.
The permit I
20 i wotild issue, as the operating license would issue, if there 21 were no hearing request is filed.
It would be issued bv the Staff.
COMMISSIONER AHEARNE:
How likely do you think a 22 ll t
23 l{l construction permit without any contesting would be?
I 24 !
MR. MALSCH:
There would still be some.
There are Macemi Reporters, Inc.
25 some areas of the country where citizens don't object strongly l
i i
2-13 jwb 15 to power plants.
1 i
IIR. STOIBER:
I would assume that the absence of 2f I
3i the mandatory hearing might call for interventions in cases 4l where there would not have been --
l 1
Sl MR. MALSCH:
I don't think people who would be i
6 tempted to intervene would be persuaded not to by virtue of I
i i
the fact that there is a Board alreadv apeointed, and raise -
7 CHAIRMAN HENDRIE:
Yes, I would think so.
i COMMISSIONER BRADFORD: Do people often ccrre to the j
8 9
hearing not as intervenors, but simply to make statements?
10 ;
MR. HALSCH:
Yes. That's quite common.
I 11 COMMISSIONER BRADFORD:
That would have no effect j
12 on uncontested statements?
13 MR. liALSCH:
Yes.
But of course that could be arranged, not under Board at$ spices.
The staff could hold a 14 f
15 i hearing to receive limited appearances.
You wouldn't need a 16 Board to do that, but that is very common. You might in an uncen-17 -
tested case, might eat up a whole day with just limited i
18 appearances.
19 l And then, under typical practice, the staff will 3
20,
be called upon by the Board to respond to limited appearances.
i 21 That is useful, and that takes some time.
COMMISSIONER BRADFORD:
I think Carl may be right.
22 q l
23 l What we would have would be those people who call up and say i
i 24 i "when is the hearing so we can make our limited appearance?"
w.eerei n corms, inc. l 25 :
They would be told, "There is no hearing because there are no i
i I
k
2-14 jwb 16 I
4 1
intervenors."
2l Are you suggesting the next step is for them to 3
say, "How in the world do I" --
4 MR. STOIBER:
I would think there might be --
l t
1 5
COMMISSIONER BRADFORD:
"I want to have a hearing, i
i I
6 so I can make my limited - "
l i
I 7 1 MR. STOIBER:
(Inaudible).
8 COMMISSIONER AHEARNE:
I guess my position would l
l 9i be that I would like to see a little table of the number of I
i i
10 '
uncontested hearings over the last two or three years, and l
11 just a rough estimate of money, resources to be saved if this 12 were eliminated.
But I don't think I basical'ly have any objection 13 i
14 to that provision.
15 COMMISSIONER BRADFORD:
I think I agree with that.
16 l I wonder if you could think a little about how one would go i
17 i about taking up the limited appearances.
18 COMMISSIONER KENNEDY:
Staff could make an 19 l announcement --
i l
20 COMMISSIONER BRADFORD:
-- of a meeting.
COMMISSIONER KENNEDY:
-- of a meeting.
21 1
22 CHAIRMAN HENDRIE:
Actually, we could do that i
1 23 i, administratively, b
24 i COMMISSIONER KENNEDY:
That's right.
There is some Ace-Feceral Reporters, Inc. l 25 j of that being done right now, in terms of our process, with i
i I
a
2-15 jwb 17 l
I staff going out for discussion with applicants.
I 2
MR. MALSCH:
That's right.
l In an open-forum arrangement ;l 3!
COMMISSIONER KENNEDY:
I 4
to get appearances, comments and. local participation.
It l
5 could be simply expanded.
i 6
MR. IIALSCH:
That would be easy to do.
In fact, 7
I have been to early meetings in which not just the applicant l
8 and staff showed up, but other people showed up who thought it l 9
was a hearing and wanted to say something.
i 10 ;
CHAIRMAN HENDRIE:
Okay.
You will dig up a 11 little data on that.
But for the moment, it looks as though l
12 the answer is "yes" to the question of:
Should we turn aside, l l
13 yes, should we give up mandator" hearings at the CP stage?
14 How much would it save?
I 15 !
MR. STOIBER:
The next issue, the relitigation l
16 question, is one of the most volatile I think discussed during i
17 thd last hearings.
And I think it is fair to say that it 18 was very difficult to draft a provision that sort of tread.the 19 l narrow line between infringing on what opportunities there I
20 i were for discussion of genuine concerns, yet preventing i
21 unnecessary repetition of issues.
22 j So this is an area in which we particularly need 0
1 23 Commission guidance.
24 hl COMMISSIONER AHEARNE:
Can you give me a rough Am-Federal Rerters, Inc, '
I 25 j estimate?
Is there some sort of an analysis of the number of I
4 ll
2-16 jwb 18 l
1 times that there was a relitigation, as you phrased it, of f
2l unnecessary issues?
l i
i 3
MR. STOIBER:
I don't recall any.
I have never l
4 seen anything like that.
l 5
COMMISSIONER AHEARNE:
That seems to be a suffi-l l
6.
ciently contentious area that, without having some analysis I
7' to make a foundation that here is a real problem that has 8
arisen and here is the number of cases and where it has arisen, 9
and if one were able to have this additional provision you I
i 10 ;
wouldn't have that -- I don't see how you can possibly 11 support it.
i 12 MR. IIALSCH:
One of the problems is that we don't l
1
/
13 Presently have any Commission-approved standardized designs.
i i
14 If we did have the Commission-approved design in a rule-making i i
I IS or manufacturing license proceeding, or whatever, you probably,
16 !
eliminate from litigation a huge chunk of safety issues that 17 would ordinarily be litigated.
18 Since we haven't got an approved design, it is i
19 l hard to estimate exactly what would be foreclosed.
We have i
1 20 i got no past history.
I I
21 l COMMISSIONER KENNEDY:
You are suggesting that in i
22 h fact the proposal is sort of an integral part of the 0
23 J standardized-design concept? _The standardized-design concept n
24 ;l is to have any of the benefits alleged --
i ra-sens smomn. ine.
25 i COMMISSIONER BRADFORD:
Why isn't the reverse true?
i l
0l
19 2-17 jwb.
I I
l l -
t With the S-3 table, for example, we don' t permit any reliti-i 2 i gation of that which was done through rule-making and generi-I i
3 cally approved.
l i
4l So if you had a standard design that had been i
approved in that way, at least under our current procedures, 5
you couldn't relitigate anything.
I 6'
i i
MR. MALSCH:
That's right, but we haven't got one 7
8 I of those.
l l
l 9!
COMMISSIONER BRADFORD:
All I am saying:
If, as l
10 long as we adhere to that set of practices, we don't need l
11 a legislative provision to prevent the relitigation.
j 12 COMMISSIONER GILINSKY:
It is trying to turn each 13 design into a standard design, isn't it?
l 1
14 MR. MALSCH:
That would have been one possible 15 effect of the Administration's bill; it didn't restrict relitigatica :
I 16 !
restrictions to just anoroved sites and desicrn.
We already have b
17 lI restrictions for relitigation if we rJprove the design under 18 rule-making.
You follow the same rules as S-3 or S-4.
He 19 l have a restriction on the standardized design approved in a i
I 20 i manufacturing license proceeding. That is written into our rules in i
21 II Appendix M.
I I
22 h We already have some restrictions in reraising site il suitability issues that have been given an early site review. That's in 23 24,
our regulations, also.
So there is a lot we can do already.
Ace. Federal Reporters, Inc.
25 j COMMISSIONER GILINSKY:
We went over this before, i
l
2-19 jwb 20 I
but it seems that this provision would turn every proceeding I
I i
2 ll into a rule-making, in effect.
j i
3 MR. MALSCH:
That was one way to read the Adminis-i 1
4 tration's bill.
i l
5 COMMISSIONER GILINSKY:
At least that is the t
6, broadest way to read it.
7 MR. MALSCH:
Yes.
l 8
COMMISSIONER KENNEDY:
But that was not what was
~
l 9
intended.
10,
MR. MALSCH:
I don't think so, but I am not sure 11 exactly what --
'l l
12 COMMISSIONER GILINSKY:
You are smiling, John.
l 13 COMMISSIONER AHEARNE:
I am just generally happy, I
14 that's all. "
15 (Laughter.)
i 16 l MR. MALSCH:
As I cay --
4, 17 COMMISSIONER KENNEDY:
Perhaps we can consult the 18 author.
Maybe f.e can tell us what was intended.
I 19 I COMMISSIONER AHEARNE:
He's not here.
20 !
CHAIRMAN HENDRIE:
I am trying to remember, now, I
i 21 l, what I did with -- the problem with the language that was D
22 i proposed, "no prior opportunity," was that it required -- well, tl l
1 23 ll that it left a very broad interpretation, impossible, and 24 '
people felt very uncomfortable with that.
A re mi n mo,m s.ix.l 25 l There were, it seemed to me, other ways to frame it
~
ll I
21 2-19 jwb l
which would make the limitation -- which would limit the I
1 2l proposition in the statutory language in a way which would --
I 3 i people would find clearer and be happier with.
l l
There never was any intent to prescribe bringing up, f 4
I 5
A at_a later stage in a project, any new information of l
6 significance.
l l
i And, that, B, issues which only ripened appropriately 7
at the later stage. But there was an attempt to say:
If on l
8 9j a given project we have argued about a particular point and f
i made a decision on it, the fact that we are having a later 10 ;
I 11 proceeding presumably at the operating-license proceeding, we i
l E
12 don't propose to go back and do precisely the same issue again h
~
to see if it comes out differently this time.
13 COMMISSIONER GILINSKY:
Could you give an example?
14 ;
15 l CHAIRMAN HENDRIE:
Yes.
People want to argue about i
16 l the question of alternative sites at the operating-license 17j stage.
18 COMMISSIONER KENNEDY:
I as ume they are large 19 l trucking manufacturers who have in mind roving the stuff -
1 I
(Laughter. )
20 l
' AIRMAN HENDRIE:
There are two categories under 21 22,l which such a proposition can come up.
One of them is a l
~23 l proposition that the determination with regard to alternative i
24 sites was improperly made at the initial stage.
Eo it raises LefewW Rucrnes Inc ',
25 j a question of error at the earlier stage.
I I
2-2.0 jwb 22 I
Okay?
Fair enough.
But there are -- but the i
i i
2 l' contention is also just raised anew, once in awhile, on the i
3l basis that in five or six years, or whatever, diat site A 4
construction has been underway, why it occurred to people l
5 that, gee, maybe up the river would be nice, or down the 6,
river, or around the bend.
l l
l 7l And people want to d.tscuss 2.t.
And here you have l
i I
8 the plant taider construction.
l i
t 9l It seems to-me that some sort of reasonable i
i 10 provision which says, "Look, if we are ever going to build i
II l
these plants in an orderly way, you need to come to certain 12 decision points on certain phases of the project.
And having 13 decided those, then they are decided."
I i
Id COMMISSIONER GILINSKY:
That sounds to me like 15 a special problen, and it seems to me reasonable to rule out i
16 [
alternative sites in operating license proceedings.
Il 17 l COMMISSIONER BRADFORD:
beyond that, is there 18 anything that would prevent us from publishing for comment a I
regulation tomorrow saying that alternative-site. issues are I
~~
'O COMMISSIONER GILINSKY<.
I would be for that, i
21 CHAIRMAN HENDRIE:
I wouldn't think so.
It seems l
22 to me well within the present administrative powers of the q
23 l Agency to move forward, in fact, on a rule-making that would 24 1 include that, and perhaps examine in some way establishing a
-Federal Recorters, Inc. l I
,5 !
hierarchy of legitimate issues as the project goes alc...; -- as i
i i
i 1
2-21 jwb 23 I
i-i 1
I say, always barring significant new information that effects j 2 l:
health and safety, and stuff like that.
i 3
COMMISSIONER GILINSKY:
Don't the Boards take i
4 account of previous decisions?
l 5
MR. 1IALSCH:
Not really; not if the parties are 6,
different.
I 7
MR. BICKWIT:
If the parties are the same, as you 8
said last time, it is already the policy non to (inaudible).
9 COMMISSIONER GILINSKY:
Previous r'11ings have no 10 ;
precedential value in these proceedings?
11 COMMISSIONER BRADFORD:
I would think that the l
12 forward cost rule \\(inaudible) that the Commission articulated would
?
13 pretty well take care of that as an issue.
I i
e 14 CNDISSIONER GILINSKY:
As far as the operating-15 l license alternatives?
16 MR. MALSCH:
Yes.
It suggests that you would l
17 l have a contention that would survive summary disposition in 18 the operating-license stage for alternative sites.
It r
19 !
doesn't'mean that you can raise it.
l 20 i COMMISSIONER AHEARNE:
It means the amount of time i
21 that is spent on it would be severely limited.
22,
CHAIRMAN HENDRIE:
And if ceople also want to a
li 23 ]
raise the need for power question, et the operating-license d
24 y stage ; that is a common contention in an operating-license Ace-Federal Reporters, Inc.
25 :
proceeding, I think.
And there is an appropriate time for 2
i D
2-22 jwb 24 I-I I
need for power when ycu are considering whether you are going l
li 2 l!
to build anything.
i 3
But once you have the power plant built --
I l
I 4'
COMMISSIONER GILINSKY:
Can't we deal witla that i
5 one, also, on our own?
i I
6, CHAIRMAN HENDRIE:
Of course.
Are we willing to?
i 7
MR. MALSCH:
That is trickier.
There you could 8j make a case for not operating a nuclear plant, but operati7g l
1 9l another plant that has already been constructed, because of 10,
(inaudible).
11 COMMISSIONER KENNEDY:
The argument is:. the nuclear; 12 power plant having been constructed, and the rate of increase in 13 power demand having slackened from that which was predicted at i 14 the original construction authorization over a 10-year period, 15 in fact now the issue is, which plant should not be operated?
16 ll MR. MALSCH:
Right.
i 17 f COMMISSIONER KENNEDY:
And the conclusion tends to 18 be, "the new plant."
The argument is, "No, you don't have to I
19 1 operate the new plant."
And the argument would be made by l
20 l those -- well, I can visualize a variety of motivations for 21 l; the argument, any one of which could have merit, it being a ll 22 h sort of make-or-buy decision at that point, not at all under c
end #2 23 the real environmental questions.
24 ll w-FMud Rwomn, in. '
2S i I
i 1
1 h.
9 25 64.03.1 ov i
COMMISSIONER GILINSKf It seems to me tha t it is 2
odd to be proposing to the Congress that they do things that we 3
could do on our own.
If we are in favor of it, we could do it, 4
and, if not, oppose it.
COMMISSIONER KENNEDY:
There is another view of 5
6 that, which I won't argue for.
I will s imp 1v state -- and that 7
is that administrative agencies are not and ought not to be in 3
the policymaking businessi that is, the broad policymaking to 'e making policies that are within 9
bus ine ss.
They ought o
10 their implementation charters as outlined by the Congress and
.11 that administrative agencies have historically taken more unto 12 themselves in terms of the regulatory and rulemaking process, 13 rule-establishing proce ss, than was ever intended.
14 As I say, I am n.ot going to argue that propos ition,.
15 I am simply stating it because I think it does have some merit.
16 So, the question really comes down to Where do you 17 think -- and I gue ss that is a matter of sort of philosophy of 13 government -
- ahere do you think an agency ought to stop and 19 say, "Yes, we.think that is the right thing to do, and, ind eed.
20 we probably could, within a broad view of our charter, issue a 21 rule and it might not be cha.11enged."
22 On the,other hand, it is the kind of thing which is 23 of a broad policy character, a character beyond really the 24 scope of our administrative rule of reason and, the re fo re, is 25 something that constitutionally ought to be exercised by the
26 64.03.2 pv i
Congress.
2 COMMISSIONER GILINSKY:
That is a good 3
COMMISSIONER BRADFORD:
That is (inaudible).
4 COMMISSIONER KENNEDY:
Of course, it is, in part.
5 The agency should never have been handed the job which it is 5
incapable of doing; but that is another question which we could 7
discuss at length.
3 COMMI5SIONER GILINSKY:
I wouldn't think 9
adnissibility of alternative-site questions in operating 10 license
.11 CHAIRMAN HENDRIE:
Or establishment of some 12 reasonable hierarchy of issues and what they -- ought to be 13 co ns ide red.
That one, I think, really is well within the 14 agency's --
15 MR. SICK 4IT:
You have already said that to some 16 degree it is 'within the agency's power, by adopting the 17 prohibition on the individual.
13 Co?MISSIONER KENNEDY:
My comment there, as I think 19 Victor's was, was in the context of this need-for-power 20 question, which is really a question beyond "in part."
One 21 could argue, I think, beyond "in part" the age ncy's 22 responsibilities, anyway.
23 CHAIRMAN HENDRIE:
Whether ne.ed-for-power is best 24 considered here at all, that is.
25 COMMISSIONER KEMNEDY:
Yes.
27 64.03.3 pv i
CHAIRMAN HENDRIE As long as it is to be considered 2
here under present court rulings and the traditional practice.
3 I think we could legitimately decide what, if any, limitations 4
on later litigation over need-for-power are acoropriate.
5 COMMISSIONER KENNEDY:
I guess that is right.
As a 6
matter of f act, the more rules of that kind that we were to 7
aoply, the nore likely the ultimate question of whether this is 8
the right place to be making that kind of a decision.
9 MR. MALSCH:
de already have out for comment a staff 10 NUREG document raising this as a poss ible subject for 11 rulemakingt namely, narrowing down the scope of the dEPA review 12 at the operating license stage, so as to limit litigation on 13 alternative site and need-for-power.
14 CHAIRMAN HENDRIE:
If you are in a trading mood. I 15 will give up discussion of the limitation orovision in the 16 legislation if we can agree that we ought to move ahead and 17 examine proposals for rulemaking.
It would establish in the 13 Conmission's rules some reasonable ordering of these things in 19 the sense that trying to sort out which things are acpropriate 20 to be decided at the construction permit stage, and which --
21 that ought to be the decision thus made ought to oe accorded 22 very substantial weight, and the threshold for challenge at a 23 later time af ter the plan to construct --
24 COMMISSIONER AHEARNE:
I tnink that is something 25 that is couched as a reasonable and accropriate
28 64.03.4 pv i
COMMISSIJNER KENNEDY In this outfit, easily.
2 (Laughter.)
3 CHAIRMAN HENDRIE:
Let me just say that I 4
contemplated but did not make a similar proposition last year.
5 COMMISSIONER AHEARNE:
I would certainly sucport 6
that.
7 CHAIRMAN HENDRIE:
There are some advantages to it.
3 because an agency rule in the proceeding that goes in+ o that.
9 you can hack away at a whole assortment of details, and an 10 agency rule can't say as much as you need to say for it to be
.Il fairly speciflc and sketch out both the limitations and the 12 a ppl ica tions.
13 If you are dealing with statutes, you inevitably end 14 up with.a much more summary -- broad summary statement.
It is 15 harder to define the distinctions.
You end up having to try to 16 spell it out in the legislative history in terms of letters and 17 conferences.
13 COMMISSIONER GILINSKY:
de know how tricky that is.
19 MR. STOISER:
You also get all of the lawyers 20 involved in it, and you give them an issue that they think they 21 understand, a n d --
22 COMMISSIONER AHEARNE:
I hope the record tace 23 clearly indentifies who was soeaking at that time.
24 COM4ISSIONER RRADFORD:
I was aoout to suggest --
25 (Simultaneous discussion. )
COMMISSIONER BRADFORD:
-- one of the Staff members.
29 64.03.5 pv 1
MR. BICK.flT:
I might disagree with that statement.
2 CO MMISSIONER GILIN5KY:
You can o at it e piece at 3
a time.
4 COM14ISSIONER BRADFORD:
At least one critical 5
(inaudible) was (inaddible).
6 (Laughter.)
7 CHAIRMAN HENDRIE:
dould somebody go ahead and cour 3
the tea water?
9 COMMISSIONER AHEARNE:
Is that it on hearings?
10 MR. STOI3ER:
I think that's it.
11 CHAIRMAN HENDRIE:
On VI, page 7, there is a thing 12 called "I ssues," and it runs on for -- on the next page.
We 13 have covered the f,irst one.
The second, I don't know whether 14 one wants to talk here about the hearing format for acprovals 15 of standardized cesigns.
16 Co'tMISSIONER KENNEDY:
I had one cuestion reflecting 17 ucon our recollection of our last discussion on this matter.
13 Does counsel f eel it has sufficient guidance to draft 19 something?
20 MR. BICKdIT:
Upon what?
21 COMMISSIONER KENNEDY:
Upon the hearing question.
22 MR. STOISER:
On the adjudicatory versus 23 legislative. I thought the conclusion was that we would not 24 propose anything.
25 14R. SICKdIT:
I can draft tnat f airly easily.
30 64.03.6 ov i
COVMI SSIONER KENNEDY:
And?
2 COMMISSIONER GILINSKY:
I knew you had it in you.
3 Karl.
4
( Laughte r. )
5 CHAIRMAN HENDRIE:
Once you get him turned around, 6
lined up in the right way, he goes pretty good.
7 MR. MALSCH:
I guess there is one cuestian that tne S
b ill, in a sense, tightened up on hearing procedures by calling 9
on-the-record hearings for aoproving desicn by rulet whereas 10 current 1v in hearing you could have aoproved a design by 11
' hearing without opening a formal hearing.
12 COMMISSIONER GILINSKY:
'I think it would be odd to 13 acprove a design that you could use in a number of proceedings 14 with --
15 MR. MALSCH:
Me did that on some issues.
We didn't 16 hold them on the re cord hearing on the S-3 rule.
If we had not 17 had a rule, that would have been litigated on the on-the-record
!S basis.
The ouestion is how f ar you want to go.
19 CO MMISSIONER GILINSKY This seems so fundamental.
20 and it is so sweepingt it covers so much.
I would think it 21 ought to have at least the leaal trappings of the normal 22 proceedings.
~
23 COMAI SSIONER AHEAR.!E:
Can't we do that?
24
- 4R. BICK.iIT:
l'he normal ao judicatory proc eedings.
25 COMMIS3IONER AHEARNE:
We can do that.
~
31 764.03.7 pv i
COMMISSIONER GILIN3KY:
I think it ought to ce 2
written in.
3 MR. BICKdIT:
It ought to be required.
4 COMMISSIONER GILINSKY:
It ought to be recuired, 5
yes.
6 COMMISSIONER KEPTHEDY:
It we can do it, why need it 7
be legislated?
3 COMMISSIONER GILINSKY:
I think it ought to be 9
recuired.
You know, four of us agree.
10 COMMISSIONER KE NNEDY:
I am only asking here -- and 11 I am not necessarily disagreeing with your premise -- what I am 12 trying to figure out is the logic by which we are proceeding, 13 if there is anyt and up to now many things which we all thought 14 were good sound reasonable -- indeed, desirable -- and ought to 15 be done, we said, "3ut you don't need to legislate that.
We 16 did that by rule."
Here, if it can ce done by rule, why do we 17 legislate it?
IS COMMISSIONER GILINSKY:
Because I wouldn't like to 19 see future commissions use that freedom to --
20 COMMISSIONER KENNEDYi If that is the logic, we 21 ought to go back to the beginning because there are e whole lot 22 of other things.
23 COMMISSIONER GILINSKY:
That is the beginning of my 24 view.
25 COMMISSIONER KENNEJY:
I didn't know the logic on
32
~
64.03.8 ov i
which we were proceeding.
I thought we we re proceeding under 2
John's logic.
3 COMMI SSIONER GILINSKY:
I don't think it is 4
inconsistent.
5 COMMISSIONER KENNEDY:
It is incons.istent with my 6
viaw because I don't think the Lord put me here to produce an 7
CHAIRMAN HE:IDRIE:
Th en yo u s ugge s t
~
3 COMMISSIONER KENNEDY: -- immutable set of rules.
9 CHAIRMAN HENDRIE:
Then you suggest that if I think 10 it is appropriate that there ce some sort of limitation on 11 rehearing of items in the same project, that it is all right 12 for me to sa y, "Well, let's make that a rule, and future 13 commissions can crank it around, but" 14 COMi4ISSIONER GILINSKY:
There is no ouestion the 15 statute has Fore force to it than regulation.
There is a 16 spectrum here.
You have to decide just how fir ly each of 17 these things is going to get nailed down.
13 I would say that on the cuestion of admissioility of 19 issues, that that is a matter that can be dealt with by the 20 Commission.
I think there are a lot of details involved that 21 can be better dealt with, as the Chairman cointed out, by 22 Connission regulation than by statute.
Here, I think. there 23 is, at least fron my point of view, there is a fundamental 24 point involved, I think, which ought to get nailed down.
25 COMMISSIONER AHEAR.iE:
Can I ask a similar kind of
33 54.33./
av i
question?
2 CHAIRMAN HEilDRIE:
I don't firid it that fundamental.
3 I would say.
l 4
COMMISSIONER AdEARilE:
How many cases have you seen 5
whe re this kind of f undamental question has not been addressed 6
by the Commission in a process a formal process?
7 COMMISSIONER GILINSK(*
I am so rry. I guess I don't 3
u derstand.
n 9
COM'.fI SSIONER AHEARNE:
The issue here is to try 10 to --
11 COMMISSIONER KENNEDY:
~.1e ha v e --
12 CHAIRMAN HENORIE:
Ne have never -
13 CohWISSIONER KENNEDY:
The wisdom presented before 14 you he re at the table is no longer available, and another group 15 of lesser human beings --
15 CEAIRMAN HENDRIE:
I think he was referring to me.
17 COMMISSIONER KENNEDY:
I think it is far, far off 13 into the future somewhere.
19 COMMISSIONER GILINSKY:
You wouldn't be here to 20 defend the sanctity of such an adjudicatory proceeding.
21 (Laughter.)
22 (Simultaneous discussion.)
23 CO VMISSIONER GILINSKY:
That is exactly what I had 24 in mind.
25
( Laugnte r. )
34 64.03.10 pv i
CHAIRMAN HENDRIE:
I knew it.
2 (Laughter.)
3 COMMISSIONER GILINSKY:
It seems to be a fundamental 4
point that you are going to -- you are talking about 5
proceedings in which you aoprove a design which could be used 6
for, say, 20 reactors, in orinciple.
7 COMMISSIONER KENNEDY:
I happen to belie ve there 8
ought to be a hearing.
That is not the issue.
I said that 9
before.
I always believed that.
That is not the issue here.
10 The issue now is one of the logic on which this 11 entire proceeding that we have been going through here is 12 based.
I am trying to find out what that is.
I thought from 13 the outset we had a lengthy debate, several days' duration, as 14 to what whether what we were trying to do was find out what 15 would be nice to legislate or what was necessary to legislate.
16 We finally concluded -- and I only reluctantly, I might add, as 17 the tapes will undoubtedly show someday. reluctantly said --
18 "Okay, even though I believe it would be pre ferable in many 19 cases to legislate, I will be guided by the general consensus 20 that arises here that we ought to confine ourselves to those 21 things because the Congress is so busy."
22 And we do have all of these authorities ourselves.
23 We ought to exercise them.
We ought to confine ourselves in
~
24 our 1egislative proposals to those things which must be 25 legislated.
35 64.03.I1 ov 1
Now, we are all the way back where I was in the 2
beginning, and, as I say, I am losing the log ic.
I want to go 3
back and reexamine the whole damned busine.ss over again.
4 COMMISSI0t4ER GILItLiKY:
Th is is all going to get 5
covered in a Ph.D. thesis someday.
nd*3 6
( La ughte r. )
7 8
9 10
.11 12 13 14 16 16 17 18 19 20 21 22 23 24 25
R 2764' THITLOCK 36
-4 mte'l 1
COMMISSIONER GILINSKY:
We could, I suppose, adopt 2
a rule that said that.
i COMMISSIONER KENNEDY:
There is no cuestion about it. l 3l 4
COMMISSIONER GILINSKY:
I suppose in that same 5
trading spirit, if we were to adopt a rule or agree to adopt a 6
rule, I guess that 'could be satisfactory.
7 COMMISSIONER KENNEDY:
I do not wish to have us on 8
the. record in a way which suggests that the whole philosophy I
9 of our draf ting in thi' enterprise right here is those things i
i 10 I in which we do not wish any flexibility to be allowed to our l
11 successors in some futare time, we will insis t upon legislation,!
12 and those things which we would wish to have all of the flexibi-13 lities which we ourselves would like to have, we will not.
I 14 don't think that is the kind of logic which I could subscribe I
15 to as a basis for whatever proposals we put forward underlying 16 the logic.
That is what troubles me here.
That is the only l
i 17 thing that troubles me,
i i
l 18 The point about the hearing question, there isn't 19 any cpestion in my mind there ought to be a hearing.
But we havd 20 already said, if we can do it by rule, that is what we ought 21 to do, and I an esserting that is what we ought to do.
l f
22 COMMISSIONER GILINSKY:
Is there agreement that thos e i i
23 hearings ought to be adjudicatory hearings?
l 24 COMMISSIONER AHEARNE:
Of cours e.
co Federal Reporters, Inc.
25 COMMISSIONER KENNEDY:
Sure.
I i
i
37 l to 2 1
CHAIRMAN HEUDRIE:
Fine.
Let's do that.
~
l 2
COff!ISSIONER HENDRIE:
I agree that the proposition --
3l I agreed with it last year and supported it and so on.
So, I
4 with the added comment that we need to look for a way in the 5
language to make it clear that what we are talking about are 6
standard designs which would be approved and then would be 7
used down the line, so dhat what we are talking about is doing 8
on a generic basis an adjudicatory establishment of a particular l
9 design, and that is to replace the adjudication in a whole f
I 10 i series of individual applicetions, under a series of applica-l 11 tio ns, the same design.
l 12 Nhat I am looking for is a way that the language, 13 the description., reflects that and avoid carrying this require-14 ment for adiudicatory proceedings over into what I will call l
l 15 o her but adjacent areas of possible rulemaking.
i 16 COMMISSIONER GILINSKY:
A sweeping rule.
f i
17 CHAIRMAN HENDRIE:
Just so.
i 18 COMMISSIONER GILIUSKY:
I agree with that.
l l
19 CHAIRMAN HE11DRIE:
In other areas, I think you war' l
20 the flexibility to adjust the proceeding, yes.
I I
21 COMMISSIONER GILINSKY:
My thought here isn't even 22 'j to nail down the adjudicatory nature of these proceedings, but l
l 23 to have them be no less adjudicatory, if I can use that, than 24 the proceedings they replace.
co-Federsi Rooorters, Inc.
25 COMMISSIONER KENNEDY:
I agree with that.
I absolutely l
l
,nte 3 38 I
agree with it.
2 COli!!ISSIONER GILINSKY:
Whatever the nature of those l 3
is.
4 CO!!MISSIONER KENNEDY:
It seems that logical is 5
inescap able.
If in fact that makes sense, regardless of how 6
one comes out there, the fact is that is the way it is.
If it i
7 makes sense to have an adjudicatory hearing for a particular i
I 8
plant, a particular plant design, it seems to me an inescapable !
9 conclusion that if youare going to have a design which is going; i
1 10 I to be applicable to a dozen plants, it ought to be, you know, I
11 so there is no cuestion about that.
l i
12 COMZiISSIONER GILINSKY:
If we are agreeing we are l
13 going to do it, then let's not put it in the legislation.
I 14 agree with you.
15 COMMISSIONER KENNEDY:
Okay, we are agreed that it i
16 ought to be an adjudicatory proceeding.
l t
17 COM?iISSIONER AHEARNE:
Right.
l 18 COfiliISSIONER KENNEDY:
No less so than the present l
t 19 ones for individual plants, and the rule ought to make that 20 clear a. ". the rule ought to be specific enough diat it does not ;
21 then run off into all kinds of other daings, but is addressed l
l 22 to this particular situation.
And with that, then we don ' t 23 need legislation.
24 MR. BICKNIT:
I would point out that is a very a4WwW Reornn. im--
i 25 logical proposition you put forward, but it is a proposition l
i
39 te 4 3
1 that is violated throughout adninistrative law.
The minute 2
you get generic -- (inaudible).
3l That is not to say that what you say isn't totally I
logical.
4 CO!2tISSIONER KEUUEDY:
The point of the adjudication l 5
is to adjudicate it once.
6 COMMISSIONER GILINSKY:
I think we violate it in 7
dealing with specific issues.
But this takes in so much and I
l 8
replaces such a large part of the --
9 C012iISSIONER AHEARNE:
i i
10 !
COMMISSIONER IG:NNEDY:
I agree with that, of course. l l
11 COMMISSIONER GILINSKY:
It really is a different i
i 12 thing.
13 COMMISSIONER KENNEDY:
It is for that reas' n I think o
14 we were all agreeing that when we are talking about this rule
'i 15 which somebody shall draf t, it should be specific and it ought 16 not to have a generic application, but rather, he applied to j
17 thia specific situation so that we don:t wind up with a circum-l l
18 stance in which we say all rulenaking ought to be adjudicatory, j l
19 because I don 't agree with that.
I don ' t think it is necessary, 20 nor desirable.
i l
21 CHAIRMAN HENDRIE:
Sort of a comment as to where this l l
22 might fit down the line in a rulemaking context.
You know, we !
23 have finally, a few months ago, enunciated a further, more I
i 24 detailed policy statement on the Commission's s tandardization m#ewd Reorurs, lm
{
25 '
policy, the last in a line of several policy statements that l
a i
.te.5 40!.
i 1
have established the policy and guided it and so on.
It is 2
possible that we might want to contemplate going from the l
l 3I policy statement format into a rule format at some point to I
4 establish these concepts of PDAs.
And then if sonebody wanted 5
to take them to a rule, the FDA-l 's and 2 's and the SDA and 6
how people would take them into rule form, and in ~that context, 7
and you might -- that would be a very logical place to deal 8
with what the hearing requirements would be for that proposi-9 tion.
Or you could deal with it separately.
l 10 But I have a notion that as you started to try to do I
11 some rulemaking on the subject, yon v:ould feel a need to provide i
12 a context in which you are going 2o talk about the hearing for 13 this specialized animal, and that context could very well be I
14 setting down some of the things that we have pretty well agreedl 15 on in the policy statenent that I think are going to guide the 16 policy for some years to come, i
17 Okay, that settles number 3.
l 18 Number 4, we said, no, let 's not haggle with it.
I 19 ciumber 5, rulemaking.
20 Issue number 6 was where an application utilizes 21 both a pre-approved design and a pre-approved site, should it l
22 be possible for operation to begin without a hearing ever having i
23 been held, even though a hearing has been requested.
i 24 COMMISSIONER KENNEDY:
What --
a-FewW Reorwes. inc.
25 l MR. STOIBER:
(Inaudible) interim licensing.
te 6 41 1
COMMISSIONER KENNEDY:
Okay.
2 CHAIRMAN HENDRIE:
Was that intended to be interim 3l licensing?
It is an odd phrasing, I mus t say.
4 COMiISSIONER KENNEDY:
I was going to ask, where was 5
this in the previous bill?
Was that seen to be a likely I
6 result?
l 7
MR. STOIBER:
I think that was in the CP, OL.
I 8
MR. MALSCH:
No.
Let me see if I can find it.
l I
9 CHAIRMAN IIENDRIE:
And why?
i 10 !
MR. MALSCH:
I think it was in the early site section4 l
It seems to roll up several propo-l 11 CHAIR!!AN HENDRIE:
12 sitions together, and there are a series of things that,
13 configucations that, if we could talk about under this general 14 subject -- but the particu1ar question as posed here is sort
~
f I
15 o f a musl. o f s everal.
i 16 MR. ?fALSCH:
There.re separate sections in the DOE l
17 bill dealing, one, with interim issuance of operating licenses l-18 and operating license amendments on the one hand.
l 19 CHAIRMAN H ENDRIE:
That is not this.
i 20 MR. MALSCH:
Right, and then there is a sepr. rate 1
21 section in the early site review section, which is Section 193(e) 22 that says an applicant for a construction permit or combined i
23 CP and OL to be located on a pre-approved site may, upon certain 24 no tice, commence site construction.
l Amfewd Reorun,lm l
25 CHAIRMAN HENDRIE:
But this thing says, should interim l
to 7 42 I
operation be permitted in advance of any required hearings --
2 no, I'm sorry.
Should it be possible for operation to begin l
3 without a hearing ever having been held.
4 MR. MALSCH:
That is in the operating license 5
section.
6 COMMISSIONER KENNEDY:
Without ever-having been held.!
l 7
It' seers to ne that it was combining the interin operating l
t 8
cuestion on the one hand and the combined CP, OL without hearing i
I 9
on the other hand.
That is what I thought this meant.
I i
10 1 didn't recollect us ever discussing anything as sweeping as l
11 that.
l 12 COMMISSIONER AHEARNE:
'That is the right solution.
13 CHAIRMAN HENDRIE:
I have a notion that the way to l
i 14 deal with. it is to draw lines through issue nudber 6 on page l
15 Roman VI-8.
There are a series of -- as I say, there are a 16 series of configurations that you would like to discuss and i
17 know what we ought to co.
But this doesn 't lay out any parti-i 18 cular one or a whole group.
19 Peter, when do you have to --
20 COMMISSIONER BRADFORD:
About another ten minutes.
21 CHAIRMAN HEUDRIE:
You have to go pretty cuick.
Why l 22 don't we pick up the interim operat.on, or at least s tart the 23 interim operation item?
There is a separate piece of paper we i
24 got forwarded, dated February 13 th.
l m-Fund Rnomn, lmL i
25 (Paus e. )
i i
nte 8 43 I 1
I am going to issue a rule on the placement of paper i
2 clips in the papers I get.
As each new paper is put on the 3
top, well, the clips march steadily toward the center of the I
4 page, so that when you get it you can only open and see about 5
the bottom third of the underlying pages.
6 COMMISSIONER KENNEDY:
Moreover, to get them out 7
takes all your fing0rnails or a major chewing exercise.
8 (Lauchter.)
9 CHAIRMAU HENDRIE:
The interin provision.
The I
i 10 !
Administration bill had an interim licensing provision in it, l
11 as I remember it, and so did the one the Commission drafted l
12 back in the fall of ' 77.
Has anybody read them recently
~.
13 enough to know how close they are?
14 MR. MALSCH: They are very close.
I 15 MR. STOIBER:
I think we say on page 13-3 that the i
16 NRC bill is virtually identical to H.R. 1174.
However, the I
i 17 one difference being that whether the proposed action was i
18 necessary would be held on reauest rather than being mandatory, i
19 the hearing on whether the proposed action is necessary would 20 be held at reauest rather. than being mandatory.
21 COMMISSIONER GILINSKY:
The Administration bill?
22 MR. STOIBER:
Yes.
23 MR. MALSCH: (Inaudible) provide for elimination of 24 hearings on the safety issues.
l Weserse Reconm, Inc.
l 25 MR. STOIBER:
(Inaudible) prepared this and I cannot --
l 1
I mte 9 44!-
I
!!R. MALSCH:
The Administrative bill, there is one 2
change.
On issuance of an interim operating license, it only l
3l l
allowed for dispensing with NEPA hearings, but not Atomic Energy 4
Act safety hearings.
5 CHAIRfRN HENDRIE:
I thought I remerbered something 6
like that, too.
The intent of the provision was not to --
l 7
COffiISSIONER GILINSKY:
In any case, it had this 8
energency public need hearing before the Commission and all 9
diat sort of stuff.
10 fin. MALSCH:
Yes.
j II CO!21ISSIONER AHEARNE:
Since it was then in the Can-l 12 mission's (inaudible),could I have a shcrt list of. the cases where
~
13 this became a real problem in the absence of having that provision, the difficulties that arose, and what were the f
I4 15 difficulties?
l COf91ISSIONER GILINSKY:
You will have to go back many !
16 I7 years.
18 CIL3RMAN HENDRIE:
T. Tere have been few -- I an not 19 sure if there have been any, as a matter of fact.
20 MR. IMLSCH:
There was one.
21 COffiISSIONER GILINSKY:
One or two about 1970,
'72.
i 22 That was just about as recent and -- I think I wrote to you 23 that was at a time when the Commission was caught in the 24 post-Calvert Cliffs jam.
We really weren 't prepared in the co-Federal Reporters, Inc.
25 way we are now.
Boards weren't as prepared.
4 l
mte 10 45l MR. MALSCII:
I was involved in the Point Beach case.
j 2
I was hung up with a lot of points being litigated.
Myron Cherry I
i 3
was counsel for the intervenors.
Field densification got raised l
I 4
as an issue in the later stages of the process.
5 COMMISSIONER GILINSKY:
So that wouldn't come intio it.
That wouldn't fall into this category.
6 MR. MALSCH:
In point of fact, this particular 7
Provision in the DOE bill would have been not of that much help 8
in Point Beach, because it was hung up on not only EPA issues j
9 i
10 I but also safety issues.
l l
11 COMMISSIONER GILINSKY:
Not only that, but it is l
l 12 pretty hard to imagine making the finding about public emergency e-4 j3 and all that sort of thing.
14 15 l
16 17 18 I
19 1
20 l
j 21 22 l
i 23 l
24 l
a-FewW Reorwn, lm 25 e
R 2764-46 IITLOCK
.-5 mte 1 1
MR. MALSCH:
There was a lot of debate in that case 2
about how urgent it was, that dae power was needed.
The utilitt 3
was arguing that it was urgent, the intervenors argued that it 4
wasn't needed at all.
I don ' t think it ever got settled in 5
the cas e as to j us t how urgent it was.
But they go t a complete i
6 plant ready to go and it was held up only because of hearings. !
I i
7 COMMISSIONER KENNEDY:
I recollected some discussion j 8
which involved that kind of a circumstance, visualizing this 9
prospectively that at some point a completed plant could be 10 I standing there in litigation, and then one or another of the i
11 sort of catastrophes that sometimes visit arises, a terrible f
12 winter with a number of big problens in getting, as happened 13 in a couple of years ago back in the upper Midwest you remem-i 14 ber, when the coal plants got shut down because they couldn 't 15 get the coal into them and at the same time the oil barges i
16 couldn't nove up the river and the pipelines were jammed.
And l t
17 so thiner were pretty tough.
That was one conceivable thing.
18 And dien the other was raised -- and these are all 19 prospective, visualizing all the problems arising -- a major 20 shutdown of oil deliveries or something which would cause I
21 serious disruptions in varous -- you know, these occurring
)
22 regionally more importantly than nationally, and looking to l
23 the circumstance in which, there you have a live facility i
24 which can't operate, which might pick up some load at a critical a-FMwM Rworwn,1m.
I 25 time.
l 1
mte 2 47 1
Now, who knows whether any of those circumstances 2
would ever arise.
It would be a particular confluence of l
circumstances which is hard to visualize, but it might.
3l 4
COMMISSIONER GILINSKY:
It is very much in the l
5 who-knows category.
I am hard to imagine a situation where i
l 6
one plant makes so much difference, given that they are hooked 7
together.
8 COMMISSIONER KEITNEDY:
It wouldn't be just one plant !
9 making the total dif ference.
It would be simply the visual I
10 I aspect of a completed 1,000 megawatts standing there doing l
11 nothing when the lights are going out.
That is the catastrophe l 12 that is visualized.
13 As I remember our discussion of how long age now 14 about this problem, it turned a bit on, okay, these are ve ry,
l i
15 very difficult, sort of who-knows sort of questions, whether i
i 16 anything like this could ever happen.
Suppose it j us t did.
i 17 It is not impossible.
Suppose it just did.
Would you then be ;
18 in a position where you simply could not act?
This would at i
19 l least allow -- give you flexibility at that point to act, 20 should that circumstance ever arise, and the circumstance would; l
21 have to be a particular one, not a general one.
t 22 COMMISSIONER GILINSKY:
It would have to be a hearing!
l 23 before the Commission itself.
l l
24 COMMISSIONER KENNEDY:
Yes.
m4Wwet Recrun, lmL I
25 MR. MALSCH:
The who-knows syndrome, you can imagine l
l
48 l te 3 1
on the OL amendment proceedings --
2 COMMISSIONER GILINSKY:
Those are kind of different.
3 I think those need to be discussed a little bit more.
In 4
fact, I want to understand that situatio:' bettet.
In particular, 5
you could say that when a request for a hearing comes when One 6
plant is down, they can't get the thing started up again.
I 7
would like tc understand that.
8 COMMISSIONER KENNEDY:
That is a dif ferent who-knows.
9 COMMISSIONER GIEINSKY:
That is a different sort of i
i 10 1 problem.
11 COMMISSIONER KENNEDY:
It may turn out to have the i
12 same effect.
13 COMMISSIONER GILIUSKY:
We require a different 14 standard for it in the bill.
The operating license provision I
i 15 is really to deal with some renote contingency that --
i 16 COMMISSIONER KENNEDY:
That you would not like to I
1 17 see, in a sense, legislated beyond your means when logic,
l l
18 reason and everything at that time would tell you that is the l
19 1 course to follow.
Youowould be unable to do it.
l I
20 COMISSIONER GILINSKY:
At the same time, you are 21 setting un a very hign threshold --
i 22 COMMISSIONER KENNEDY:
Threshold in standard, sure.
23 But you would not want to foreclose by f ailing to legislate, 24 foreclose any ability to deal with that who-knows situation.
m-Fe wW ReorMrs,lm.
I 25 That is the way we discussed it before, and it seemed to me i
i
49
,mte 4 I
to make -- dhe contingency planning sort of thing, that just 2
makes simple good sense in a tough world, s
3 COlif tISSIONER AHEARNE :
Is there any potential now I
4 that a hearin, board -- this would clearly have to be contested sincel 5
correct, because of the operating license is uncontested, 6
there is no requirement for a hearing the order could be issued 7
anyway, correct?
S o th at --
8 CHAIRMAN HENDRIE:
I assune, yes.
l 9
COMfiISSIONER AHEARNE :
It would have to be a contested 10 !
operating license.
Is there any provision now that the board l
11 can issue an interim operating license?
l 12 MR. MALSCH:
Yes and no.
They can issue sometimes --
13 let's suppose you have before the board ten issues.
It might 14 be that, of those ten issues, onlv one would be relevant to, l
15 say, fuel loading or operation at ten percent power.
The i
16 board might hold an early hearing on one or two issues for l
i, 17 the purpose of issuing a partial decision on an authorized, I
18 limited operation.
That is presently authorized in the i
19 rules and has happened in the past.
l 20 In some cases you may have no issues daat are relevant i
21 to operation at lower power, those kinds of interim onerat-l 22 ing licenses are issued.
23 If you had a proceeding pending in which issues are I
24 raised about operation at any power level, you would have to w FWwW Roomm,1w.
I 25 hold the hearing on those issues and resolve daem before you i
i
htte 5 50 I
could issue any kind of operating license.
2 COfCiISSIONER AHEARNE:
Which section of the law 3
requires that?
4 MR. ?'ALSCII:
Section 189 (a) of the Atomic Energy 5
Act, which says that a hearing nay be held upon the request 6
of persons who may be af fected.
7 COM!!ISSIONER AHEARNE:
Does it say that no operation 8
will be allowed until after the hearing?
9 MR. MARLSCH:
Not specifically, but that is how it I
I 10 I has always been understood.
1 Il COf?!ISSIONER AHEARNE:
This is really based upon a 12 possible prospective need.,
13 CHAIRMA!T HENDRIE:
Yes.
The aim was to prote*ct 14
'against a situation in which, I don 't know, you have got a l
15 new station.
l 16 COffiISSIONER AHEARNE:
Dick did a good job of l
1 17 explaining that.
i i
18 CHAIRIiAN HENDRIE:
It could be for some snarl in an I
19 antitrust proposition.
Here you have got the governor on the l
20 phone --
l 21 COffiISSIONER KENNEDY:
The governors were concerned 22 about this.
23 COMIiISSIONER AHEADNE:
It couldn't be a snarl on l
24 antitrust, could it, because that wouldn't effect -- that WFederal Reporters, Inc.
I 25 l wouldn't be an issue in the operating
mte 6 -
51 1
MR. MALSCH:
It could be.
You could conceivably have 2
a hearing at an operating license stage. I muld say, '. hough, it l
is likely that all of the litigants would be interested in 3
l 4
having the plant go into operation and would probably stipulate 5
it.
Frankly, it is a large bargaining chip if a party wanted --
6 was of that frame of mind.
7 CHAIRMAll HENDRIE:
I would like not to see the Commission helpless to take an emergency action where it was 9
clearly urgently needed in the public interest and was compa-j l
10 I tible with health and safety and so on.
I think there are i
11 sort of two perceptions of this interim authority.
I think 12 there may be a perception in the industry daat this would be 13 a measure exercised frequently, perhaps, in operating license 14 cases to let a plant go into operation when construction was l
15 completed, whether the hearings were finished or not.
That i
i 16 was clearly not the intent here.
The discussion in framing I
i 17 die measure was to deal with those urgent emergency situations i l
18 where operation, in view of the situation, would be justified 1
19 and there was an ample case to be made for that, and the 20 decision was reserved to the Commission itself, and so on.
l 21 So I would think really that there would be rare use 22 of it.
But I find it peculiar and not very desirable to have 23 the Commission's statutes arranged so that, in the event of 24 such an emergency, the Commission would be unable to do l
mamusanamn.nn I
25 anything other than wring its hands.
l t
i
te 7 '
52 1
COfMISSICITER AHEARNE:
Did the Commission have in 2
mind going to the area in which the plant would be located, 3,
to hold its emergency hearing?
i 4
CHAIRMAN HENDRIE:
I don't know.
5 CO!MISSIONER ITNNEDY:
That auestien never arose, to 6
ny recollection.
7 CHAIRMAN HENDRIE:
I t didn ' t aris e, and I don ' t think 8
we vould want to be tied to some geographical sort of action.
9 CO!EISSIONER KENNEDY:
I think we would want to l
10 1 disc 4 that at the time and decide which way the equities i
11 would be most served, best served.
12 COMMISSIONER GILINSKY:
I don't think::that you want 13 to put that in.
14 Let me just ask you, Marty, does.the Commission now
~
15 not have the authority to reach in and grant licenses?
i 16 liR. MALSCH:
On the granting of a hearing on a l
17 material issue?
tio, it doesn't have that authority.
l 18 MR. BICKWIT:
What in the statute gives the Commis-i 19 sion the power to issue an unlimited work authorization?
l 20 MR. MALSCH:
No thing.
That is an invention.
t 21 MR. BICKWIT:
Why couldn't you have a similar j
i 22 invention?
23 fir. MALSCH:
In fact, this thing I just described to 24 Commissioner Ahearne is that.
A limited work authorization is Ace-Federet R.corters. Inc.
25 taking out the issues that appear to be relevant to beginning f
i i
1
te 8 53 1
cons truction only and resolving them on a partial decision 2
basis.
In this case, you would lif t out of the hearing issues 1
3 peculiarly relevant to operation at low power or loading fuel I
~
4 and decide those as a basis for issuing an interim license.
5 CHAIRMAU HENDRIE:
You have to settle them.
6 fir. MALSCH:
You have to settle them. There's a hearing I
7 required on LNA en issues. relevant to construction, and on icw power test-ing (inaudible).
8 CHAIRMAN HEUDRIE:
The Commission has not asserted 9
an authority on the construction permit end of the LWA case, i
I i
10 i for instance, to say that he has all of the shovels and the Il concrete r= ady, never mind that we don't have the LWA hearing l
12 issues settled and decisions issued, go ahead and do it because 13 it is. ready to go.
You wouldn't do it because it is hard to 14 see what urgent -public need would be met by letting 'him star't 15 digging.
l l
16 But at the other end, you have got a power plant l
l 17 and for some circumstance, you are about to lose the electricity.
l 18 supply in a region, this nachine would bai' it out, it is I
19 otherwise okay from a protection safety --
20 t.UMMISSIONER AHEARNE:
Are all of the arguments 21 essentially the same for the operating amendment?
l 22 CHAIRMAN HEUDRIE:
Uo.
I think we ought to -- there !
l 23 are similar circumstances in terms of the urgent need, of a 24 possible urgent need.
But there are some other things that we co-Federal Reporters, Inc.
25 think we ought to search out there.
And since Peter is about l
l l
.te,9.'
54 I
to have to leave, I wonder if this night be a break point and 2
let's pick up next time on these things.
3 tiarty, would you poke around?
4 Vic, could you note some of the things that you 5
wanted to point out in this area?
6 COfiliISSIOITER GILINSKY:
fiainly I wanted to understand 7
the problem a little bit better.
I guess we will be discussing 8
this when I am gone.
Maybe I can j us t talk with Marty a little 9
bit.
l 10 I CHAIRMAN HENDRIE:
You will have to read the 11 transcript.
12 COMl!ISSIOIER GILINSKY:
I will read the transcript.
13 COffiISSIO1ER AHEARNE:
I an not sure where I come out 14 on the other.
I have< got to think a little bit more about it..
15 COM!iISSIONER GILINSKY:
In any case, I think it is i
i 16 important to distinguish between the two.
I think that they
{
17 fall --
l 18 COM!iISSIOtER AHEARNE :
Dick was more clear on the 19 reasoning than I have heard before.
l 20 CHAIRMAN IENDRIE:
Next time we will get some l
21 elaboration on the amendment situations.
l l
22 All right.
Thank you very much.
2 23 (Whereupon, at 10:31 a.m.,
the meeting was adjourned.)
1 24 l
cefederal Reporters, Inc.
25 i
1 a