ML19308C089

Transcript of 780809 Interview W/Hk Shapar for NRC Oral History Program

ML19308C089
Person / Time
Site:	Crane
Issue date:	08/09/1978
From:	Mazuzan G, Trask R NRC OFFICE OF THE SECRETARY (SECY)
To:
Shared Package
ML19308C087	List: ML19308C086 ML19308C089 ML19308C091 ML19308C093
References
TASK-TF, TASK-TMR NUDOCS 8001210386
Download: ML19308C089 (21)

Text

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.==& 9 =^::: =.. . =... ..= t==._ INTERVIDERS: GEO. G T. FnZUZAN !, =. =.." 1 ROGER R. TRASK ~~~1 p==- _. t=== == :.21.. 5.?_5. ....,e .C. . ' =. "~ ,'_,e,, ~ 'e WT

-- -- p r __ ? '.s h=. beEi r_ , $.. l. Mr. Shapar: Well, I have a little anecdote to tell'about Calvert,gliffs. I was about to board a ship at PiraeusMQthe port.iX Athens, [.][.} and I guess the case had'just been decided and I got a cable-E_e_ gram in Latin that was handed to ne as I came over the gang-55 plank and it said "Omnia sunt perdida," neaning everything is lost. (Laughter) .m Dr. Trask: Who sent you that telegram? ps ff.f 5=2 Mr. Shapar: Joe Knox, who was an attorney on my staff. EZ Dr. Trask: Could you just very generally describe the nature of your Anal involvenent in the Calvert Cliffs case? Mr. Shapar: Yes, my mnal involvenent had to do with developing regu-lations to inplement the National Enviromental Policy Act. d... The conmission's initial inplenentation of the National Enviromental Policy Act, of course, was the substance in-volved in Calvert Cliffs because that regulatory franmork =9 for NEPA inplenentation was the target of the legal attack.

== Dr. Trask: So you would desci_ibclyo6r fo1{as_being the key person in = the drafting of those regulations? A.... Mr. Shapar: Well with Powden, Mark Ibwden, to whom I reported. m Dr. Trask: What role did the General Counsel play? Was that Hennessey? Mr. Shapar: That was Joe Hennessey. One docment that you ought to - = =-- that I think exists - was a staff paper which presented 7.t.'.f options to the Conmission on how they should go about im-Z plenenting NEPA. There were various alternatives presented. . _ = _, Did you run across that in your revicw of the files? Dr. Trask: I may have, I just don't renumber off-hand. But we have J.n the office a lot of ABC regulatory materials which were handed over to NRC at the tine of the split and I have gone through thase. Whether that specific docment is there or not, I don't rm eiLer. -.c Mr. Shapar: This would be shortly after the enactment of IEPA. NEPA kent into effect on January 1.1970, so around that tine ~~ M period I recall a paper that I verked on that presented various options to the Comnission on how they should go about inglenenting NEPA. Of course the problan was a

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formidable one because in the absence of any jtrlicial con- .i struction of the statutes it was a very broad and anorphous M kind of statute - do everything possible to coaply with s the objectives of the statute. So there was a wide area of discretion as to how the agency would go about implenenting a the statute. The Comnission really had a lot of choice in = Ina to go about it. j Dr. Trask: Can I go lxick a little bit to the period when NEPA was being .U~$ discussed in Congress and the hearing situation was on in s=2= 1969? How did you and ABC in general react to that? M.~

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Mr. Shapar: I don't really have a clear recollection of that. My recol-C lection is that we did com:ent on it and you will probably F59 find comrents in the file, but the bills suddenly picked up 1j steam at the last minute and I have a feeling it caught a people unawares pretty nuch. =a m Dr. Mazuzan: Was the joint conmittee concerned with NEPA at all and the inplications it might have? =- ..= q Mr. Shapar: I don't recall anything like that. Of course they were, n.~ shall I say pronotionally oriented, and it would have been - -A logical to expect they would have been disturbed at the

1. _ d possible adverse inpact on the program.

to get licensing donc quickly and they k a ve#ry efficient ??] p re pressing process. Obviously the advent of NEPA brought a new dinen-7 sion. What it did in effect was shatter a long standing =.1 position of the Comnission, tha, icensing and regulatory =J authority, unlike the broad charters,d t6 radiological health of nost other regu-latory agencies, was narrealy flie .. = = and safety and the comton defense and security. Of course,

== that point had been litigated in the New Hanpshire case "77 and the Comnission had prevailed in the courts in establish-Z ing its position that it had a very narrow charter as far G as licensing and regulation is concerned. So the inmediate

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thrust of NEPA was to vastly expand the licensing and regu-latory jurisdiction of this agency, the Atomic Energy Com-mission. Dr. Trask: Was that all they anticipated, or do you recall was it anticipated during the legislative process of 1969? d Mr. Shapar: I am suru it was recognized.... ~:.L ;. E

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.= _. ,,..s Z Dr. Trask: By the Air? ~ 'EE'% Mr. Shapar: By the AEC. My ntnory is pretty hazy on this, but I think

==' you ought to find sonething in the file to shcu that there was sone appreciation of it. But the legislation got on [.Z. - ~ - " a prutty fast track tcwards the end. Also, I think there were rather strong disparate views as to the trte effect of '"= the legislation - how drastic the effect kould be. I think that some people felt, anong the Comnission that it wouldn't take nmch to comply with the statute. I think

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there were others wto felti differently. Dr. Mazuzan: Was it the position of the legal staff that it vould take a lot to conply with it? " = " Mr. Shapar: I think you will find that in the staff paper that I refer-red to. The statute was so broad that it was very difficult to predict how the courts would react to reviewing cases under the' act and this wasn't just true of the NIC [ABC), it caught the biole Federal Governnent, I would say,

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relatively unprepared. ' Dr. Trask: Did the AEC, prior to the passage of NEPA, undergo very N nuch criticism on environnental matters that you can {^" recall? . =. Mr. Shapar: Yes, I can recall, for example, a ; 'ng before, I think T. l it was Dingell, on the Federal Watu Tollution Control Act,

==- in which the fellow I rencmber testifying was Harold Price who was then ' Director of Regulation. He got int 6 trouble.. '.T.T during that testinony.'.~Dingell. asked that Price explain ~ - ~ from a legal standpoint'th5t NIC'did not have jurisdiction 'e=~ over hot water discharges and their inpact on fish.. Hs.... TI [ Price] kent on' to say w& ar6 not' concerned abodt that, '-' neaning that we didn't have a_ legal basis for concern. ~ ~ There was an article,'I thinE in Science magazine or some.

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nogazine, and be was attacked right then and there by Dingell. d. Dr. Trask: Was that '69 or in that period? 77-Mr. Shaper: I think in that period, '68 or '69, and he never heard the end of "we have no concern," so this was not a very popular position. There were a lot of environnental concerns at that time and there was pressure on NRC [AEC] to deal [ -- with these environmental concerns. The AEC felt that it 7 t==_1 t== =_;=__ 1 e .M. ,.=::;_ a.. ae A ,.(.+. Seep.m-e.*.'.'t.e m .n.. e ...-o.c D-

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p- =.:-.==.=. ...4 =-' 2- " ~ " didn't have that charter under its statute. Really, the 5~h only place where hearings were going on where it could be

==.=a dealt with was in th3 AEC hearings. There weren't many l~Z state hearings, there wasn't any other federal agency = holding hearings in connection with nuclear pcraer plants, so the only place the environnentalists could conn and ~~ expect to be heard was the NFC [ABC] hearing on radio-- logical safety. So th2re was continuing pressure to get the AEC to deal with matters that they alleged here not

== in the conpass 'of their statutory charter. The big case, of course, was the case involving Ibw Hampshire and the C cffect of this discharge on fish. The court plainly up-held the NFC [ABC) position under the then existing law.

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) Dr. Trask: But the passage of NEPA really had' the effect of dng. that decision? = / Mr. Shapar: Yes.

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Dr. Trask: Not useful?. .==_m Mr. Shapar: That's right. r g-Dr. Trask: When these NEPA regulations kere teing prepared in 1970, e did you think they were consistent with IEPA or did you -= anticipate a (nurt challenge? .=- Mr. Shapar: - I anticipated a court challenge and I didn't think tiny went far enough to comply with NE:PA. Dr. Irask:. Why didn't 'they go furtinr? Was that because of a Ccrn-mission decision or.... 7 Mr. Shapar: It was a Conmission decision. One fellow you tray want to talk to who was pretty instrumental in the way the Ccan-mission went in deciding how they would inplement NEPA ' ~ ~ ~ is Jim Ramey, Janes Raney.. His office is not far from Z.1 f , here;it is in the Air Rights Building. I would approach m. l him rather carefully. Dr. Pazuzan: His pos'ition was that the regulations went far enough as the Geheral Counsel staff had proposed them? 'Mr. Shapar: My recollection is that he preferred to do, shall I say,, -~ not as nuch as could be done to carry out the statute. E_..' = - = = _ Can,he be characterized as a pronotional tran on the AEC? . = _ - Dr. Pazuzan: m

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Mr. Shapar: Yes in can, I think h2 said that hiJrself. Y2.

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Dr. Trask: Did any of tln other Conmissioners at the time raise any " ~" qu2stions or object to this rather conservative approach? Mr. Shapar: I recall there was scm3 discussion ainut it, but I don't =- recall that there was..... It was not very difficult Z for his position to prevail. I think Seaborg was the =. = _ chairman at that tilte. He [Rancy) was the only lawyer . = = - - - - nember of the conmission. Soncone else who it would be ~ ~ ~ ~ good for you to talk to would be the General Counsel, Joe Hennessey. Dr. Trask: Did he personally discuss the staff papers on this question [~] with the Conmissioners? Were you theru? ~Mr. Shapar: I think I tray' have Iren there. I just don't recall whether I was present at the Conmission neeting when it was discussed, ~ ~ I rray have been. He [Hennessey] oertainly would have been there. And my recollection also is that he tried to get = =- Raney to go farther in inplenenting the statute. I think 7 ",=- he was particularly upset, as was I, in tha portions of the

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regulations that said that if tlure was a state approval then ku didn't look behind it at all. . c r. ~ ~. ~ m-Dr. Trask: Hennessey was ' upset 15. tilat? .. ' ~.. -. ~- Mr. Shapar: Ithinkso,'m[reco'llection,nowthiswaseightyearsago. But I.have _a strong _ feeling or recollection that was so. - 1 _ Particularly that part of.the regulation that said if a m,_ state ' signed off on sannthi~n~g tlun"su didn't look behind it. "~~ Do you' thiiN.... .. = = Dr. Trask: that Rane'y 'an'ticipated the kind of court .chal,len.ge_ whi.ch. deyeloped?_. 33 _ - - u-. ...... =..,........ Mr. Shapar: Raney was close to Jackson [Sen. Henry]'. I think I recall ~ being told that Jackson felt that the bill really didn't ~ go, do very much in terms',of its 'iitipact on the ABC. It ~ was only when the oo'crt~s stepped into it' that Jackson i=== found out that what he nny have considered a rather nodest bill wasn't that at all.

==<:. Dr. Trask: Was he on the JCAE at'that tine? ~9_

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Oh yes! E I:5 Dr. Trask: IIe was - f eEE Mr. Shapar: IIe was indeed! MEh -55 Dr. thzuzan: Was he a pronotional nnn on the JCAE? E Mr. Shapar: Yes. EE ss Dr. Mazuzan: So the NEPA regulations which he autlured also sort of went M against his position although he thought they were loosely .es erough worded.... 255 5__= Mr. Shapar: I can't really be sure, you know I am talking about 12rpres-E sions ncw, intuition and runor and perhaps even gossip, di but I have heard that story several times. Now if it is 3 true or not I can't vouch for it. E =.... Dr. Mazuzan: Th2re is nuntion that wten the ABC regulations were finalized h they also went over to EPA and EPA approved them or wnt M along with them.

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Dr. Trask: As well as CBQ. h Mr. Shapar: Well, I don't know about EPA. That's not important. What would be irrportant is CEQ. I think that may very well be =5 true. EE 55 =d Dr. Trask: Yes, there is a neno which in fact I cited here about a ~5 necting with, I think representatives of, rraybe not EPA but at least CEQ and the Departnent of Justicn where M Justice expressed sone doubt about what would happen if _' 3-there was a court challenge but said well, we'll go along with you, but CEQ applauded the AEC regulations and in fact said "these are the best ones we have seen." = =a Mr. Shapar: That's right, that's correct and I think it nny have been E Mcdonald who nede that statenent, who was on the CEQ at 5 that tine, I don't recall, but I do recall that at some M public neeting a nenber of the CEQ praised the NFC regulations. 5 So nobody at that tine really had a clear idea what the fu)1 R impact of that statute was. For exanple, in the Calvert 55 55

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hs::. J::._T:M Cliffs case, it calls for a cost benefit, individual cost i 9 benefiti analysis -- you won't find anything in NEPA that =" talks about a cost benefit analysis. Now this is not atypical of statutes. NEPA, I would say, is one of the C , nest broad statutes you will find which left a large area Eri =._; and they did. for the courts to fill.in the in%'-ieaeies,p4w F4, Dr. Trask: The court really read a lot into NEPA didn't it, in the [f = 2__ Calvert Cliffs decision? Mr. Shapar: Well, I cbn't know if I would put reading a lot into it M but it is such a broad statute that when Congress does f=Z. that, traditionally it neans that if the Congress von't " ' " = be specific the courts have to be because the courts deal with actual controversies which Congress can't be rightly =...a expected to fo hee. .. =m Dr. Trask: I think the CEQ representative at that necting referred to ~ as their General Counsel, his nane was Atkeson.... =.=2 -~ . =.1 Mr. Shapar: Tin Atkeson, yes. h*.J.Y Dr; Trask: And I think IEussell Train was the Chairnan of CEQ at that tiro r :. Mr. Shapar: That's right.... - And he was, quoted either at that neeting or at sono other Dr. Trask:. -~ occasion as being ve'ry complinentary and in fact in sone d==' Congressional testinony sipecifi~cally' pointing to the ABC ~ ~ regulations"as the kind'of noder, which is always very interestinggiven} ths fact that they were being chal-i=;-- lenged at-that tine.-- - -- q- ] Mr. Shapar: There was no'-do'ubtYin iny mind' that' the ABC could and should

==y have gone much farther in attenpting to implenent the '==y statutes. Dr. Trank: But generally the ccnmissioners, led by Pancy, didn't want to and they thought maybe they could either avoid scue-thing like Calvert Cliffs or not lose in that situation. -{ Mr. Shapar: Yes. Nobody deliberately sets out to lose a lawsuit. p=

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====. Dr. Track: Right. [9 .== re Dr. Pazuzan: Might not it also be said in defense of AT that they EI- ; probably had the nost cxmprehensive set of regulations

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of any governnent agency? Mr. Shapar: Well, I think we wem one of the first, or close to the ~~ first, to get out any regulations. I think our regulations cane out before the CEQ guidelines. I am not sure of that. Dr. Trask: That's right. The preliminary ones cane out in June of '70 and then.... T. Mr. Shapar: And we kere the first agency to get anything out, I think. 7 Dr. Trask: And yet there was a.gcod bit of criticism of the ABC for 2 being slow about getting those regulations out. ~'Mr. Shapar: That's correct, that rings a bell, that's trua. They were the first, or close to.the first, and they were criticized

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for being slow and I think, if my nencry is right, that their regulations cane out before the CEQ guidelines cane =7_. out. ~ ~ a.*_,. Dr. Trask: I think the CEQ interim guidelines cane out betwen June b and Ibcember - the first tw versions of the AEC regula-tions. As -far as the case before the court is concerned ... _....~~ there were briefs and so on, I have seen those........ ~ My[ office dickn'.t get into th6se; we may liave reviewed Mr. Shapar: Yes. them but.that sould~have been..- ~ Dr. Trask: Your name is one of.the-five ~rianes' or so on the.... Mr. Shapar: Yes, which neans I would have reviewd the brie.fs. _.and.,. subnitted ccaments but the ~... '. -I think the solicitor ~ at that tine was Rowden;-he had direct responsibility for preser. ting the case in court. Now that's really not overly significant - how the Governnent's argument _ent, because th2y were in effect defending the regulatory regine which had been put into effect. I would think - from your standpoint.that it is-that franewrk that was =7 ~ destroyed in Calvert Cliffs that is inportant rather than how skillful lawyers were who appeared in court and and presented argumnts.

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..-.~.--.:.... [.;.. I-==p ~ 4 las =as sii=E 9-Q X 7 Dr. Trask: But Ibwden kunt to the court and. presented the argumnts? ..-.m Mr. Shapar: I believe so. Yes At that t.ine the nemher of tM General if Counsel's offio/Nhresented the agency in court was aN pff jolicitor, and f believe he was solicitor at that tine. =+ Dr. Trask: Yes. hhen the decision cane acun in July of '71, Was it =~t. in any sense a surprise within the AEC? You told us the .i.~ story about getting the news (laughter) in Greece but a were the Conmissioners surprised, was Raney surprised, or c2 was that a foregone conclusion? C q Mr. Shapar: I could only - no, I don't have tM inpression tnat it =u was a foregone conclusion at all. I think it was view 2d 7.f" as a very serious case a case that no one could be ~C confident about. I think what nny have come as a sur- =2_w prise was the full dinension of the loss, I nean they ..==aJ lost on about every point. Calvert Cliffs was sweeping ~.1 law: all kinds. of holdings for exanple, saying tlut even T when the case was uncontested the environnental nutters a have to be put forward on tM 2ecord as well as the health til and safety natters. ~ f* Dr. Trask: I have picked up scuewhere and I cite this in the paper, I think it was.in Nucleonics Week, sone connent about h74 ""=2 incredible it was that the AEC had not anticipated the' T decision and _at,least nnde sone preliminary plans.... _m Is that an accurate report? =a =Z:.;. Mr. ' Shapar: I think.the_-industry always takes the position - a ~-~ position tMy themselves have been advocating. I nean =_=a whatever the Conmissign di_d in. inplenenting Calvert..

=

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Cliffs, I nean implenenting NEPA, I assuTe was in contrast ~ to what might have been done and did not exactly offend ~ ~ T the industry.-(It is not_ atypical of -thcin ~to say'whe6 a. case is lost in court that it should have been anticipated, = ~ so that the maxinun credible doesn't happen. Nanely, the . -d maxinun credible is the fact that any plant would be de- ~~ layed and, of course, there was a virtual noratoriun on aw licensing after Calvert Cliffs.-

==- .:b,h_$ Dr. Mazuzan: Was Schlesinger's decision not to appeal the case a surprise 3 to ADC hands?

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Ts= %5i5 Mr. Shapar: To cone of them, yes, I think so. I think the agency was h. fairly mil conmitted to it once it had mde the decision. C=s They must have thought it was right, notwithstanding b litigative risk and the natural tendency of anybody who tag loses a law case, if you Inad the newspapers, is that I t-g 6-3 want to go all the way to tM Suprem Court; everybody is going all the way,to tM Supreau court whenever they 2 lose a law case. So my inpression is, yes, it came as a 2a; surprise to a number of people in the agency who wren't EE really ennushed in the legal... didn't appreciate the n legal situation. 2 xr Dr. Trask: hhat about Ranny who was on tM Coamission still at that h tinc? Do you-kncu anything about his reaction or hcw M he felt about the decision not to appeal? f E=5 E. Shapar: No, I don't. I really don't.

g Dr. Trask:

One would have to presum he wasn't enthusiastic about that? Q .ms Mr. Shapar: One muld have to maybe infer a bit of unhappiness,-I don't

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.E Dr. Trask: In fact he expressed cone 'public discontent with, well at least, the revised regulations which cane then in December of 1971. I am sure you_r_ecall.-_t_h_at. 5__ a = =5 Mr. Shapar: Yes, I do. The guy v.6 had tM biggest... I was out c==# of the country at that tine... and these revised regu-M lations had to go out fast so I wasn't involved in it at 5 all or very muchr;Because'I gtess-I was gone for about _2~ -u-three weks and they had to ha put out-innediately onna Es very fast turn-around: tine. _Rcreen handled that. --He ~5 would be.intinately familiar with the Fost-Calvert Cliffs: WE regulations. =5-g

-Z Dr. Trask

Did the bhite House.get into this at all? Just at that-point, right after Calvert Cliffs or just a couple of days

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before Calvert Cliffs; Schlesinger and Doub were ncminated M to the Comnission. -Do you have any knculedge, do you - M think there was any hhite House input into this decision ac not to appeal? es=, Mr. Shapar: I don't know. .i = '5' _? _ = - .e .e 1. [.- E hb!. Eb ~

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E== 1 E$~- 5 ) E.".i g , 1.. 7. 7 .=.=- I 4' .. 4 4 Dr. Trask: It kould be sorrething that would be very difficult. l.[I.. Yes, if it were done, people would have been very =,wf:.s y4=s =

aMle, Mr. Shapar:

very sensitive about any white !!ouse pressure on a regula-G tory... so if it were done, it was donc quietly. L Dr. Trask: Again citing som2 thing in Nucleonics Week there was a sug-777 gestion there in August of '71 that Ni):on had... the T[.2 iz ? hhite IIouse had been very careful about these appointments ... wanted to appoint a couple of peopic kho would help

==-" to change tha innge and the direction of ABC.... ] Mr. Shapar: And Schlesinger did just that of course. I think as I remil, = the Schlesinger rationale was that the courts had spoken and !.Z" ku were going to get on and do the job. This was a popular position in unny sectors. un Dr. Trask: Was it popular generally in ABC, that you can recall? j"j b Mr. Shapar: I don't recall any widespread dissatisfaction. In thase days, tha staff was a very responsive staff as far as the

==--i bureaucracy goes. They would deliver on what the Comnis-J sion wanted. Schlesinger,was a very strong chairrran and I don't recall any... the logic of it was clear. It was a resounding defeat in the courts so I don't know that many people would second guess, at least in any widespread fashion, that kind of a decision.

.

Dr. Trask: Do you think Schlesinger personally was really comnitted to NEPA or was his stand nore of a political stand, or

==c is it a combination of both? ._=_.a Mr. Shapar: I don't know... Dr. Trask: That's kind of a personal judgm2nt, I guess. Dr. Mazuzan: The resignation of IIarold Price shortly after the Calvert " ~ Cliffs decision, was that a direct result of Calvert Cliffs .=,[ or was that a long growing thing?

== Mr. Shapar: I cbn't think it had anything to do with Calvert Cliffs. 1 Dr. Mazuzan: IIe had been in that position for such a long tine....

==k . Mr. Shapar: I think the decision was based... was made on the Com- ' ~ ~ mission's assessnent of his managerial abilities and whether ..J or not he could be responsive enough to new directions. But I think the nnnagerial assess: rent was probably the dcminant factor. ..J'*... '. * * ~ ' *bb'aMa ..h. wem. . 4=_: :2.. r.'3;'/. J" 4%.*41' ; ' "~""" ~ ~ ' ~ __zss. ara";;aaela...y..__.u;Es" '" ;_;-~.-. _ =e" " = " -

-~ =.. N25 ?$:? .== = ig;;3 ?_5:5 = e _. Dr. Trask: Schlesinger rade a...what turns out to be a rather EiX fanous and controversial speech *... Jal H ubour's speech gg r W-which.... ' = = Mr. Shapar: Bal Harbour's speech, yes.... ese Dr. Trask: V;hich certainly did not please the industry. D3 you have any recollection of any responsa to that within the agency? Mr. Shapar: I think it was a popular theme. I think large numbers of .. [ the staff resented industry pressure on the schedules and conformity with industry positions. In terms of the pro-

==" fessional staff, I think a chairman who would in effect take on the industry... which Schlesinger inferentially did... was probably popular in nest quarters. Dr. Trask: Incidentally, it has l$een suggested to ne, by Conmissioner j Gilinsky, that Calvert Cliffs was really a substantial turning point in the history of the agency and it really +==w was the 1:eginning of the new AEC. Do you think that's a .=; fair assessnent? _d 7 Mr. Shapar: I think that's a fair cc:mont. It opened up the agency to new directions and it vastly expandad the charter of the M;. A T, getting them off their exclusive con ntration on % very narrow area of nuclear safety. Beyond this alyut 5 f the sano tire period, 1970, there were other,re-= tts 6f . =- the act that expanded the AT's juri'sdiction even further M and that was in the area of anticipatory antitrust -)urls-diction...So instead of being jus radiological.. safety it was now antitrust:and-also now ffull gambit of environ-

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nental considerations and not just radiological inpact. -. 2:

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Dr. Trask: Do you think that Schlesinger's coming to the Conmission,

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even if thern_had not been a Calvert Cliffs decision about the same tiire, would have contributed to a changing "=7 direction to the whole thing? _q._

= =.

Mr. Shapar: I think I would have to say yes based on the Bal Harbour

==" SPwch. _ =, Dr. Trask: Would he have nede the Bal Harbour speech if Calvert Cliffs ' ~~- hadn't occurred? Mr. Shapar: My cun speculation would be yes. r==. w L^.':.:..'.1., Ws =.:~h ~ s== '~~ ... =. =...-- .2 _g

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• =

'54 act was instituted, about the conflict Intween the Mi regulatory side of things and the proactional side of -G things and that sort of went down through the years. Do =Z you think that Calvert Cliffs prenoted that split nore s=ex than any other event? =.==; Mr. Shapar: Well, there had been periodic pressures to split the agency and the conventional wisdom was that, yes, in theory, it was a good thing to do. Then cane the punch line: but Z' not now. Ict's look at it again in fi_ve years. This ..._ J was said about two or three tines. It's a good idea. You =W will find extensive discussions of this in various hearings

_y before the joint mnmittee during which the natter was

.,_g gone into in great depth. 'Ib nuke a long story short, =1 it's what I said: is a gcod idea, has a lot to :.eccanend it, but not now and in five years vu will lcok at it again, that nay be. the right tine. If you take a look at the ~ 2.T~.1 testinony that was presented by the AE when the bill ra finally did pick up steam I think there was a line in the "":~ testinony that said this is an ideh'whose tine has cane.. Dr. Trask: I nude sonn:refdrenceItcurds the end of this paper to ~ =4 the interim licehsing legislation. passed and enacted in . =f_ Mr. Shapar: hbuld it have bcdn'thd interim licedsing or....

=

=== 4 Dr. Trask: Well, it was the~ Quad Cities case arid'i,t was.... ~ ,= _, Mr. Shapar: Oh, tenforary licensing,.Section.192 or.193. = -- =+ Dr. Trask: Yes, some people observed at the tine and I read it a.n ..[ sonn secondary accounts of AEC hi' story of that tine that = =m.1 this was an effort by AEC to kind ~of water dcwn Calvert N Cliffs. Do pu think that is a fair estinate? ] Mr. Shapar: I think the unin objective of the legislation was not to. M have a fully constructed plant sit idle and it was an e-e==4 .] in. }+=== =& ";= i

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yhcAaN SYY attengt to m.aclufb that kind of a situation. I don't im think the purpose was to water dcun the National Environ- !- 5 ~ ~ ~ ~ nental Policy Act, but I think it reasonably can be said that anybe that was one of the byproducts. But that =+ wasn't the basic purpose at all, that's my recollection [T~~~~ of the situation. Dr. Trask: In some source I read there was a suggestion that Schlesinger was really angry about the Quad Cities decision, which he thought sort of took the wind out of the sails of his _- =t efforts and the Conmission's efforts to really respond => positively to Calvert Cliffs. What you just said about

==H ~ the tenporary licensing legislation.... 'Mr. Shapar: That legislation was not very effective. It was only used, I think in one case and that was Vernont Yankee.

==_ l Dr. Trask: So even if the intent was to water down Calvert Cliffs, which apparently it wasn't, it didn't have that effect because it was practically not used.

== Mr. Shapar: No. 3 Dr. Trask: It did, of course, have a terminal date. Mr. Shapar: That's right, in September of 1973 it expired. = Dr. Mazuzan: Organizationally,in the AE bcw was the General Counsel's office set up to handle regulatory natters? =.==_ ; Mr. Shapar: In tMse days there wasn't a separate Office of Executive .. _..' T Ingal Director and Office of General Counsel, it was all one big offim, the Office of General Counsel. But be-cause of the ex parte prohibition, as Assistant General Counsel for licensing and regulation I could not talk ~~~~ to th2 General Counsel, as I cannot ncw, on any matter that was being litigatedgpy agency. So there was z-a conplete bar of any,asqw discussion betmen me and the General Counsel on any case that was pending. So .. J.T to answr your question nore directly, the General Counsel advised the conmission, or the Solicitor, on the review of =. = - cases that cane up. And in the sane way we do now, staff =i-attorneys would represent the staff in presenting the. ..f ~ ~ staff's case at the hearings. We really worked in the 7~ sann way in terms of the way cases were conducted, nannly g.... {M nr ~ * < :iE==ia. =.=.m ~ " ":=%.*;m:";".~*.*,m:'*;."'.*n' 2*:.Y '" t~.-~.~1 ~ ^ ' ~ ~ '..... :: ^': " J ::. :'...... L' '.'.2'..'.*.":3~4 ~ ' ^ ':.. ^ ':." :

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intrediate staffs. =._.4 = 2.q Dr. Trask: Were you physically separated... _d...q =m Mr. Shapar: Yes. The General Counsel was in Gernuntown and the regula-T_d tory legal staff was in Bethesda. . =-- j _= q Dr. Trask: What do you kncw about OGC Incords for that tinn? As I (($ nuntioned before su have 60 or 70 volunes, boxes rather, .=52 of ABC records that were turned over to NPC at tin tinn W of the split. Q E=d Mr. Shapar: Yes.

=

.=.i Dr. Trask: But there must be, thpse are not necessarily OGC records. I [.[ did find a considerable number of (bcuments about Calvert 3=q Cliffs and the developnent of the regulations and so on. ZE1 a Mr. Shapar: Yes. 2 w. Dr. Trask: Mr. [ Martin] Malsch unde a lot of references to nenoranda j that le had written in the process of the developnent of tluse regulations and I think, during the tinn of the Calvert Cliffs case.. I haven't found tlose in tla boxes c3 ku have. Do you have records still lure in your office. F l.- or what do you know ainut those records?. Z Mr. Shapar: I cbn't kncs anything.. Whatever. records.we have, of course, are completely ~open to you. I guess the best way to handle i that is to.;;. I guess go:back 'to Malsch and ask him to

.2 dig up any records you want. Whatever records we have" of that period are availabic to you.

==q Dr. Trask: He didn't seem to, or at least he told'us he didn'treally kncw wthre tlnse records were and ku have been having a y hard tine getting a handle on where all these records are -. = - - because they are in various places and because of the [.= split that is confusing too. The best se have been able to find out and we haven't really talked to anyone in the =w offices in Bethesda or you prior to this tine. We are going to unke sann kind of survey, but we have the impins-sion that it nny be that still in the current files of the =.mm EE C ..u. j =l ._ q

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!=..= r m.. [..._..... k.- =-- p== '~F various offiwe. There nny be records going back to the Air days. We da't kncu whether that is true or not but @En certainly [Harolct) Jones, the Pecords Panagenunt Branch e Chief, suggested that nny be a possibility. Mr. Shapar: That very mil nny be so and I would certainly look for T_T.. them and I will reake my administrative staff available to you and they will search whenever you want to conduct the a u; survey. .m.__ 'zEr Dr. Trank: Well, I have got the basic things, probably sme central documents in the recards that we have but there must be a = lot of other things.... Mr. Shapar: Ict ne see if I can find that staff paper because I think

== I can renember going over to Hennessey's house on Saturday T' "l

== norning and I typed it up myself setting out the various options. Iet's see, that would have been around January

=

of 1970. This is the paper you ought to be looking for. ] Dr. Trask: Yes, I don't know whether I hate seen that one or not. n.; It could be in those Incords, yes, but I think it is not.

si But I think I would rewgnize it, so my guess is that I haven't seen it.

I don't Irake any reference to them in tha fcotnotes do I? z.3 =s Dr. m zuzan: That's a staff paper. ~g That was sent to him {Hennessey] to ask hbn to circu-Mr. Shapar: ' Yes. late it, so it muld be right around that tinn. That's tha period thatwuld be nest active'. That would be the. :- lt.T. _lZ starting date'because that gives you the analysis. -I am r sure there were other papers following pretty closely. --

== = Dr. Trask: After we talked-to Malsch I went.back and 1 coked into some M of the earlier things that I hadn't looked at because when I wnt into the records that we have I really went into the early '70's but nuinly in tenns of tiu developnent of

==

the regulatioris that were published first in June and then again in De mber. I don't think I have seen that, but ncw I will go back' and Icok for it specifically. Ibw the records we have are spotty. I am far from b3ing convinced 7.- that we have all of them. I think that the records that E =.%- L2% bMM. g..

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.__ -, - ~.- <- -- f:e:== 3 -._ =EE .== .w= we have Dick Hewlett and his pcqale sort of separated out es based on what was purely regulatory and those were, shipped to hTC but when we talked to Dick Hewlett recently, he m_ indicated that he had sone stuff on Calvert Cliffs. So may 2.me be that things like this are still in the records that are e now part of the TOE records. ~] Mr. Shapar: Do you plan to talk to Hennessey and Eculen? Dr. Trask: Yes, yes. 1_

==ss Mr. Shapar: They were certainly two key actors in churning the...

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=. Dr. Trask: Hennessey has an office...

== = Mr. Shapar: I am sorry,Hennessey and Raney is what I neant. Hennessey, Z I am not suru has an office anynore but he lives in Bethesda ] ... on Honeyhull Iane, that's not far fr.um here as a

== notter of fact. I am sure he would be willing to talk to

=

you about it. Raney is another key actor at the highest [ levels of the agency. You might try to sound him out on his =_ dealings with Jackson. I think it kould be interesting. -== Don't attribute it to ne please. a.s Dr. Trask: Do you have any other points you want to raise? 5 =_ Mr. Mazuzan: We have covered everything we had in mind. We obviously 7-have to go Inck and do sone nore paper research but that is one of the ideas behind these interviews is to tell us

== where else we might go to seek out infonration. Mr. Shapar: One of tln things, if I were in your shoes, that I would look for would be what options the conmission considered in deciding how to go about inplenenting NEPA. =.. .... l Dr. Trask: And that paper in February 1970 was the first to lay out ~~~-' the options? Mr. Shapar: I think so, at least my rt. cards would. indicate that, be-T cause a previous short one, that is the bill that we are starting to analyze and the next thing is the paper. = Another person, of course, would be the environnental lawyer who won the case, 'Ibny Ibisman. He could give you Tf an outside perspective and an environnental perspective Z which I think would be useful for any dispassionate analysis of the situation. He is the fellcu who took the ABC on ~~-

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C = =,. in this area and won the case. So in terms of getting a feel of hcra other people think or ratinr people who are not just in-Iruse,I think that would be valuable. I =_m., think another connent I'd trake is that I think it is clear

==~ from the prorrotional orientation of the AEC that tir focus =j in terms of the Agency's reaction to that statute was not sad hcra they could better protect the environm2nt, but lua -~ licensing wouldn't be held up. Ncra, if there is a theme, T I think in fairness that is probably a major thene. The C effort wasn't to go out and protect the environment the a best way possible. The orientation was to see hcra the

==4 inpact wouldn't disrupt the licensing procedures. M a Dr. Fhzuzan: That is often overlooked I think, maybe... =i E=d Mr. Shapar: It is a basic ~ point.

==E

== 1 Dr. Mazuzan: That was a Irajor mission of AEC, to continue to license reactor facilities so I cbn't see hcw it would change G any... 7 m Mr. Shapar: It really wasn't the basic, mission of the regulatory staff Ea s at least. Dr. Mazuzan: Right, right. N

ra Mr. Shapar:

The basic mission was to protect the public health and Z safety. I guass another noral would be lua to react faster to new directions in the public will. =

== m _=_. Dr. thzuzan: ... scrrething which the AEC didn't really have to concern C itself about though until the late '60's. Am I right? si

== 1 Mr. Shapar: Well, I think another thing you can do, is you can assum .??? .there was a sort of syrrbiotic relationship between the Z joint comnittee, a very In*erful conmittee... its directions and hcra the directions of the AEC.... You =

==- could look at what the joint armittee did during this -M period. I think that you could rationally assum that what the AEC was doing would not differ Irarkedly frem the =. way the joint conmittee was pushing. aa _1 Dr. Mazuzan: Yes, tlicy have been labeled as the board of directors ~ U for the AEC. Do you think that that is a characterization

== 1 that is appropriate?

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tr..... ii2T . t.7 '" . :. ~:: Mr. Shapar: Well, it is rrore conplex than that, but they providcd the .. =; noney and they are extrencly powerful and the bureaucracy sEs has not been krmn to survive by antagonizing that kind "Z of congressional ammtittee. E.g Dr. Trask: Well, I don't have any other questions, do you George?

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