ML19312E911
| ML19312E911 | |
| Person / Time | |
|---|---|
| Issue date: | 05/15/1980 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| Shared Package | |
| ML19312E906 | List: |
| References | |
| SECY-80-219, NUDOCS 8006180142 | |
| Download: ML19312E911 (49) | |
Text
1 g.
g c b t.
- 3 I
UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
(
4 PUBLIC MEETING 5
DISCUSSION OF SECY-80-219 - COMMISSION REVIEW PROCEDURES 5
6 R
I Nuclear Regulatory Commission N
Room 550
]-
East West Towers Building h
10 4350 East West Highway Bethesda, Maryland z=
Thursday, May 15, 1980 The Commission met, pursuant to notice, at 2:05 p.m.
3
(
l BEFORE:
E 14
- 4 JOHN F. AHEARNE, Chairman of the Commission U
JOSEPH M. HENDRIE, Commissioner PETER A. BRADFORD, Commissioner NRC STAFF PRESENT:
E LEONARD BICKWIT l
?
-l 19 1
g HOWARD K. SHAPAR WILLIAM SHIELDS l
1 21l
^
1 22 I l
1 23 l 24l l
1
^
25 ;
800618 )
ALDERSON REPORTING COMPANY. INC.
2 4
1 PgQQgEQlEQ{
2 CHAIRMAN AHEARNE:
This afternoon we begin a discussion 3
of some issues which I expect we may continue discussion of in
(
4 future days.
I assume that the large crowd that is here gathered
=
5 to hear it indicates a great expression of interest on behalf 5l 6
of many people in the subject.
R 7
Back in December, I asked the General Counsel to see X
8 whether there are some new approaches he could suggest to d
ci 9
increase the Commission -- that is, the Commissioners as a z
h 10 Commission -- involvement into some of the many major actions E
j 11 that the NRC takes.
The ones that I suggested he examine were is l
12 the NRR agreement that a licensee is ready for a IPRNL, NMSS j
(
g 13 agreement that an applicaht for mill tailings or waste repository a
l 14 is ready for a license,: an I and-E decision that construction or g
15 operation of a fuel facility or reactor should be stopped or
=
g 16 restarted, an I and E decision that other major enforcement
- d 6
17 l action should be taken.
}
18 l I was interested in having the General Counsel explore c
h 19 j ways in which the Commission might participate more directly in n
20 those actions of the Commission.
I recogni::e in many ways that 21 it's a somewhat, perhaps, academic subject to be addressing.
But C
22 l I think it -- I hope that this af ternoon we can, at least, get 23 '
seme of the ideas discussed, perhaps get some Commissioners'
)
i 4
24 views on the subject, and possibly lead then to asking the General 25l Counsel to explore further a few of the approaches or some I
ALDERSON REPORTING COMPANY, INC.
3 4
1 additional approaches.
2 Len?
3 MR. BICKWIT:
Thank you, Mr. Chairman.
What we f
4 intended to do in the paper we've given to the Commission is e
5 not to map out the details and specifics of the various options h
3 0
that we pose but, rather, to paint them with a very broad brush R
7 and get the -- with the hope that we could get some expression Al 8
of interest in some, lack of interest in others, and then go to 4c 9
work on those that the Commission is interested in exploring f
,z j
10 further.
II I think the easiest way to proceed would be to simply in
[ 12 go through the paper, from page -- the bottom of page 4 on, 3
I 5
13 where we've listed the options, acknowledging that we've had the x
l 14 help of the various staff offices that we've paraphraJed in the g
15 first four pages.
Also, OPE has suggested an additional option z
j 16 and we could get to that in time.
- d h
I7 i The first option that we've posed is -- relates to z
{
18 uncontested licensing decisions.
And we've suggested that the C
19 Commission might want to delay the effectiveness of those 20 ;
decisions so that when staff is ready to license a given facility 2I or activity they would come to the Commission before the license 22 is granted.
Now, this is what the Commission is now doing with 23 :
respect to power reactors.
Our view -
and I guess we'd be 24 l prepared to recommend this at this time -- is that the Commission 25 ;
continue to do what it's doing as far as uncontested proceedings I
ALDERSON REPORTING COMPANY, INC.
4 I
are concerned in the power reactor area and give some thought 2
to expanding that concept to other licensing decisions.
As to 3
which cther licensing decisions you might want to expand to, 4
we' re not prepared to make hard recommendations, but you might 5
consider going through the other kinds that the Commission has,
{
6 or, alternatively, simply come up with the nation, subscribe to R
b 7
t3e notion that where significant new policy questions are K
j 8
raised in areas other than power reactor licensing, that the d
}".
concept that you're now using for power reactor licensing would 9
o 10 be used.
!kI CHAIRMAN AHEARNE:
How would you propose to strike it f
I2 the definition of "significant new policy questions".?
S
(
5 13 MR. BICKWIT:
I think it would be difficult to get a
]
14~
specific.
I think you either want to come up with specific h
15 issues, if there are issues that you want to look at, or z
if 16,
license -- or specific categories of licensing decisions that v5 i
I7 you want to look at.
But if nothing occurs to you as being an
}
18 exception from the norm, then the best way to go about it is P
I 19 '
3 to have some kind of vague language that signals to the staf f n
20 that when the staff feels there is a significant new policy 2I question involved that the Commission hasn't heretofore taken 22 a position on, that they come to the Commission.
23; CHAIRMAN AHEARNE:
But you would see in that particular 24l case the similar approach that we've taken so f ar on the review i
25 i
of North Anna, Sequoia, that approach?
I ALDERSON REPORTING COMPANY, INC.
i
5 O
I MR. BICKWIT:
Yeah.
Or, alternatively, if you adopted 2
this concept of the significant policy issue, staff would come 3
to you simply with that issue, rather than the broad-based 4
approach that it generally takes when it comes up before the 5
Commission on power reactor licensing.
]
6 And I think probably in the future, well, you might R
7 want to consider pulling back from what you've now got in power Xl 8
reactor licensing and leaving it with issues that the staff d
d 9
].
considers to be,significant.
10 CHAIRMAN AHEARNE:
Hmm.
That would have to have in
=
g 11 some sense the conclusion that currently the staff on seeing a I
I2 significant. issue does not bring it to the Commission.
(-
S 5
13 MR. BICKWIT:
I think that is the case.
I don't
=
l 14 believe that staff has received the message that in any un-g 15 contested licensing proceeding where they see a significant
=
j 16 policy issue they ought to come up to the Commission before W
I7 issuing the license.
=
I think pre-TMI the staff just went ahead C
19 and exercised its delegated authority and issued the license.
20 CHAIRMAN AP3ARNE:
Well, no, I was really focusing 2I more on the question of a significant policy issue.
And I would 22 i
hope that independent of whatever stage we are in the process 23 of discussions, that if the staf f identifies a significant i
24l policy issue, that by definition of it being a significant policy 25 I issue, th at they raise it to the Commissicn in any event, even i
ALDERSON REPORTING COMPANY, INC.
6 I
in the absence of a decision on this approach.
That's what --
2 that was my point.
3 MR. BICKWIT:
Well, I think whether they do or they 4
don't, I -- I don't think the signal from the Commission has been j 5
clear on that point.
And what we're proposing is that it be 0
clear.
R 8
7 COMMISSIONER BRADFORD:
Can you give an example of a A
0 significant policy issue that might arise in an uncontested dd 9
licensing for the Commission to resolve?
3 MR. B7CKWIT:
Any issue that would arise in a contested
=!
II proceeding, that --
is f
I2 COMMISSIONER BRADFORD:
Well, but let's see.
S
(
5 13 MR. BICKWIT:
You're talking about emergency planning, mj 14 that no one's bothered to contest the license and the question g
15 is how f ar out are you going to be looking.
x d
I0 MR. SHAPAR:
Interpretation by a board that differed as h
I7 from the common position of the staff and the applicant in what I
=
18 is otherwise an uncontested case, where the board simply doesn't 19 g
agree with the common position in an uncontested case of the 20 staff and the applicant might be -- it might involve --
I COMMISSIONER BRADFORD::
Well, okay.
22 MR. SHAPAR:
If they disagree it might involve a 23 '
policy matter.
24 COMMISSIONER BRADFORD :
I'm really trying to look l
25 i backward and pick up a specific case in which something like I
l l
ALDERSON REPORTING COMPANY, INC.
7 4
I that has happened.
And does it, does it ever happen?
2 MR. BICKWIT:
Well, the Commission generally doesn't 3
see the uncontested licensing. record.
4 COMMISSIONER BRADFORD:
Okay.
But ELD might. be aware 5
of cases in which --
3 0
MR.'BICKWIT:
Oh, I see.
R b
7 MR.'SHAPAR:
I have'a' feeling that there have been, M
k 0
but I -- I just can't recall one offhand.
d" 9
~.
MR-CA3E:
I can think of one case.
I think in Zion, 10 shich was an uncontested case, it was pointed out for the first II time that the Commission has no quality assurance regulations.
m f
I2 That was an uncontested case.
The first case --
9
'(
5 13 COMMISSIONER BRADFORD:
m I4 MR. CASE:
I think it was a CP.
n 15 COMMISSIONER BRADFORD:
And who pointed it out?
I0 3
MR. CASE.
The licensing board.
as h
II l MR. SHAPAR:
So it could happen.
SCH:
At the same time, the staff had criteria l9 l g
rAder development.
Rien the board asked for the criteria, they 20 were readily available.
So it was more that they weren' t ofhicially available but they were under development and being 2I 22 used in an informal way.
23 CHAIRMAN AHEARNE:
Ed, can you think of a case that i
24l would fall into the question that Peter asked, some significant 25 policy issue that has to be decided?
t ALDERSON REPORTING COMPANY. INC.
8
)
e 1
MR. MAL /lSCH:
Well, I guess the answer I'd give, the 2
licenses that you have been looking at, because of the signifi-i 3
cance of TMI, that it intervened when the case was -- after the 4
case was uncontested, now, that's probably an unusual case, l
=
5 that's -- but there would be significant issues on --
h j
6 COMMISSIONER BRADFORD:
Right.
Of course, the Rg 7
problem --
l 8
MR.
SCH:
I think it's less true than not that d
=i 9
there would not be.
i h
10 COMMISSIONER BRADFORD:
The problem of definition
!!!j 11 doesn' t arise in those cases, because they're all before the 8
i y
12 Commission, anyway.
25
(
y
'13 MR.MAfSCH:
Yes. -
m l
14 MR. SHAPAR:
I just thought of one.
It goes back a E
2 15 long way.
I think it;was an uncontested case.
And it involved' 5
g 16 a reactor in Arkansas called Seaford.
And the hearing board as y
17 said that because of the large amount of German stock interest 5
18 in the company the company was dominated by an alien.
The
=
19 Commission promptly reversed it.
)
l 20 COMMISSIONER BRADFORD:
That does sound like' history.
21 CHAIRMAN AHEARNE:
Yes.
22 COMMISSIONER BRADFORD:
That came to the Commission's 23 l attention how, Harvey?
Was it appealed?
24 MR. SHAPAR:
I think the staff appealed it pretty 25l fast.
t ALDERSON REPORTING COMPANY, INC.
9 1
(Laughter) 2 CHAIRMAN AHEARNE:
Was the plant built?
3 MR. SHAPAR: 'What's that?
It was a demonstration
/
4 breeder -- except it never did breed.
e 5
MR. HANRAHAN:
No, it was a physics safety reactor, 5l 6
to test the Doppler coefficient capacity at the time of three R
7 reactors built by General -- sponsored by the General Electric 2l 8
Company, and not a power unit.
dd 9
MR. CASE:
Another example, I think, I think the first z
h 10 icecondenser plant was licensed in an uncontested case.
That El 11 might have been something the Commission would have been 3
y 12 interested in.
3 13 MR. BICKWIT:
All right, shall we move to the next?
(
5m l
14 Is -
".I guess with respect to each of these we'd like c
g 15 to ask the Commission whether there's any interest in exploring z
j' 16 it further.
M d
17 CHAIRMAN AHEARNE:
I guess I'd be interested in 5
5 18 exploring -- we have an ad hoc approach that we're taking now,
=
h 19 and I would like to see if we can' t get a little bit more 20 specific, both so that we know what the procedure is and the i
21l staff would know what the procedure is.
I'd also be interested 22 in seeing what other types of licensing actions might be appro-t i
23 !
priate to fit under that.
One that obviously comes to mind:
24 l assuming at some stage the Commission will get to licensing i
25 j
'a high-level waste repository, I would imagine that's going to ALDERSON REPORTING COMPANY, INC.
10 I
be a contested case.
But --
2 MR. BICKWIT:
I would imagine.
3 Item two deals with contested cases.
And here we dis-4 cuss in concept what you've pretty much got in hand with respect
=
5 to power reactor licenses -under Appendix B of Part 2 of the h
j 6
Rules, the modified adjudicatory procedures.
Our recommeadation R
R 7
is that,i on this one is that, nothing be done until we get a K
j 8
look at how that appendix operates in practice.
We have had no do 9
experience with it.
To. extend this. concept to licensing i
h 10 decisions other than power reactors is not something we'd j
11 advise at this point.
We're not entirely clear we'd want to 3
y 12 advise continuing with.the Appendix B.
Until we see how it S
(
5 13,
works, we would urge that the Commission simply defer discussion m
I l
14 of this one till it has some practice.
2 15 I guess we might further say, with reference to the E
~
f 16 tbtoe-member commission boards -- be inclined to react negatively w(
17 to that concept.
It is -- if it's adopted as spelled out here, 5
{
18 where the ultimate authority resides in the full Commission, k
19 then you've just got another layer of recommendation and, I would R
20 say, an excess of proceduralism.
21 Until -- at this point, that's -- until you -- until 22 the reorganization plan goes through, legally you can't do other i
23l than that.
Once the reorganization plan goes through, you can i
1 24 i
' establish these three-member boards and make them --
l 25 i CHAIRMAN AHEARNE:
Because we can delegate --
i h
ALDERSON REPORTING COMPANY, INC.
11
)
i I
MR. BICKWIT:
And then delegate to them the final 2
decision.
Then the problem is created how are you going to i
3 decide who should serve on these b'oards.
And I think it's 4
probably more trouble than it's worth.
5 CHAIRMAN AHEARNE:
Now, I guess what you're saying is 0
that as far as any contested case -- is that? -- you would R
b 7
recommend we defer?
A k
0 MR. BICKWIT:
We recommend deferring any further werk d
9 on this option until we have some experience with Appendix B.
zo h
10 CHAIRMAN AHEARNE:
Well, why don't you go on to your
=!
II others.
3 fI MR. BICKWIT:
A'll right.
On option three, what we're c
(
j 13 driving at here is the opportunity to confer with the staff a
i
- e E
I4 prior to the docketing
.,f che application for a CP or an OL.
t j
15 We think there is some mileage to be got. in that recommendation',
=
I0 is that the Commission can help to shape' the staff position in a v5 h
I7 i contested proceeding or its review in an uncontested proceeding.
=
{
18 And we think the Commission ought to take advantage of that l
C h
I9 I oppor tunity.
o 20 l CHAIRMAN AHEARNE:
How do we know it's a contested l
2I proceeding if it hasn' t been docketed?
MR. BICKWIT:
You won' t at that point.
But even if 23 !
it is, there are no bars to the Commission consulting with the 24 staf f at that point in the process.
And I don't think the nature of that consultation would be affected by whether it's I
ALDERSON REPORTING COMPANY. INC.
j
0 12-i l
1 going to be a contested proceeding or an uncontested proceeding.
2 It's just that, the point we're making is that, it's -- if you 3
want to get further into the licensing process, this is a time 4
at which you can do it without legal difficulty.
And I think 5
j there is some fruit to be borne through the use of this pro-4 3
0 cedure.
R b
7 What we had in mind was some kind of a Commission M
j 8
paper coming up here, when the applicat. n came in, raising d
c; 9
issues that the Commission might be interested in and simply zo h
10 exploring -- presenting the Commission with the opportunity to
=
5 Il explore, in a meeting or through whatever means considered a
y 12 appropriate, the positions that the staff would be taking in 5
(
5 13 the licensing proceeding.
m h
I4 CHAIRMAN AHEARNE:
Does the staff have its positions n
g 15 that well firmed up prior to the docket?
z E
I6 l MR. BICKWIT:
No.
I think.
But let staff speak for d
I II itself.
But --
Well, the staff doesn' t have a position.
9 h
I9 The staff's position, of course, is the environmental statement i
n 20 and the staff's safety analysis.
This is merely an acceptabili-2I ty -- to make it a little bit more with respect to tb adequacy 22 of the application, so the staff will be in the initial stages I
23 of review.
24 Of course, the other side of the coin is that some 25l things may stick out like a sore thumb during that acceptance i
l ALDERSON REPORTING COMPANY, INC.
13 o
I review and perhaps the Commission in that kind of a situation 2
might want to provide some guidance.
3
.MR. CASE:
I think it would be very unusual if at that i
4 point in time the staff would be prepared to identify anything g
5 significant.
S 5
6 And I'd add to that we've alreaar been criticized R
}gvi L.L.
b 7
by Mr. Babel-for not getting notices of opportunity for a X
0 hearing on applications out within, I don't know, ten days or dd 9
seven days or something like that, he gave us this, obvictisly -
,z 10 CHAIRMAN AHEARNE:
But after docketing.
=
k II COMMISSIONER HENDRIE:
On the other hand, if you take 3
f I
three months, if you take ti.ree or four months, to docket in c
(
13 order to-time more time in'the.Occe.ptance review, to shake down a l
14 summary of what the proposition is in the application, in order g
15 to bring a paper to the Commission and then allow some time. for z
E I0 the Commissioners to digest, then have a briefing meeting and as h
I7 discussion, it'll run up from a month-odd classically, well, x
II month or two classically, closer to three or four, and then, I E
I9 g
daresay, that will --
20 MR.'BICKWIT:
That won't satisfy.
2I COMMISSIONER HENDRIE:
-- that will raise some 22 questions.
i I
23 l MR. SHAP AR:
One question that might be raised if the 24 Commission's role is very prominent in that pre-docketing pro-25{
cedure is that maybe the Commission has developed a predisposed i
i ALDERSON REPORTING COMPANY, INC.
14 I
bias.
I would anticipate such, some sort of charge like that 2
being raised.
3 CHAIRMAN AHEARNE:
Except that I'd hardly anticipate 4
there would be any problems then.
g 5
MR. SHAPAR:
Well, legally there's a defense.
But one 8
f can rightfully anticipate a charge being made --
6 R
7 CHAIRMAN AHEARNE:
Yeah.
N]
8 MR. SHAPAR:
-- depending on how prominent the role d
d 9
is.
E.
h 10 COMMISSIONER BRADFORD:
Well, we ' d have that same 5
Il problem on enforcement actions, even some we've undertaken 3
y 12 recently.
3
(
5 13 l MR. BICKWIT:
It's -- it -- I really don't think you Q
l 14 -
m 5
have to tailor your decision on this one to meet that particular 15 point.
Whether other points dissuade you, I think, is --
x g
16 COMMISSIONER BRADFORD:
Let's t'ake the case Marty M
{
17 mentioned a moment ago, or some parallel to that, that is, the h
18 :l
=
first icecondenser plant.
Even acknowledging all the points cs I9 g
that Ed has made, is there a category of issues sufficiently n
20 different dnat it might be useful for the Commission to --
2IlI MR. CASE:
Well, let's take the icecondenser plant.
i 22f I can't imagine the Commission doing much more than say "Look 23 '
at that very carefully."
24 (Laughter) 25 '
COMMISSIONER HENDRIE:
And, Peter, when the i
i ALDERSON REPORTING COMPANY, WC-
15 I
icecondenser application came in, for D.C. Cooke, that was after 2
a period which must have been two or three years in duration in 3
which Westinghouse had first proposed the concept, discussed it t
4 with the staff, developed -- there were several iterations of 5
deve.lopment of further analyses; the ACRS had looked at it; j
6 there had been a testing program, at least the first round of 7
results, and maybe a fairly decent, you know, tolerably complete Kl 8
set of experimental results from the prototype that Westinghouse dd 9
set up at Waltz Mills were in hand; and the ACRS had rendered a.
.Z S '10 letter saying subject to the customary caveats, why, we think g=
II this is a concept that can be implemented in a way that will a
g 12 allow a plant to be built and operated witliout undue risk, et 9
(
13 5
cetera.
So that even at the time that it came in, it wasn't
=
l 14 that it was a brand-new, out of the clear blue, and nobody knew g
15 what to make out of that proposition.
I think the Commission a
j 16 would -- you know, you could hear what the staf f had to say vi h
I7 about their analyses of it during this preliminary review of z
18 the concept phase.
And I suspect we'd have said, "All right, E
II g
well, you know, pay careful attention to it as it comes along N
in the further detailing."
2I COMMISSIONER BRADFORD:
No, that sounds right.
22 MR. CASE:
The ACRS had a similar concept; they tried 23 it out.
They wanted the staff to present the preliminary report 24 to them on the important aspects of it, so it worked something i
25,
like that, early on in their review.
And it just turned out to i
ALDERSO_N REPORTING COMPANY, INC. _ _. _, _ _.
16 1
be boiler plate.
It j us t --
2 COMMISSIONER HENDRIE:
About all you could do was to 3
swamarize pieces out of the application.
4 MR. CASE:
Yeah.
It never seemed to work.
And we
=
5 don't -- it was, in fact, dropped after a while.
5 6
COMMISSIONER HENDRIE:
There are an assortment of,-you 7
know,; things connected with new system concepts, certainly.
]
8 safety-related ones, but even somewhat different plan concepts.
i dd 9
An application could come in with one or another of those in it, i
h 10 and you could take note of it and have a briefing on it and find E
i 11 out what the staff knew..about it at that point, but it'd y
12 probably be rather too early to be giving strong thrusts one I
13 way or' another.
A'nd --
m l
14 MR. BICKWIT:
How about a siting issue?
2 15 COMMISSIONER HENDRIE:
Well, I was going to say --
s y
16 MR. BICKWIT:
A peculiar site.
W g
17 !
COMMISSIONER HENDRIE:
The siting, I was going to raise Y
5 18 one that would be interesting.
Suppose, you know, a little E
19 while down the line here, why, we get an application from the R
20 Updike Power Company and it turns out they've got a contract, or i
21 '
a beginning one with options-to buy a couple of barge-mounted 22 plants from daat outfit in Florida and, you know, they're going i
23 l to tow them up the coast and then a river and dig them in there I
24 and they're going to take account of the sort of things that 25 l our final environmental statements on the -- the generic ALDERSON REPORTING COMPANY. INC.
17 I
environmental statements noted.
And that'd be very interesting.
2 But I'm not sure exactly what -- what you do with it other than 3
say, "Well, watch it very closely."
You know.
" Work hard, be 4
diligent, alert, loyal, courteous."
5 CHAIRMAN AHEARNE:
I guess what the problem I had with 0
the option was, I couldn't really see what substantive informa-R b
7 tion would be there for us to address from the standpoint of Xl 8
establishing policy.tt the -- this pre s tage.
I could under-dd 9
stand that from the legal aspect there was an advantage, because I
h10 it was a case where we clearly weren' t getting involved in the
=
Il complications of the staff, parte, ex parte, et cetera.
But I m
y 12 couldn't see where we would be making a real contribution.
5
(
5 13 On the other hand, if you could construct it in such
=
l 14 a way that -- I think it probably goes back to the same point g
15 you made earlier: when new policy issues are involved, th& t 's
-z d
I0 the time.
And I would guess that --
h II MR. BICKWIT:
Well, then, let's say you've got a siting E
18 proposition and it's not clear how the Commission reads its rule A
g" 19 as to whether -- how that rule is going to impact this applica-20 tion.
I would think the Commission can give some useful guidance II at that point.
22 CHAIRMAN AHEARNE:
Or, at least, f ace directly the 23 fact that its rule isn' t very clear, yes.
24 MR. BICKWIT:
That's right.
25f COMMISSIONER HENDRIE:
Or it can find out from the i
ALDERSON REPORTING COMPANY, INC.
18 I
staff what its rule meant.
Or at least what the staff thinks 2
it meant.
3 MR. BICKWIT:
Right, what the staff thinks it meant.
4 And then if the Commission agrees, then the -- wherever the e
5 Commission agrees with the staff it's not terribly -- a terribly h
j 6
useful exercise; we would just simply be wasting time..But R
7 there might be circumstances where there was a disagreement.
l 8
CHAIRMAN AHEARNE:
Right.
I think it would be d
Q 9
interesting and important, useful, when there -- if there is a
,z h
10 new policy issue, to have it come to the Commission in this j
11 early stage rather than waiting through the whole long process a
y 12 of the filing, the hearing, the appeal board, and then we meet E
(
13 it and find we disagree with it.
!.14 COMMISSIONER BRADFORD:
Is there any precedent for a
g 15 advisory opinions at any level of this agency, the General a:
d 10 Counsel or the Commission?
A l
6 17 l MR. BICKWIT:
Yeah, aren' t there General Counsel's
{
18 opinions from time to time?
E 19 MR. SHAPAR:
Yeah, but I think in the context of an g
20 adjudicatory proceeding my answer would be the request for a 21 certified question to come up.
If we want advice we can ask 22 the board to certify it.
23 Now, one of the things you might investigate is to 24 make it easier for a party to ask that a certified question 25 ;
come up to the Commission.
I l
l ALDERSON REPORTING COMPANY, INC.
19 1
COMMISSIONER BRADFORD:
.I'm actually thinking of an 2
earlier stage in the process, where if there were an ambiguity 3
in the siting regulations, or anything else, it's conceivable,'
4 actually, that the applicant would want to try to get that clear
=
5 before proceeding wit h a formal application at all.
U 6
MR. CASE:
Yes.
As a matter of fact, I think that's R
d 7
essentially what happened on the -- what was that --
Kl 8
COMMISSIONER BRADFORD:
Sears Island.
Sears Island d
9 is the one that came to mind.
Yeah.
10 MR. CASE:
Yeah, right.
E j
11 COMMISSIONER HENDRIE:
And we had, in a rather -- in m
y 12 an informal way but nevertheless quite a clear one, when American
/-
5g 13 Electric was contemplating the plant which is now in abeyance m
l 14 for the present, a scheme where they proposed to carry clear y
\\
g 15 through to a construction permit and then they were going to x
g 16 decide whether they were going to build it or not.
And they
^
I 6
17 !
thought it prudent to ask for an audience and to come in, and E
l
{
18 they explained to us that although they were going to file an P"
19 R
application and had every intent et the time of driving all the 20 way on through the hearings and everything else to a constructior 21 permit, they wanted it clearly understood they were prepared to 22 invest much money and then make the decision whether, indeed, 23!
they'd build a plant.
They just wanted us to know that, you 24 l know, so that we weren't fooling each other and we wouldn't i
25 l later.on say, "How come you didn't tell us you weren't bound and I
i ALDERSON REPORTING COMPANY. INC.
.20 I
determined to do it?"
And I think one of the things they were 1
looking for was assurance that the Commission staff would take 3
that application seriously and process it with all the vigor 4
that we ought to process an application, even though we knew g5 very well that the corporate decision at a later time could be j
6 "No, we aren' t going to use this thing."
R b
7 But there are already these other mechanisms.
The way X
8 the Sears Island one went and the way, in this case, they simply d
k 9
came and said, "Let us please talk to the Commission and explain 2
10 what we 're about. "
So that I don' t know that it -- that further
=
II
-- a further structure needs to be erected.
3 f
I2 COMMISSIONER BRADFORD:
Well, from the little -- few s
'(
5 13 conversations I've had with Central Maine Power executives, they
=
l 14 wouldn' t hold the Sears Island one out as the model of a way to
[
15 get a resolution, though, whether that was their bull or ours
=
j 16 I don't know.
W h
I7 f CHAIRMAN AHEARNE:
What was the Sears Island case?
E 18 l MR. CASE:
They, essentially, wanted to know whether I9 '
g a fault caused by a glacier, as distinguished from a fault, a n
20 techtonic f ault --
2I i
COMMISSIONER BRADFORD:
Yeah, I think it was movement 22 in the fault, but --
23 f MR. CASE:
-- would be disqualifying under our i
24 criteria.
The criteria were -- it just said f ault without any 25 indication of if people had thought of this.
Aqd they talked to i
l ALDERSON REPORTING COMPANY, INC.
21 I
us then and they got a staff on this.
And then it seems to me 2
that they weren' t satisfied with that and they wanted to --
3 COMMISSIONER BRADFORD:
Well, as I remember it, and my 4
memory is fuzzy, too, their claim is that they were initially
=
5 encouraged to ao ahead,. then somehow the USGS got involved, the
!]
6 staff switched signals; they would up petitioning for a rule-R 8,
7 making to try and get a definition of exactly what was a capable X
k 8
fault; the staff recommended that the petition not be accepted; d
d 9
and Central Maine would up giving up and turning to coal plant
,Z h
10 and feeling pretty disgruntled about the process they had been E
5 Il through.
f I2 MR. CASE:
- Well, I, frankly, think it was more because 5
(~
5 13 they didn't like the answer, rather than --
a l
14 COMMISSIONER BRADFORD:
It may well be.
It may well n
s 15 be.
I don't know.
I really never have known it well enough to j
16 have a view.on that.
as l
I7 COMMISSIONER HENDRIE:
Well, I think they felt that a
!E 18 from thei:c standpoint, in view of the investment involved in E
19 proceeding on down the line, that they were unwilling to proceed 20 on the basis of a reflection of the staff view at the time, but 21 the staff felt that a reasonable case could be made by Central 22 Maine, and that if 'it were that the staff could support it, that 23 ;
the f ault was not capable within the meaning of Part 100.
I 1
1-think Central Maine said, you know, " Boy, is there a lot of 25 '
room betwixt lip and cup in that proposition, and before we put ALDERSON REPORTING COMPANYulNC.
22 I
the bucks in and go for it and, you know, commit that that's the 2
way we're going to get that chunk of power, why, we'd like to 3
have it a little clearer than thct."
And their thought was why 4
don' t we just fix up the Part 100, Appendix A, section there.
5 And then when we wouldn' t do that, why, they said, "All right, h
0 now we won't play."
R*
EAPE 2 S 7
MR. SHAPAR:
I think there is a policy issue here, and X!
O I want to focus on it.
That is, the present system really lis-d
]".
courages and frowns upon getting a question up before the Commis-9 10 sion.
The boards aren' t inclined to do it.
The appeal board
=
II isn't inclined to do it.
it f
I2 So if what you're thinking is, if there's something 3
13 !
I j
important that a party, whether it's the staff or any other 14 party, if there's a significant question that arises on which k
15 they'd like to go to the Commission, the way,the present system i[
I6l is set up, it discourages it.
So if your inclination is to make
)
^
\\
I7l it easier to go to t?r Commission to get advice on what any IO l 5
party thinks is a significant issue, the rules will have to be g
changed.
And they can be changed in lots of ways.
In fact, it 20 could be done without a rules change by simply having the Commis-2I i
sion monitor any requests that a question be certified up, and 22 if they are interested in it, without any change in the rules at i
23l all, they can reach down and grab it.
So that's another option, 24 MR. BICKWIT :
But then you grab it with the adjudica-25 l tory restraints on you.
And the advantage here is that you have l
ALDERSON REPORTING COMPANY, INC.
23 I
the free flow of discussion without regard to those constraints.
COMMISSIONER HENDRIE:
Yeah, but you also have that 3
free flow at such an early time --
4 MR. BICKWIT:
I think that's the question -- whether 5
it's useful.
6 COMMISSIONER HENDRIE:
that you don' t get -- you
,n R
7 7
don' t -- you haven' t then by that time had the benefit of --
a j
8 MR. BICKWIT:
I don't think they're mutually exclusive.
d d
9 In fact, our next option deals with this particular point.
But I
I do think that there could be occasions where Commission z
II guidance at that early stage could be of benefit.
But what I'd d
12 sugge.st is that we sit down and explore it with Ed and others, z
9
(
j Howard, further and see whether we're dreaming.
But it doesn't l
14 seem to me that we ar'e.
2 15 On the next item, we would recommend against the wz Commission ruling on all intervenor contentions, as being some-h I7 thing that is just too big a bite, given other duties that the z
IO Commissioners have.
A g" 19 With respect to having significant or novel contentions 20 coming up to the Commission, this is the kind of thing that I 21 think Howard was suggesting and the kind of thing that was 22 i sugges'ted in our appeal board study, which you'll be hearing from 1
23 l!
us on shortly.
So I would recommend that you defer on this one 4l until we summarize for you the comments on that study.
25 CHAIRMAN AHEARNE:
Let me ask you a question which l
ALDERSON REPORTING COMPANY, INC.
24 I
puzzled me.
You say here that formal hearings wouldn't be 2
initiated until the Commission had ruled on the contentions, 3
thus permitting the Commission to consult freely with the staff.
4 MR. BICKWIT:
You could have a radical change in your 5
rules, which we believe would be consistent with the statute.
j 6
We would have to do further research on that question.
R 4
7 b
CHAIRMAN AHEARNE:
You mean that you see an opening?
3l 8
Jump in, Len.
Don't hold back.
d d
9 MR. BICKWIT:
It's by no means clear.
But it would be
,2o h
10 very foreign to anything that's -- to any system that's been
=
5 Il practiced around here.
3 f
I2 CHAIRMAN AHEARNE:
Well, go to it.
c
(
13 COMMISSIONER HENDRIE:
Do you want to outline it in l
14 30 seconds for me?
g 15 MR. BICKNIT:
Well, what you'd have --
d I0 CHAIRMAN AHEARNE:
He may talk himself out of it.
Be M
I7
- careful, e
3 IO (Laughter)
E I9 g
MR. BICKWIT:
Just basically, you'd -- you'd have all 20 of the pre-hearing activity prior to the issuance of a notice 21 of hearing, and you would -- you would argue that under the APAs 22 the curtain does not come down until there's been a notice of a 23 hearing or knowledge that -- if a hearing will, in fact, take i
24 place.
The legal deficiency is, there would be situations where 25 l everybody, as a practical matter, will know that there's going i
l ALDERSON REPORTING COMPANY. INC.
25 I
to be a hearing.
2 CHAIRMAN AHEARNE:
Well, the fact that there are con-3 tentions, some people, obviously, know.
4 MR. BICKWIT:
Well, it's always possible that none of e
5 5
the contentions would be found to be -- to justify a petition h
0 for intervention.
So that you don' t have totally certain' 7
knowledge.
It would be -- it would be a stretch.
And we are Xl 8
not advocating it at this point.
But --
d d
9 COMMISSIONER HENDRIE:
What would you do with cps,
,2 10 where the law says have a hearing?
E:
II MR. BICKWIT:
Well, we'd say that what the law says is a
g 12 there has to be knowledge of a contested hearing before the S
(
5 13 curtain comes down.
a l
14 COMMISSIONER HENDRIE:
I see, n
g 15 MR. BICKWIT:
And I think that's probably what was E.
j 16 intended.
- d h
II CHAIRMAN AHEARNE:
He's probably as far as you can z
5 18 take him without him coming out against it.
Please give him a 5
19 little leeway so that he can continue exploring.
20 COMMISSIONER HENDRIE:
Well, let's see.
Could we --
2Il could the staff complete its safety evaluation report before 22 docketing?
How about that?
23 l p5V Ny MR. BICKWIT:
I don't think Mr. Bebel would be too 24 happy.
Unless he's simply concerned about the post-docketing 25 '
number of things.
0 i
ALDERSON REPORTING COMPANY, INC.
26 1
COMMISSIONER HENDRIE:
Well, it would sure cut the 2
review time.
3 MR. SHAPAR:
Until a few years ago, the notice of 4
hearing didn't go out until much later in the process.
Part of
=
5 the reform of the process was to notice the hearing much earlier h
j 6
and to get the pistol off and get the process started.
R 6,
7 CHAIRMAN AHEARNE:
Well, I would like to explore it A
l 8
a little bit more, because it does again look like another way d
si 9
the Commission might get more directly involved on some sub-z h
10 stantive issues.
E 11 MR. BICKWIT:
- Fine, is f
12 Item five really it a more extreme solution than item S
5 13 two, which we've urged you to defer on; it follows that we would m
h 14 urge you to defer on item five until we get a look at how g
15 Appendix B works.
g 16 On item six, we throw that out for consideration with-as(
17 out, I 'think, deferring entirely to the Commission and former 5
!5 18 members of the ACRS who might have a better idea of whether this E
19 would be useful.
20l CHAIRMAN AHEARNE:
The inner section means you.
21 MR. BICKWIT:
Yeah.
We --
22 f COMMISSIONER HENDRIE:
I'm going to be compelled to i
i 23 read this thing after all.
24 CHAIRMAN AHEARNE:
This is page 7, number six.
25 MR. BICKWIT:
The Executive Legal Director has pointed l
I ALDERSOM REPORTING COMPANY. INC
27 I
out a possible ex parte problem regarding communications by the 2
ACRS to -- with the Commission.
And we agreed there is one --
3 CHAIRMAN AHEARNE:
ilow is that?
4 MR. BICKWIT:
-- under the current rules.
g 5
MR. SHAPAR:
Your current rules.
9l 0
i MR. BICKWIT:
Yeah.
R b
7 MR. SHAPAR:
Which is not to say they could not and K
g 8
should not be changed.
d d
9 CHAIRMAN AHEARNE:
And which aspect of the current z
8 10 rule would lead to this problem?
e 3_5 k
II MR. SHAPAR:
Ex parte rule'says that no party shall it y
12 communicate with the Commission about an issue -- the merits of 4
(
g 13 an issue; and the Commission won't entertain from anybody -- it a
h I4 daesn' t,say a party -- communications on the merits.
g 15 CHAIRMAN AHEARNE:
I see.
Yes.
m d
I6 MR. BICKWIT:
But under the statute we think there's vi f
I7 room for --
x
{
18 CHAIRMAN AHEARNE:
Yeah.
Does the ACRS come under ch I9 3
the general umbrella of the Commission?
n 20 MR. BICKWIT:
No.
I 2I MR. SHAPAR:
What do you mean " general umbrella of 22 the Commission"?
23 !
CHAIRMAN AHEARNE:
OBE does.
OGC does.
\\
24 l MR. SHAPAR:
You mean as a Commissio,n staff office?
25 CHAIRMAN AHEARNE:
Yeah.
i ALDERSON REPORTING C OMP/NM7M
28 1
MR. SHAPAR:
I think not.
/
2 MR. BICKWIT:
The statute prohibits communications 3
with the Commission or employees of the Commission.
And we would 4
read that as not including the ACRS.
The relevance of that is, e
5 as you may remember, once an employee communicates with an h
j 6
outsider then he can communicate with the Commission itself.
Rg 7
I would like to get your reaction to whether it would Al 8
be valuable to have more constant contact with the ACRS on a d
d 9
particular licensing proposal.
Yg 10 (Pause)
E 11 COMMISSIONER HENDRIE:
Well, I don ' t know, there might d
12 be some useful places.
As a general proposition, t: go over i
z 5
(
y 13 every case with the ACRS -- you're going to have five people sit m
E 14 down on one side of the table and talk collegia 11y with fifteen a
C 15 people speaking collegially on the other side, and I daresay N
a 16 that -- you know, my God! --
3 A
i 17 j CHAIRMAN AHEARNE:
Yeah, we had a couple of those 18 meetings.
5 I
19 I COMMISSIONER HENDRIE :
-- you know, in great public 8n
\\
20 display, with onlookers hanging intently on every word, and 21 there are now 20 of us at the table asking questions, making 1
22
' comments, giving answers, all in phrases carefully couched for 23 '
the circumstances, and the communication flow, it's a cumbersome 24 proposition.
It's not like the great days of yore.
25 ;
CHAIRMAN AHEARNE:
Well, currently, when a plant comes I
i i
i ALDERSON REPORTING COMPANY, INC.
l 29 I
I up, le t us s ay, that on our system it has gone through the l
1 2
' board system and it is now up before us on the system we have, 3
no license can issue until we -- are we precluded from having l
l 4
someone from the ACRS come and answer questions in this, in that
=
5 open meeting?
h 3
0 MR. BICKWIT:
No.
That doesn' t --
R b
7 MR. SHAPAR:
No.
You can do anything on the record.
X l
8 The parties have a chance to rebut.
So you're in sort of an d
y 9
adjudicatory mode.
And the question is how you're going to 2og 10 change that within the --
E Il COMMISSIONERHENDRIEf:Well, wait.
Do you have to be I
12 in -- you know, is the ACRS member going to have to present 5
(~
y 13 testimony and stand cross-examination?
a l
14 MR. SHAPAR:
I think you can arrange it so they don't u
g 15 have to, by changing the rules appropriately.
m E
10 CHAIRMAN AHEARNE:
I mean, you might look at -- I could W
h I7 see a value in -- I think I'd like to use a working assumption E
3 18 that the Commission will pass on the issuance of the operating k
19 license.
Now, at that stage, I would imagine, one of the things 20 that would be useful, if there's anybody around on the ACRS who 2I remembered that plant, to be able to, you know, have them address 22 whether they have any -- whether any of their -- what were their 23 )
outstanding concerns and how they may have been met or not met.
24 l MR. BICKWIT:
Did the ACRS have any reaction to this 25l might be -- that might be useful.
I i
i ALDERSON REPORTING COMPANYo INC,
30 I
CHAIRMAN AHEARNE:
Yes.
2 MR. SHAPAR:
I would point out there's a larger problem 3
here that kind of has something to do with almost all the 4
options that hasn't been mentioned.
And that is, you've got a 5
formal process and what you're struggling for is kind of an l
6 informal process --
R R
7 CHAIRMAN AHEARNE:
Yes.
M l
8 MR. SHAPAR:
at the same time.
d d
9 z,
CHAIRMAN AHEARNE:
Yes.
o h
10 MR. SHAPAR:
Now, if you develop that kind of an
=
II '
informal process and the Commission wants to do something a
f I2 different as a result of that informal process than what's S
5 13 transpired during the formal process -- for example, it thinks a
14 of a new condition that no one else has thought of, or that no le h
15 one else has wanted, and this appears at the end of the informal m
j 16 process -- as a matter of law, the applicant is entitled to
)
s I
h I7 !
litigate it and get a hearing on it.
=
18 So I think this is something that you need to keep in P
"g 19 i
)
mind.
20 CHAIRMAN AHEARNE:
Ed.
2I MR. CASE:
I'd just like to reinforce what Howard said 22 earlier.
You also ought to look just as' hard Qithin the present j
23 adjudicatory process of picking up novel questions early.
I have l
24 the impression, as the lawyers seem to have the impression 25 there's a fertile field outside the adjudicatory process, I have l
ii ALDERSON REPORTING COMPANYo INC,
31 I
the impression that there's a fertile field within it right now-2 and there is a considerable discouragement of having questions 3
come up.
4 CHAIRMAN AHEARNE:
Well, one of the --
e 5
MR. CASE:
You're working just the opposite in the hl 6
other area.
R 7
CHAIRMAN AHEARNE:
Yeah.
But what we are -- we're in Ml 8
the process of setting up a system whereby the more interesting d
9 or selected cases are being tracked to find out what is going 10 on.
And I would expect that in those cases that are being E
11 tracked, when one of those issues comes up it will be called 3
f 12 to our attention and we may very well at that stage take it up.
3
(-
5 13 So, yes, I --
a h
14 MR. BICKWIT:
Yeah, and I agree also.
In our appeal g
15 board study, that's what we focused on.
That's really why we a
j 16 haven't focused on it here.
w N
17 CHAIRMAN AHEARNE:
All right.
Now that we have NRR
{
18 '
especially concerned, let us move on down.the table.
ch 19 g
(Laughter) n 20 ;
MR. CASE:
Let me say one more thing.
I,
- frankly, 21 like the approach that you've alluded to several times : rather 22 than doing anything routinely, if you key it on significant 23 '
issues, or some words, 'I think it's a much better system and f
I 24 you'll get much more out of it.
Rather than routinely look at 25l anything.
I ALDERSON REPORTING COMPANY, INC.
32 I
MR. BICKWIT:
All right.
Our first option on the 2
enforcement actions -- and I should say most of what we 've got 3
to say in this section would apply to NRR and NMSS enforcement 4
actions -- the first suggestion, which we would recommend with 5
j some, perhaps some. caveat, is that the delay between submission 9{
6 and action with respect to enforcement action be expanded to ten e'.
7 days.
And you might provide for circumstances where if in the a
j 8
view of I&E or NRR or NMSS it was impractical to wait for ten d
q 9
days for the Commission to take a look at the thing, that you zo h
10 would not have to abide by a ten-day rule.
But we would assume
=
II that in most circumstances ten days is something that the public 3
y 12 in'terest can live with.
~
5
(
j 13 MR. SHAPAR:
Doesn' t that kind of depend on whether or
=
l 14 not the order -
if they want to make the order immediately
_b g
15 ef fective or not.
If they want to make the order immediately
=
d I6 effective, presumably, the reason for doing it is the public w
h 17 health and safety is being threatened.
So I can see a ten-day E
IO period in connection with an order that's not immediately I
O I9 g
effective.
And, on the other hand, I think the policy considera-20 tions might work the other way, on the other, other category.
II MR. BICKWIT:
Well, all I can say is, I think there 22 will be a lot of times when we sant to make ordern immediately i
23[
effective where we're willing to wait for ten days in order to 24l do that.
When we make something immediately effective we're 25 making the value judgment that we don't want to wait for a year's f
l i
ALDERSON REPORTING COMPANY, INC.
33 I
adjudicatory hearing before imposing these requirements.
We ' re -
2 not necessarily making the judgment that it's got to be done 3
and done tomorrow.
4 MR. SHAPAR:
I'm looking back on actual cases.
And g
5 many of the cases that I recall, where the staf f wanted to issue 8]
6 an immediately effective order they. thought there was an honest-R 7
to-goodness immediate threat.
Ml 8
MR. BICKWIT:
And in those circumstances, in those dd 9
2, circumstances they ougnt to be. allowed to do it.
h 10 We're just saying that the norm ought to be ten days
=
5 11 rather than what it is now.
I'm not sure what it is, two days B
p 12 o r --
5 y
13 CHAIRMAN AHEARNE:
I thought there was three days, E
I l
14 frankly, I was suprised that --
m C
15 MR. BICKWIT:
Three.
I thought it was three days, too.
g x
y 16 MR. THOMPSON:
It 's the third working day from the d
i N
17 '
issuance of the --
5
{
18 CHAIRMAN AHEARNE:
Yeah, but it says two days here, P
g 19 !
that's what I was --
n I
20 MR. THOMPSON:
Well, there's an elapsed time of two 21 days.
The day it's issued counts as the first day.
So that 22 there's an elapsed time of two days.
23 :
COMMISS.'.3NER HENDRIE:
Why go clear to ten?
24 l MR. THOMPSON:
I would point out also --
25 ;
MR. BICKWIT:
You have a number of options included I
I I
ALDERSON REPORTING COMP ANY. INC.
34 r
I within the ones we've listed.
2 MR. THOMPSON:
I would point out also that GAO has 3
criticized us rather severely in that particular regard, in a 4
previously issued report on enforcement.
e 5
COMMISSIONER HENDRIE:
Yeah.
Their view is, we ought j
6 to slam right and let the Commissioners --
R b
7 MR. THOMPSON:
The Commissioners should not be M!
6 involved, in essence, was the GAO position.
dc 9
CHAIRMAN AHEARNE:
That was a different branch of the 10 GAO than the one that had another report that said we should be Il more involved.
I I2 COMMISSIONER HENDRIE:
The -- a situation like an a
(
j 13 enforcement action, like a lot of other situations in the
=
l 14 agency, may be likened to a leaky condenser: that is, you can
[
15 charge it up, but the charge leaks off rapidly; and if you have
=
d 10 some interest in having the notice of the enforcement action and i
d 1
(
I7 l the awareness of it be in cerms of the Director's letter to the x
{
18 applicant from an NRC -- a public statement on the subject, why, h
19 !
g well, your chances of being able to have that af ter ten days are n
20 considerably poorer than they are af ter two or three or maybe 21 four.
So I think I am not sure that all the arguments run out 22 to extending and having the thing lay around the Commission 23 '
offices for a couple of weeks.
24 CHAIRMAN AHEARNE:
What about five?
25 COMMISSIONER HENDRIE:
Well, let me ask, how badly are ALDERSON REPORTlWG COMP ANY, INC,
l 35 i
I we pressed,over shorter times?
2 CHAIRMAN AHEARNE:
We 1, it depends on how you do the 3
counting.
If you do the counting that the day it co"nts starts 4
when it gets dated in Bethesda.
4 COMMISSIONER HENDRIE:
Then a day to get downtown 3
6 g
and a day to get through the mail room and --
n 7
b CHAIRMAN AHEARNE:
That's right, and the third day it A
g 8
is --
d d
9
}
COMMISSIONER HENDRIE:
Yeah, and you're reading it and 10 j
you're just saying, " Hey, wait a minute," when, all of a sudden,
=
II zap, there it goes.
3 f
II (Laughter) c
(
I MR. SHAPAR:
I might point out that the greater the E
14 g
number, of days that you pick makes for an exponentially greater
=
g 15 opportunity for lobbying on the part of the hurtee.
16 i
CHAIRMAN AHEARNE:
Only if you believe that the hurtee W
h f
will know about, will find out about th at.
m 18 MR. SHAPAR:
No lawyer worth his salt in Washington 19 8
doesn' t know ahead of time when the staff is getting ready to n
20 let loose with an order.
j CHAIRMAN AHEARNE:
Well.
22 i MR. SHAPAR:
It's not the way it should be, but it's l
23 the way it is.
CHAIRMAN AHEARNE:
I guess I live a protected life:
I 25 ;
7,ve never been lobbied.
l ALDERSON REPORTING COMPANYe INC.
36 I
MR. SHAPAR:
I made the point.
2 CHAIRMAN AHEARNE:
Hm?
3 MR. SHAPAR:
I made the point.
4 COMMISSIONER HENDRIE:
Well, we're a very -- all us e
5 open agencies, you know, we have a great deal of trouble keeping h
3 6
these things internally.
R
- S 7
MR. CASE:
Well, it's not so much people telling them.
3l 8
You can tell by the way the agency starts to act.
d y
9 MR. SHAPAR:
Whether a Case answers his phone.
I mean, zo 10 there's so many ways you can pick it up.
3_
5 II (Laughter) 3 g
12 CHAIRMAN AHEARNE:
I would assume that the Commis-a
(-
s 13 5
sioners will stand f ast in the face of any such lobbying.
m l
14 MR. BICKWI_:
Well, there's also the factor-that
.j 15 from time to time a Commissioner will ask a Commission staff
=
g 16 office to take a look at the package and put something together, I
f 17 l and it's a little cramped with a three-day --
=
}
18 CHAIRMAN AHEARNE:
" Touch up that, Bickwit."
P g
j9l<
(Laughter) l 20 MR. BICKWIT:
That's a question of what.you want to 21 use Commission staff for.
But, I mean, assuming, assuming the l
22 ;
Commission wants to use Commission staff that way, that ought to 1
23l be taken into account.
l 24l CHAIRMAN AHEARNE:
All right.
Well, I guess I'm more 25 inclined to a little longer, certainly when I take into account ALDERS ON REPORTUNG COMP ANY. INC.
$$ hs\\
37 (3:00 p.m. - Commissioner Bradford returns)
I the mail system.
But we are not going to ma'ke a decision.
2 COMMISSIONER HENDRIE:
Before we leave this one, do
(
3 you call people these days on every enforcement action?
4 fuw _
Clearly not every enforcement action.
5 Every civil penalty, it seems to me, I have had to call.
The 6
office has had to call.
7 MR. STELLO:
If there is anything that I consider to 8
be significant enough to call, yes.
But getting up to where 9
there is a civil penalty, a sensitive issue -- I'mean all the 10 cases that come to mind, I don't believe any of them fall in 11 the two-day rule, two weeks.
12 (General laughter.)
13 MR.. STELLO:
Whatever time is needed is taken on more
(
14 significant enforcement actions.
There is no real two-day l
15 rulings.
Yes, I call up when this looks like an issue that is 16 going to take some time, and take whatever time.
.A lot of the routine on civil penalty is on an over-ehposure in a hospital, 17 18 a radiographer, $5,000.
It gets the usual
-a).
In 19 fact, I have got almost no -
for the most part, 20 anyway.
It seems that that would just cover the system more 21
-- (inaudible).
22 COMMISSIONER HENDRIE:
John, that was my impression, 23 that where there were big chunks or significant issues, that 24 your office got a call.
It didn't depend on the mail.
Your 25 office got a call, and if you said wait a minute, I want to ALDERSON REPORTING COMPANY, INC.
5O
~
38 L
1 know more, that put the hold on.
2 MR. STELLC All of the office.
3 CHAIRMAN AHEARNE:
I am talking about when we 4
actually get sent the package. Most of these which are EN's, 5
we are not that interested.
We see the EN and it goes 6
through.
But there are some in which the package itself is of 7
interest, and that is good.
8 I am interestd in some kind of a window because I 9
think Vic has to have an ability to go ahead if nobody puts 10 any kind of a hold in that window. But on the other hand, to 11 avoid on every package that might come down saying, well, 12 wait, I think I would like to try to ensure that we have a 13 l,
reasonable period of time to look at that.
I think that is 14 what Len was trying to get at.
l 15 But on most of them, I have no problem with the-l 16 current system, the ones that come down on the EN notice, and I'7 it is quite adequate.
18 MR. STELLO:
I think the real issue is have I missed 19 some that turned out to be pretty significant or important for 20 one reason or another, I -- (inaudible) -- make the calls and l
l 21 get them to work out --
22 CHAIRMAN AHEARNE:
For example, I am not sure if when 23 Len wrote this it was being driven by it, but certainly when I 24 read it -- on the South Texas case, the time period between 25 when we actually physically got t;.e package of order in hand ALDERSON REPORTING COMPANY, INC.
..e
~,
39 l
1 and I had asked Len to take a look at it and the length of 2
time he had to do it, the tufnaround time got to be very 3
short.
Part of that was with the clock, I guess --
4 MR. STELLO:
Yes, but we just added the time to it as 5
necessary anyway.
6 CHAIRMAN AHEARNE:
I know.
7 MR. STELLO:
We just delayed it.
There is no problem 8
doing it when it is needed.
But the shorter that gets, the 9
easier it is to make sure that we can get the action out and 10 have the impact it wants to have.
I hate to see the system --
11 we are not trying to push it --- to get the time we take the 12 enforcement to be closer to the time that occurs, and have 13 another system that pushes the other way.
You wind up where
(
14 you go through the stop sign and you get a ticket six months 15 later. We have got a lot of those already.
16 CHAIRMAN AHEARNE:
Although we are really talking i
17 about one or two days.
18 MR. STELLO:
All of the ten days add up.
19 CHAIRMAN AHEARNE:
Yes. Now, ten, I think, is too 20 long. But I am not trying to bring us to a decision.
21 MR. BICKWIT: It has obviously got its discomforts.
22 CHAIRMAN AHEARNE: Yes.
23 MR. BICKWIT:
The question is, to what extent does 24 ' the Commission want to involve'itself in a matter that it is 1
25 not now involving itself in.
l ALDERSON REPORTING COMPANY,INC,
9 40 1
t CHAIRMAN AHEARNE: I think I would like to explore 2
this, at least on packages, shen we actually end up looking at i
3 the package, to have a period of time. I think ten days is too 4
long, but you might take into account that one of the purposes t
5 of that review is to turn to you or to Hanrahan and say would 6
you look at this.
7 MR. BICKWIT:
The second recommendation is that if we
{
8 could single out some categories of significant enforcement 9
actions, that the Commission itself would have to approve 10 those before they would go.
This presents the considerations' 11 that have just been raised on the first option in spades.
12 CHAIRMAN AHEARNE:
That is probably more 13 appropriate, though, addressed in the context of the
(
1-4 enforcement policy that is being developed, because you have 15 to identify what is significant.
16 MR. BICKWIT:
Right.
17 CHAIRMAN AHEARNE: I think that is an interesting 18 option to look at, but I think it would fall more naturally 19 into the enforcement policy where we are trying to lay out 20 categories of seriousness of offense.
21 MR. BICKWIT:
Just so long as the issue is dealt it 22 at some point.
I think it is something the. Commission ought 23 to consider.
Part and parcel of that option would be Option 24 3, where options would be presented.
25 Option 4 we recommend against for the reasons i
ALDERSON REPORTING COMPANY,INC,
(
41 l
1 previously mentioned.
2 Option 5 is really the same as Option 1 except it is t
3 more formalized, perhaps imposing some additional obligation 4
on the Commission to look hard at what comes up.
5 CHAIRMAN AHEARNE: In practice we are doing that 6
informally.
7 COMMISSIONER BRADFORD:
You are not as part of that, 8
then, suggesting that the abuse of discretion standard l
9 that applies to 2206 be carried over.
10 MR. BICKWIT: I wouldn't suggest that, no. We were 11 simply suggesting that something on the order of the 2206 12 review commission would be used. It needn't be identical in
~
13 all respects..
(~
1-4 CHAIRMAN AHEARNE: But as you point out, it would 15 require much more significant review requirement as far as our 16 staff is concerned.
1'7 MR. BICKWIT:
It would suggest that the Commission 18 would be looking hard at staff enforcement actions.
19 MR. THOMPSON:
I don't understand number 5 20 MR. BICKWIT:
Number 5 is really the same as number 21 1, Dick, in concept. It simply puts it in the rules.
22 CHAIRMAN AHEARNE:
But it also, I think, at least as 23 I read it, would then have a formal process in which every 24 time an enforcements package is to be made, it is sent down, 25 and you, and I would guess it would be OP, would then review ALDERSoN REPORTING COMPANY,INC,
W 42 1
it in detail and prepare a formal Commission paper on'that 2
review.
3 MR. THOMPSON:
Before it went out?
4 MR. BICKWIT:
That's right.
5 (General laughter.)
6 MR. THOMPSON:
Ten days become twenty.
7 MR. BICKWIT:
That's right.
If the Commission is not 8
happy with the ten-day of number 1 --
9 CHAIRMAN AHEARNE:
Dudley, their proposal in 5 is 20 10 days, you're right.
11 MR. STELLO:
I hope you are prepared to add about 100 l 12 people to your staff to.do that.
You would need an awful lot 13 of --
14 CHAIRMAN AHEARNE: At least for myself, I am not l
15 prepared to go to number 5 16 COMMISSIONER BRADFORD:
Do any of these options focus 17 on what seems to me to be a potentially as or more significant 18 set of items, namely, situations in which the decision to take 19 no enforcement action is a signficant policy?
20 MR. BICKWIT:
Yes, the next couple of options.
21 COMMISSIONER BRADFORD:
But the first five --
22 MR. BICKWIT:
The first five don't.
23 COMMISSIONER BRADFORD:
The first five don't, so that 24 they don't really involve the Commission at all in what may be 25 the most crit'ical set of decisions.
i i
ALDERSoN REPORTING COMPANY, INC,
)
43 1
MR. BICKWIT: Now, Option 6 would'have the Commission 2
itself making some of.the enforcement action decisions under 3
2206.
This has been done.
It would propose some kind of 4
routine in which a given category of enforcement actions would 5
be decided by the Commission. Obviously the staff would be 6
assisting the Commission in m' king its decisions, but the a
7 understanding would be that a given 2206 request would be 8
answered by the Commission itself.
9 MR. SHAPAR:
The Commission itself, of course, in the 10 past decided to act itself -- (in?.udible) 2206.
11 MR. BICKWIT:
That's right.
12 MR. SHAPAR:
But the Commission could do it under the 13 existing system.
k.
14 MR. BICKWIT:
Certainly.
15 Also, I guess included within this option is the 16 proposals for modifying 2206.
It has been proposed from time i
17 to time that petitions for review of 2206 denials be allowed.
18 They are not presently allowed.
The Commission recently 19 decided not to allow for them, but this is the kind of thing 20 that is raised by Option 6.
21 I would say also raised by Option 6 would be the idea 22 of chan61ng 2206 so that the abuse of discretion standard is 23 abandoned. We have recommended against petitions for review.
24 We recommend in favor of. changing the abuse of discretion 25 standard, although we don't really regard it as a serious ALDERSON REPORTING COMPANY, INC, mm..
h
~
44 1
impedimentin its present form.
2 CHAIRMAN AHEARNE: Because of the flexibility of 3
interpretation?
4 MR. BICKWIT: That's right.
5 MR. SHAPAR:
Because 2.206 allows you to control the 6
staff's effort when it is making its initial --
7 CHAIRMAN AHEARNE:
Yes.
8 MR. BICKWIT:
And then Option 7 is really in answer 9
to the hypothetical that raised this paper in the first place, 10 I believe, where.it would be understood that in appropriate 11 cases the Commission would decide when an order was satisfied 12 and when to lift it.
13 CHAIRMAN AHEARNE:
Which is basically what we ---
(
14 MR. BICKWIT: I.think the way you can implement that 15 is if you buy any of the earlier options, then the Commission 16 will have a look at enforcement actions going out, and they 17 can adjust them or staff can understand that staff should 18 adjust them so that the Commission is consulted on the lifting 19 of the orders.
20 CHAIRMAN AREARNE: Which is what we just went through.
21 MR. BICKWIT:
That's right.
22 MR. SHAPAR:
Of course, if a hearing is demanded, thej 23 hearing board will decide the matter, at which initially, with 24 the Commission getting into it at the end of the process if 25 the process is structured that way.
l ALDERSON REPORTING COMPANY,INC,
}(
45 V
I 1
MR. BICKWIT:
I am talking more in terms of an 2
immediately effective. order which provides by its terms that 3
it be lifted by the Commission, which was the case with Marble 4
Hill.
5
. CHAIRMAN AHEARNE:
I think there are a number of 6
things that you have to explore further and work on.
7 MR. BICKWIT: I think Ed might want to speak to the 8
option that he raised.
9 MR. HANRAHAN: I sent that to everybody but myself.
10 Do you have a copy?
11 A Commission review of exemptions, which has been 12 somewhat informal in the past, is being made more formal.
13 Again, it would turn on the matter of what is substantive and
(
14 signficant and would probably have to be dealt.with by finding 15 with the Commission and staff -- (inaudible).
16 COMMISSIONER HENDRIE:
Those can get to be a pain in 9
17 the neck.
Licensees typically discover in mid-Friday 18 afternoon that they need an exemption to permit operation for 19 two more weeks with a certain specimen holder, with a specimen 20 or vessel material that is going to run beyond some time or 21 under some time or something or other, and to try to scrape up 22 commissioners and explain it all in the last hours of business j 23 is something I have been through a couple of tLnes.
24 CHAIRMAN AHEARNE: Peter, do you have something?
25 COMMISSIONER BRADFORD: No.
l l
ALDERSON REPORTING COMPANY, INC,
/ a 46 1
CHAIRMAN AREARNE:
Ed, I guess I didn't really see 2
that at the moment as being an area where we were going to --
3 COMMISSIONER HENDRIE:
I would rather treat it on a 4
more general basis.
That is, periodically, maybe a couple of 5
times a year, ask the Directors of Reactor Regulation, I&E and 1
6 NNSS to come down and spend an hour summarizing what 7
exemptions from the regulations they have out currently and 8
what these were for and what some of the bases were, what they 9
see as likely to be needed, the same kind of thing in the next 10 six months or different, and have sort of a periodic updating 11 on how these things are going, but then leave to the directors 12 that Friday afternoon hurrah that comes up.
13 COMMISSIONER BRADFORD:
That makes perfectly good
(
14 sense in and of itself.
15 COMMISSIONER HENDRIE:
There was a time there when 16 questions came up, why as this being done, and we had some 17 discussions of various types of exeptions and so on that 18 helped for us to understand it and be more comfortable with in 19 and provide some guidance to the staff, as well.
20 COMMISSIONER BRADFORD:
The exemptions that concern 21 them were the type that cut across in one case as many as 20 22 plants, I guess.
23 COMMISSIONER HENDRIE:
Yes, there was that big one 24 for the Mark I.
25 COMMISSIONER BRADFORD:
As far as I know, there ALDERSON REPORTING COMPANY, INC.
c~wevcuYr;2m jnnxu.rrma svvvvwirwasnm a r2 c~;;rt c: ncm c vn.
/)
47 9
/
1 haven't been any like that that we haven't been aware of since 1 i
2 then.
So that procedure seeds to be working. Obviously, if 3
there are and we are not aware of them, then Ed's point --
4 CHAIRMAN AHEARNE:
I think a lot of these issues 5
could best be swept up in something that I hope Len would be 6
working on, which is the new policy issue question or 7
significant new issue, that that is the kind of a core screen 8
that I think we ought to try to set up to work on.
Those 9
issues would then come.
10 Ed?.
11 MR. CASE:
There is one more point in the enforcement 12 area that is slightly off point of your discussion, but I 13 think it is important. Anything that an office director brings
(
1-4 up here for discussion with the Commission, it tends to blur 15 towards the end of the discussion whose order it is.
16 It is an important consideration when you are sitting on this 17 side of the table.
I den't think you on the other side of the 18 table fully appreciate it.
19 CHAIRMAN AHEARNE:
Well, we may fully appreciate it, 20 and that may well be why it is blurred.
21 MR. CASE:
I have no problem with the consultation 22 process, but when it gets to the point where an office 23 director is fairly well directed what to put it the order and l
l
'24 it is contrary to what he comes up with, then the Commission l
l 25 ought to say "It is my order" and issue it itself.
ALDERSON REPORTING COMPANY,INC,
dh a
1 COMMISSIONER BRADFORD:
Those are enforcement orders?
2 MR. CASE:
Yes, within the general -- I would include 3
an NRR order in the same category. They are all called 4
enforcement orders.
5 CHAIRMAN AHEARNE:
I would like to move on to'other 6
items on this afternoon's agenda. So thank you very much, Len.
7 (Whereupon, at 3: 21 p.m.,
the meeting was concluded.')
8 9
10 11 12 13
(
14 15 16 "17 18 19
' 20 21 22 23 24 25 ALDERSON REPORTING COMPANY, INC, 300 7th STREET. S.W. REPORTERS BUILDING. WASHINGTON, D.C. 20024_(202) 554-2346
a,
.s 4
m(
This is to certify that the attached proceedings before the NUCLEAR REGULATORY COMMISSION in the matter of: Discussion of SECY-80-219 - Commission Review Procedures Date of Proceeding:
May 15, 1980 Docket Number:
Bethesda, Maryland Place of Proceeding:
were held as herein appears, and that this is the original transcript thereof for the file of the Commission.
Shirley Wolf Official Reporter (Typed)
(
k ! =' A ;
Official Reporter (Signature)
.