ML19318A214

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Transcript of 800604 Public Meeting in Washington,Dc to Discuss Action Plan.Pp 1-45
ML19318A214
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Issue date: 06/04/1980
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NRC COMMISSION (OCM)
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REF-10CFR9.7 NUDOCS 8006180628
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{{#Wiki_filter:[O l iGILL adm-1 (/ 1 UNITED STATES CF AMERICA b 2 NUCLEAR. REGULATORY COMMISSION 3 ( 4 PUBLIC MEETING = 5 DISCUSSION OF ACTION PLAN (POLICY STATEMENT) 5 g 6 a 7 Nuclear Regulatory Commission g Room 1130 l 8 1717 H Street, N.W. d Washington, D. C. d 9 i Wednesday, June 4, 1980 h 10 !!!l 11 The Commission met, pursuant to notice, at 10:15 p.m. it g 12 BEFORE: 5g 13 JOHN F. AHEARNE, Chairman of the Commission E 14 RICHARD T. KENNEDY, Commissioner 2k 2 15 JOHN HENDRIE, Commissioner 5 16 VICTOR GILINSKY, Commissioner g as ti 17 PETER A. BRADFORD, Commissioner 5li 18 NRC STAFF PRESENT: b 19 LEONARD BICKWIT I 20 M. MALSCH i 21 JOHN HOLYE 22 VICKI HARDING S E,2!SL ::ER "'1FY t 23 C-24 E. HANRAHAN \\ 25l K. CORNELL 800618062.7 j ALDERSON REPORTING COMPANY, INC.

l 2 1 CHAIRMAN AHEARNE: Good morning. This meeting first re-f 2 quires a vote to hold on less than one week's notice since the 3 meeting was announced on Thursday, May 29th. ( 4 Aye. = 5 COMMISSIONER GILLINSKY: Aye. H 6 COMMISSIONER KENNEDY: Aye. R R, 7 COMMISSIONER HENDRIE: Aye. X] 8 CHAIRMAN AHEARNE: The General Counsel will be alert d 9 during the discussion. If we get into areas where he believes 2 h 10 it would be prudent to raise the issue of whether to close the sl 11 meeting, he will raise that issue because we may get into the it j 12 question of litigation. Correct, Leonard? 5l 13 MR. BICKWIT:

Fine, m

l 14 COMMISSIONER BRADFORD: Litigation of what? 2 15 MR. BICKWIT: Litigation of cases, litigation strategy. j 16 COMMISSIONER BRADFORD: The point essentially is if the al g 17 Commission is foolish enough to adopt any of these proposals it E Ni 18 is likely to get its tail shot off in court and they do not want = 19 to talk about that in public. R 20 COMMISSIONER KENNEDY: Now that we have discussed it l 21 in public, maybe we could go on and discuss what it is we are 22 talking about.. 23 CHAIRMAN AHEARNE: First, there are two items, and I 24 do not know whether it is appropriate to raise them here and that 25 is pretty much up to you gentlemen, there are two remaining cleanup - l l ALDERSON REPORTING COMPANY. INC. j

3 j matters from the previous meetings on the action plan.

One, the secretary has ident.ified that going through all of those 2

3 pieces of paper there were a couple of things that were not clear 4 out of the transcript. And Sam has culled through the transcript = 5 and then tracked with the action plan memos and he has a memo 5 6 which outlines that gap'that has fell through the cracks. 7 And I do not know whether or not you would be prepared 8 to clear that matter this morning or not. John Holye. dd 9 MR. HOLYE: There is a memo before you dated this i h 10 morning that notes that. E 5 11 The memo is from the Secretary. It notes that the ($ 12 question has arisen with respect to specific Commission approval 3 13 of Decision Group A actions and Decision Group B actions as ( a l 14 listed in subparagraphs A and B of enclosure two. It was clear 2 15 at one point you had moved enclosure one at the first meeting. W j 16 And then at the second meeting there was some discussion of A and ad 17 B that indicated perhaps you were all saying that you had ap-b 18 proved A and B. E 19 But we haven't a vote of approval of that. So we R 20 are asking for clarification whether you intended to approve A 21 and B of enclosure two. 22 COMMISSIONCR GILLINSKY: You say hear you believe 23 approval of these sections cf the plan "was indicated by the 24 attitude of the Commissioners at the meeting." 25 COMMISSIONER KENNEDY: The expression. ALDERSON REPORTING COMPANY, INC.

4 4 1 COMMISSIONER BRADFORD: The expression I think it was. O CHAIRMAN AHEARNE: It was at the beginning of the meet-2 3 ing -- the decision group, Group A, it has been long enough weeks /" 4 ago too long, so that it would now be hard to remember if we ~ = 5 approved those in subgroups. I suggest we just let the record 5l 6 show clearly that was indeed the intent of the Commission. - Rg 7 COMMISSIONER KENNEDY: The record will show that I had X g 8 indicated-that in writing to the Secretary. dd 9 MR. HOLYE: Thank you. i h 10 CHAIRMAN AHEARNE: I would agree. 3l 11 MR. HOLYE: I do not hear any objection, it j 12 COMMISSIONER BRADFORD: I agree that they should be 5 5 13 included in the plan, in the approved form of the plan. m l 14 MR. HOLYE: Thank you. n 2 15 CHAIRMAN AHEARNE: Okay. And then the second item was 5 16 there was a remnant action from the first meeting that OPE j ad g 17 had been tasked to prepare a memo. And we are trying to find E 18 out what has been happening to that, That is a memo directing E 19 the staff to go to the licensing board. 20 And apparently that has never taken place and Ed has --- 21 COMMISSIONER BRADFORD: This is to prepare a draft for 22 the Commission. 23 CHAIRMAN AHEARNE: That is right. They were directed 24 to prepare the statement that --- 25 I The Commission had voted to direct the staff to 3o to ALDERSON REPORTING COMPANY, INC.

5 the licensing board. j 1 And that had never come'up. ( 2 MR. HANRAHAN: We had general agreements to submit --- 3 (~- 4 Commissioner Gillinsky had suggested an additional l 5 sentence to me this morning which would read to the effect that l 6 "The Commission will make a decision on the plan for completing 7 the items within Chapter 5 of the action plan by June 20th." As j 8 y u recall, Chapter 5 is the chapter which deals with actions for N' 9 the Commission such as management study, safety goal, several mi h 10 of the items which have not been dealt with by the staff, z h 11 CHAIRMAN AHEARNE: Well, I guess my comment would be a d 12 that still would fit similar to a point that Commissioner z Bradford had on action on --- 13 S l 14 COMMISSIONER BRADFORD: It was the same text. 2 15 CHAIRMAN AHEARNE: That fits within the general decision 5 16 framework out of that meeting. This was a specific item on the m ad i 17 staff to go to the Licensing Board. E \\ g 18 MR. HANRAHAN: On Chapter 5 at the last meeting you b ' directed General Counsel and myself to prepare a paper for dis-19 R 20 cussion. And the deadline that was given I believe is June 18th. 21 CHAIRMAN AHEARNE: Right. 22 COMMISSIONER KENNEDY: Wait a minute. That is the paper on which we are then to render a decision by June 20th 23 ; 24 according to the statement that Mr. Gillinsky has suggested, and I ( think wisely, be included in this memo. So I think the deadline 25 ALDERSON REPORTING COMPANY, INC.

6 for submitting that paper to us ought to be changed, like June 15th j (' COMMISSIONER BRADFORD: Well the difficulty I have is 2 3 that I will be away that week anyhow so'it would be easier for me if you would add about three or four days to the 20th rather r 4 than iiubtracting them from the 18th. = 5 E MR. HANRAHAN: It would be easier for me. 6 7 COMMISSIONER HENDRIE: I was. going to say unless you have a clear-cut --- j 8 N COMMISSIONER KENNEDY: I always believe in earlier 9 10 dates than later so I support your view, but on the other hand --- z h11 COMMISSIONER HENDRIE: Why don't we say the end of the 3 o 12 m nth or something like that? Is there anything that would make 3 that bad? 13 5 CHAIRMAN AHEARNE: I guess I would still raise the point g j4 a I am n t sure what that has to do with directing the NRR staff g 15 as 16 to go to the Licensing Board. i ,3 vi j7 COMMISSIONER BRADFORD: Why don' t we number then. one and b 18 D" ? j9 COMMISSIONER KENNEDY: %t this is a memo to the staff, k CHAIRMAN AHEARNE: I mean it seems to me that what 20 21 that is is the Commission voting and committing it self to make 22 a decision by a given date, which the Secretary can announce that the Commission has done that but I am not really clear what 23 ; 24 that has to do with NRR going to the Licensing Board. COMMISSIONER BRADFORD: It has nothing to do with them 25 l ALDERSON REPORTING COMPANY, INC.

7 going to the Licensing Board but since that Chapter 5 was. culled j ut by the staff, it simply would be a way of informing them, to b 2 the extent that they are not gathering it already, of the Com-3 mission's plan for dealing with it. 4 COMMISSIONER GILLINSKY: Well, it is part of our overall = 5 Il 6 response -- f7 CHAIRMAN AHEARNE: My only point is, Vic, that we have two memos. We have one set of memos coming out of that action 8 N P an meeting and then are Chilk memos saying the Commission has l 9 decided "x", "y"y "z", all of ~ these things. There was another one. 10 OPE was tasked to prepare a memo directing NRR to now 11 d 12 go back to the Licensing Board. That is what this memo is. And E! your statement it seems to me to fit completely within the first 13 g t l 14 rather than the second. I have no problem with a memo to the staff saying the g 15 m Commission has directed OPE or OTC "to come to the Commission g as g 17 by" -- and if we revise that to June 15th -- and by the end of E June the Commission will decide on those issues. That is fine, $i 18 i b that language. Is that okay? j9 I COMMISSIONER GILLINSKY: I think so if I understand it 20 21 correctly. It is just that in dealing with the entire package the commission should deal with all parts of it.' 22 ( 23 CHAIRMAN AHEARNE: That is fine. All right, is that 24 acceptable? 25 COMMISSIONER KENNEDY: Fine. ALDERSON REPORTING COMPANY, INC. .~

g j CHAIRMAN AHEARNE: Peter, is that okay? 2 COMMISSIONER BRADFORD: As to dealing with that, yes. 3 I,am still reading through the text of Ed's draft paragraph. I CONMISSIONER GILLINSKY: I have to say that I have never 4 ~ = 5 been overly fond of the words "necessary and sufficient". I am i j 6 hard pressed to think of exactly why. But I think we know where J l ( 7 it comes from, the mathematical --- Xl 8 CHAIRMAN AHEARNE: Some of us do, d d 9 COMMISSIONER BRADFORD: I picked it up.

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10 (Laughter.) 3 5 11 MR. HANRAHAN: It also came from the transcript there ej 12 was the same discussion. 3 COMMISSIONER GILLINSKY: Clearly this is what we think 13 S g 14 needs to be done and we are not doing more at this point. 2 15 It seems to me the right way to say it is "Having done E 16 this, we feel we are back in a more or less normal mode of opera-inW g 17 tion," whatever that means exactly. 5 13 COMMISSIONER KENNEDY: Is that business as usual? 19 COMMISSIONER GILLINSKY: Well, I don't want to get into R 20 that. We can discuss that separately. 21 CHAIRMAN AHEARNE: Would you have a preference? 22 COMMISSIONER GILLINSKY: I don't have one off the top 23 of my head. 24 MR. BICKWIT: If you say " appropriate", I think we are l 25 going to run into some trouble. l t ALDERSON REPORTING COMPANY, INC.

1 9 i COMMISSIONER KENNEDY: What do the regulations require? j j b 2 COMMISSIONER BRADFORD: Well, I have a problem with coupling the necessary and sufficient for the granting of an 3 r' operating license because I think that actually assumes the ques-4 tion 'that the rest of the meeting may be devoted to, that is, if = 5 3 it really is the Commission's position that these things are 6 7 necessary and sufficient, then you might as well issue the strict-est statement on relitigation that the General Counsel can imagin-l 8 N ably defend. 9 li h 10 I w uld have said they are a necessary and sufficient z h 11 basis for the staff position going" forward in licensing cases, 3 d 12 but I would not have said they were necessary and sufficient for Z the granting of licenses in cases where these same propositions 13 k 5 l 14 were still litigable. 2 15 CHAIRMAN AHEARNE: Well, then, perhaps we ought to -- 16 COMMISSIONER BRADFORD: I am comfortable with the 3 ad j7 necessary and sufficient if it is said as the basis for the staff b 18 going forward or for the issuing of licenses in uncontested h cases. But this language sweeps 2 little more broadly than that. 39 I 20 COMMISSIONER KENNEDY: Maybe we ought to go on and 21 discuss the other subject --- i 22 COMMISSIONER BRADFORD: And then come back to this? COMMISSIONER KENNEDY: -- and then come back to this. 23 24 CHAIRMAN AHEARNE: John? t. 25 COMMISSIONER HENDRIE: I guess I think we need the ALDERSON REPORTING COMPANY, INC.

10 necessary and sufficient language because we have struggled to y determine what should be done and in determining it also to C - 1 decide what coverage is enough; that is, both the necessary and 3 e sufficient. 4 I prefer the language as it is but I guess I won't object = 5 5 t something that Peter just suggested as "being necessary and l 6 sufficient," et cetera, et cetera, "for the granting of an 7 operating license in uncontested cases." I don't know quite what 8 that means but it seems to me that it means that if the plant 9 2i h 10 meets those requirements, it meets our current view of what the z jj statute and the regulations require and -- R COMMISSIONER KENNEDY: That is in an uncontested case, d 12 E But in a contested case, if I understand the language correctly, 13 (- 3m l 14 everything in the package then would be up for grabs if there 2 15 was a contest on anything else. E CHAIRMAN AHEARNE: I think we are shifting over into 16 BW j7 the second part of the meeting. Let me say that I think.we can b 18 do one of two things. COMMISSIONER HENDRIE: Go ahead. 19 CHAIRMAN AHEARNE: One of two things: either one, we 20 ] 21 can accept this language, which does track I believe to the words J that were use.d at the time the action plan was approved or at the 22 meeting that this came from. And it is just unfortunate that 23, it has taken so long to get it here. 3 ( 25 ! S we can either do that or, if you wish, we can 4 ALDERSON REPORTING COMPANY, INC.

l 11 postpone this and recognize that we will then get back to it I P after we decide what to do with the policy statement. But I 2 don' t think we ought to try to modify this -- 3 COMMISSIONER BRADFORD: Before we decide a plan? ( 4 CHAIRMAN AHEARNE: Yes. I think we either ought to e 5 5 endorse it as a reflection of the previcus meeting or else put l 6 it aside and wait to the end of this meeting. 7 COMMISSIONER KENNEDY: I am prepared to accept it as 8 9 a reflection of the previous meeting because the transcript 3i 2 h 10 makes it clear that is what it is. If wc are reopening the issue, Z jj however, obviously we have to go back and --- \\ CHAIRMAN AHEARNE: Vic? d 12 3 COMMISSIONER GILLINSKY: Well, in some sense our re-13 5 l 14 quirements at any time always are necessary and sufficient. It U 2 15 is just that this is new regulatory language. I don't think we 5 16 can use these sorts of words for - I mean we had a previous 3 a6( 17 meeting here and we did agree with that, but these are new words a h 18 in the regulatory scheme of things. = And I think I would have preferred some --- j9 MR. HANRAHAN: We in the Sequoia case decided that g 21 necessary --- COMMISSIONER GILLINSKY: I know that. Looking at the 22 ( 23, 25-year history of regulations and that singles these out for h some sort of different treatment and other things. And we have 25 had necessary and sufficient conditions for a long time, So I ALDERSON REPORTING COMPANY, INC.

12 think if somebody can suggest an alternative, I think I would pre-1 fer that. But I guess given that, I would go for your alternative ('~ 2 of discussing the other part of it first. 3 But I don't have a strong objection to this but I 4 w uld' prefer something that --- e 5 b CHAIRMAN AHEARNE: Leonard, do you -- j 6 e COMMISSIONER HENDRIE: Why don't we just dig in on the 7 p licy statement and sort of try to move fairly directly into the 8 N root issue there and sort of see where we stand on that and let's 9 z h 10 see what we are able to go back and say about this directive to z jj get the staff moving. E COMMISSIONER BRADFORD: That makes sense to me. d 12 E COMMISSIONER HENDRIE: We may also decide we need some 13 t a g j4 more meetings tomorrow or the next day and so on. w 2 15 CHAIRMAN AHEARNE: Let me move then to the policy state-ment. I guess I would like to start it by saying that once we 16 3 as 6 17 do manage to get a direction to the NRR to go to the Board, we 18 also ought to establish clearly any guidance thau we intend to E give tc the Board. And that plus enabling other people to know j9 R 20 what the Commission's position is, for example to make clear to 21 the Congress and the public licensees what our position is, those are the purposes of the policy statement at least as I see it. 22 23, I thought that we had as a Commission devoted a very i 24 . large amount of time to reviewing what new requirements we were ( 25 levying upon the licensees. And that goes back to the original ALDERSON REPORTING COMPANY, INC.

y j requirements that we initially laid on B&W plants, the require-(~~ ments that came out of the Short-Term Lessons Learned Task Force, 2 3 the requirements that came out of the Long-Term Lessons Learned / Task Force, the Presidential Commission, the Kennedy Commission 4 5 made a number of recommendations to which we responded in fairly = 3l 6 substantial detail, pointing out a number of things that we were 7 already doing and that we would do and the requirements we would X j 8 18Y ^* 9 We had a substantial review of operator training and 2f h 10 operator requirements and made a number of Commission decisions z h 11 on those. There is a very major effort that we tasked for a a 6 12 special inquiry group, which had another extensive review leading Z to additional or more completely detailed requirements. 13 \\ 5 l 14 And then we had a major staff effort, which was labeled 9 h 15 Development of the Action Plan. The Commission itself met many 16 times on the action plan. The office of Directors met on the -3 al j7 action plan. We finally have ended up saying here are the set of b 18 additional requirements that we balieve flow from the Three b Mile Island accident and its reviews. j9 k 20 It appeared to me that given that extensive period of 21 time that was devoted to reaching those conclusions, that there 22 ought to be then some additional weight given to that action; in 23 my terms, some higher threshold being required to open issues 24 beyond those. i 25 And it was at that point in mind at least that I had ALDERSON REPORTING COMPANY, INC.

14 y been trying to approach this. Now as I think briefly alluded F to by Commissioner Bradford in the beginning, there are problems 2 3 with going to that kind of approach. And I will -- 4 (Laughter.) /~ ~ 5 COMMISSIONER BRADFORD: Peter Bradford among them. l 6 (Laughter. ) ~ CHAIRMAN AHEARNE: And I will grant that probably 7 Xl 8 approaching it from a nonlegai perspective, it appeared to me that 9 given all that effort that had been gone through that it would g 10 ha a very high threshold over the succeeding weeks in terms of E g ij discussions with many people more familiar with the law than I. B g 12 And I have had to back down off of the kind of high 13 threshold, tight threshold type that I hoped to end up with. And 5 g j4 that had ended up with the proposal which I had hoped to discuss 15 this morning, which was the proposal put out this morning. And j 16 I think that the important part of it bears a preliminary or just al j7 a discussion's review of the history. l 18 And really the issue is the litigation of the issues 19 and operating license proceedings, and what do we conclude is the R 20 kind of guidance to be given? 21 Now at least in my limited comments I would like to 22 close those with asking the General Counsel whether he believes 23 that the approach I have outlined is legally supportable. 24 MR. BICKWIT: Yes, I do believe it is. What you are 25 suggesting is that litigation beyond compliance with existing rules ALDERSON REPORTING COMPANY, INC.

15 be precluded except in an isolated number of instances. And j ( that is where the particular new requirement of the OL list goes 2 beyond existing rules. And in that case the necessity of that 3 r requirement can be litigated. The sufficiency of it cannot be. 4 ~ And I believe that is a position which the Commission = 5 5 can take from a legal standpoint because to impose that kind of l 6 change in the normal Commission procedures does not entail the 7 changing of any existing rule and merely involves a change in a-8 N practice developed by the Appeal Board, which I think can be 9 2f h 10 changed by a policy statement indicating that we will no longer z h 11 f 11ow the Appeal Board's practice as it relates to the action a d 12 plan. z CHAIRMAN AHEARNE: Now, Joe, you had a somewhat differenf 13 5 l 14 approach that I think you were interested in. t: k 15 COMMISSIONER GILLINSKY: Before you switch over, could 7 16 y u explain what it means: "the parties may litigate TMI issues a ad g j7 at the hearing to the extent they are framed as issued of com-18 pliance with the present regulations?" Could you give us an k example? j9 R MR. BICKWIT: I might try. 20 CHAIRMAN AHEARNE: Would you like me to ask Vicki to 21 22 come up and go through that? COMMISSIONER KENNEDY: We ought to have Counsel's view. 23 MR. BICKWIT: We could do both. My own understanding 24 x 25l f what you said here is that where a given action plan item, t ALDERSON REPORTING COMPANY, INC.

16 y a given OL list item would clearly fall within a range of options f 2 anti ipated by an existing regulation, that it will be litigable, whether that is the appropriate place for the Board to come out. 3 /' 4 If someone wants to say that the existing regulations e 5 should be interpreted in a different way, either more harshly 6 or less harshly, they can argue that case before the Board. They 7 cannot, however, argue a position that what ought to be required 8 is a condition to a license is a requirement going beyond the 'j existing regulations. 9 i h 10 S that if a regulation envisions, can be read as en-d 5 11 visioning two to eight widgets, and the Commission has said we d 12 are settling on six, and the applicants and intervenors can 3 litigate that matter but cannot go out, you cannot go beyond, you 13 E l 14 cannot go beyond the eight. $i 2 15 COMMISSIONER KENNEDY: And the OL list in this concept 5: 16 is considered to be wholly witnin the limits of the regulations 3d g y7 ar-they now exist?

.:l 18 MR. BICKWIT:

No, I do no*..aelieve that is true, Eut in this particular example you would be able to litigate in the 19 R 20 manner I have outlined, mattars which do fall within the regula-tions. Now the other statement that you make here refers to 21 22 situations where an OL list item might fall outside, go beyond 23, an existing regulation. 24 And there what you are suggesting is that the Appeal i. 25l Board practice should no longer be followed. Whereas in the past ALDERSON REPORTING COMPANY. INC.

17 we have said that no one can litigate an issue beyond an existing j (' rule and an raise the appropriateness of a requirement that goes 2 ey n an ex sting mle, you are now saying that it can be raised 3 ( just so long as no one goes beyond the requirement of the new 4 OL list in that circumstance. = 5 5 COMMISSIONER GILLINSKY: There would be some parties 6 that would argue that the new requirement is excessive? 7 l, MR. sICKWIT: Y.s. COMMISSIONER GILLINSKY: Would it be permissible to 9

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10 argue that it was not sufficient? z MR. BICKWIT: They could argue that it was excessive jj 3 but they could not bring into question the validity of the rule, d 12 iE In ther words, in the example I have given you they couldn't 13 S say one widget is what we ought to have to put on this plant E 14 w because any reading of the rule would envision two to eight 2 15 E widgets. ? 16 t cd Someone who thought that the regulation was not adequate g j7 w h 18 because it was insufficiently stringent would be able to say to E a Board, "Even though the Commission in the OL list has said j9 six widgets is appropriate, I think eight is appropriate." They 20 would not be able to argue that they thought nine was appropriate, 21 CCMMISSIONER GILLINSKY: What about the items that are 22 not covered'by rules? They would be --- 23, MR. BICKNIT: Well, the items that go beyond the exist-24 k. l 25l ing rules, what this statement says is that they will not be i ALDERSON REPORTING COMPANY,INC.

18 I treated as rules, in other words, the new requirement can be I 2 contested and can be litigated even though it does go beyond an 3 existing rule. That is a change from the current practice. 4 And we are saying that someone who does not like this i. 5 change, an applicant for a license who feuls that the Commission's' 5j 6 requirement going beyond an e:H;isting regulation is excessive, 1R R 7 can come in and tell that to the Boarc'. X j 8 COMMISSIONER GILLINSKY: I assume the regulation is d ci 9 being changed? 2 h 10 MR. BICKWIT: No, the regulation isn't being changed. Ej 11 What is being changed is in effect the staff's position. The 8 y 12 Commission is telling the staff --- 13 COMMISSIONER BRADFORD: Some regulations are being l 14 changed as the result of the action plan, some but not all. 2 15 COMMISSIONER GILLINSKY: Are in the process of being / f 16 changed. e g 17 MR. BICKWIT: The regulations are not being changed. E k 18 You can only change the regulation by a rulemaking. And what 5 19 R I see happening here is that you are not engaging in a rulemaking. 20 You are leaving the current regulations and we are simply saying 21 there is a new set of --- 22 COMMISSIONER KENNEDY: We are now interpreting them. 23, MR. BICKWIT: That is correct. In some cases we are 24 interpreting and in some cases we are saying we believe the 25 regulation is not adequate. I ALDERSON REPORTING COMPANY. INC.

19 COMMISSIONER GILLINSKY: I guess I don't understand how j ( 2 this changes the existing state of affairs. You are saying that parties can litigate issues to the extent they have framed the 3 issues as issues of compliance with present regulations. You 4 can d6 that now. e 5 il MR. BICKWIT: You can do that now. That does not change, l 6 7 What changes is the latter part. g CHAIRMAN AHEARNE: The litigation "as the need for 9 requirements to those required by the current regulations." af h 10 MR. BICKNIT: Presently the appl'icant can come in and zj jy can make the case that he is in compliance with all of the regula-r5 12 tions --- z COMMISSIONER GILLINSKY: But these are requirements im-13 \\. S l 14 posed by the Commission. 2 15 MR. BICKWIT: That is correct but they are not - - 5 COMMISSIONER GILLINSKY: Up to now I think we have not 16 B ad 17 imposed requirements which went beyond the regulations. l 18 CHAIRMAN AHEARNE: That is right. We are proposing = requirements to go beyond the regulations, And I am attempting j9 R 20 in this case to give that some unique character. 21 MR. BICKWIT: If you said nothing with respect to those 22 requirements, then an intervenor who wanted to push a Board beyond ( 23 the existing regulations so as to compel an applicant for a 24 license to comply with the Commission's.new requirement would l 23 l be told by the Board -hat it could not do so. ALDERSON REPORTING COMPANY, INC.

20 1 The Board would say our Appeal Board decision in Maine / ~' Yankee says once you comply with the regulations you are entitled 2 to a license. The commission is now saying that is no longer the 3 case. 4 ~ COMMISSIONER GILLINSKY: But here the Commission is = 5 5l 6 g ing outside the regulations? MR. BICKWIT: That is right. But not going by rule. 7 8 COMMISSIONER GILLINSKY: What is in this paragraph 9 changes that would not be true if you did not put it out? i h 10 CHAIRMAN AHEARNE: My understanding is that right now z jj there is no framework for the Board to give any weight to the a d 12 Commission's saying " going beyond the regulation, going outside i5 the regulation." It just does not exist. 13 ( E 14 COMMISSIONER KENNEDY: And this is a direction negating = 15 the effect of the Maine Yankee decision in this regard. That is 5 ? 16 what this is doing. Otherwise the Boards are in a sense sub-3 al g j7 ject to it and therefore --- u h 18 COMMISSIONER GILLINSKY: So you are really opening up O for litigation then that --- j9 R 20 COMMISSIONER KENNEDY: That is correct, thing that 21 otherwise would not be. 22 COMMISSIONER GILLINSKY: And therefore we could not 23 l impose the requirements. 24 MR. BICKWIT: But at.the same time they do not except 25 by rule. ALDERSON REPORTING COMPANY, INC.

21 j COMMISSIONER HENDRIE: At the same time you open up b 2 we are also putting some limitations on how much litigation you . ant to see. w 3 ~ (~ 4 COMMISSIONER GILLINSKY: That is the thing I wanted to = 5 understand. It looks to me at this point John is --- 5 g (, COMMISSIONER HENDRIE: But there is a fence out there. 7 You had the door explained and now you want to know about the A g 8 fence. d ci 9 CHAIRMAN AHEARNE: The issue is here you got the regula-i h 10 tions. We have gone through this process. Here is this whole El 11 new bag of things and how they match with the regulations is a 3 (i 12 little bit of a cross but there are some that clearly go beyond, 3 outside, in addition to. 13 5 l 14 The question is then, does the Board allow those to be 2 15 requirements? And obviously the Commission's intention is, yes, E 16 because we want to require the plans to meet those, j k ad 17 CHAIRMAN AHEARNE: So we want to make sure they go that = $i 18 far. But my concern is after all of this effort that is put by b 19 us and by our direction to the staff in developing that set, that R 20 I think there should be some kind of a threshold required 21 before you go beyond that. And that determines the fence. 22 ER, BICKNIT:. The fence is that they do not provide 23 for someone who is dissatisfied with the new OL requirement, the 24 new operating list requirement to push a Board beyond that re-( 25 quirement. ALDERSON REPORTING COMPANY, INC.

22 COMMISSIONER GILLINSKY: Where does it say that? That j ( is what I do not see. 2 CHAIRMAN AHEARNE: That is "to allow the extent that 3 r the operating license requirements" --- 4 COMSSIONER GIMSE: I see, But not beyond that? e 5 CHAIRMAN AHEARNE: Yes. 6 COMMISSIONER GILLINSKY: I see. So you are in effect 7 allowing an applicant to argue that he ough.t to be required to 8 N do something but you are not allowing the intervenor to argue that 9 2 h 10 perhaps there --- z COMMISSIONER HENDRIE: That is the way I understand it. jj 3 COMMISSIONER GILLINSKY: Okay. I didn't understand. d 12 3 MR. BICKWIT: You are selecting repealing the Main 13 S Yankee --- g j4 w COMMISSIONEK KENNEDY: The defense that used to be 15 there has been moved ou :. But you cannot go beyond that fence. T 16

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j7 You can do anything you want to in that fence. m b 18 COMMISSIONER HENDRIE: And furthermore, Vic, the new b j9 fence has got pipe posts and is made of chicken wire and is a 8n y Commission policy statement fence whereas the previous fence was gj a good, stout locus post rail fence or whatever imposed by the rule, supplemented by assorted staff guidance documents to be 22 sure. 23 Nevertheless, I really think you need some kind of 24 i guidance to map this area beyond the present regulatory array, 25 I l t ALDERSON REPORTING COMPANY, INC.

23 array of regulations, i j / COMMISSIONER GILLINSKY: Does anyone have an estimate of 2 how much -- I don' t know how you count, but how much of the 3 r-plan falls within the regulations and amounts to interpretation 4 f the regulations, and how much goes beyond the regulations? = 5 \\ A little, a lot? j l 6 _g7 MR. BICKWIT: Based on conversations with people which I think have a better estimate, I think that most of the plan 8 9 falls within the existing regulations, most of the OL falls with-i 10 in the existing regulations. I may be about five to 10 of the z jj requirements go beyond the existing regulations. R CHAIRMAN AREARNE: What is the nature of those? d 12 3 MR. BICKWIT: I will give you a few examplas. 13 k 3 COMMISSIONER GILLINSKY: Well, leaving the numbers g j4 aside --- 15 MR. BICKWIT: I would like to hear from the others on 16 B i si that. g j7

sl jp COMMISSIONER GILLINSKY:

Is that something the others k agree with? j9 R CHAIRMAN AHEARNE: Roger, or Ed? 20 MR. MATTSON: Let me try two answers. It depends a 21 22 little bit on how you interpret what the regulations require. s Y u remember back in January or February we asked Guy Arlotto 23 ; y to.put together a group of people to take a look at the NTO list 25 and tell us, tell you whether the requirements contained on the i ALDERSON REPORTING COMPANY, INC.

24 1 NTO list required rulemaking, whether rulemaking was desirable, 1 I 2 or whether rulemaking was unnecessary. 1 3 So one answer to this question might be in all the 4 unnecessary ones that Arlotto and the group of people that = 5 worked for him decided they were within the current regulations; l 5l 6 and the ones that were not characterized as a "U" were question-R \\ 7 able. A j 8 Clearly one of them went beyond the regniations, the Ud 9 one having to do with inerting.

i h

I'O Another way to look.at them is just to pick them one g 11 at a time. Here your interpretation is going to depend on the 3 12 interpreter. One clear example to me is the reactor-operator S ( 5 13 plus a senior reactor-operator in the control room at all times, a l 14 That is an instance where the regulations speak to manning in 2 15 the control room by licensed personnel. And they are not that E g 16 specific and they are not that hard, el 6 17 So the SRO plus the RO in the control room at all times E 18 is another example of one that goes beyond the current regulations. E 19 And clearly the inerting is another example that goes beyond, 20 MR. BICKWIT: Well, would you say the example you gave 21 about the RO and the SRO, that there were about five to 10 such. 22 examples? x 23, MR. MATTSON: I had occasion to go through and off the i = 24 l top of my head list a few the other day, just reading through it, 25' and yes that is in the ballpark, But it depends. If you are I ALDERSON REPORTING COMPANY, IN

25 a hawk it is five. If you are a dove, it is 10. It is going to -(^ depend on the eye of the beholder. COMMISSIONER GILLINSKY: Aren't we in effect voiding (^ the regulations? 4 ~ MR. BICKWIT: No, I do not believe you are. e 5 5 COMMISSIONER BRADFORD: The violence is to the reg l 6 caldes in all probability. 7 COMMISSIONER GILLE S m You are not extending them ] 8 j because you are not writing new regulations. So we are not, 9 10 we have not gone through a rulemaking process. So the new s z requirement does not have the standing of a regulation. It is jj an a r as-the-board license requirement. 12 b COMMISSIONER KENNEDY: But in effect we are giving it 13 a such standing. qg 15 MR. BICKWIT: Not quite. $i I COMMISSIONER KENNEDY: Not quite but almost. We are .*3 ad moving in that directicn. g g7 mlg COMMISSIONER GILLINSKY: It is a uniform requirement. z COMMISSIONER KENNEDY: Yes. 19 k COMt*ISSIONER GILLINSKY: At the same time it seems to y 21 me y u are saying the former regulations will no longer hold 7 because a regulation is a regulation. CHAIRMAN AHEARNE: No, I think it is probably more 23 y accurate that in a lot of these cases we are putting in specific details that previously would only be found on regulation. 25 ALDERSON REPORTING COMPANY. INC.

26 COMMISSIONER KENNEDY: He is talking about the others j (" that go beyond that. 2 COMMISSIONER GILLINSKY: I am referring to this specific 3 <-~ case where a regulation actually covers a specific requirement. 4 ~ COMMISSIONER KENNEDY: This is a case where we now say = 5 5 it will really mean nine widgets, not eight. 8 6 e COMMISSIONER GILLINSKY: In that case we are saying 7 ] 8 that regulation no longer applies. N CHAIRMAN AHEARNE: I think in the particular case he 9

s h

10 is talking about on an operator, in using, I am not sure how z jj far you can stretch a widget analogy, but the previous require-m 6 12 ment was for widgets, and now we are saying how many widgets 5 and what kind. 13 S MR. BICKWIT: You are saying in effect we are changing E 14 u $i 2 15 [theregulations. I do not think we are. 5 COMMISSIONER KENNEDY: You are dropping the regulation ? 16 3 as g j7 is what I am saying. u b 18 MR. BICKWIT: You are dropping a practice that said b you cannot ever deny a guy a license when he complies with the j9 R 20 regulations. That has always been the practice to say when an 21 applicant complies with all the regulations he gets a license, 22 And we are changing that. CHAIRMAN AHEARNE: And now we are saying that as the 23 result of all of this effort we have concluded that there are 24 25 some additional features that we will require. i ALDERSON REPORTING COMPANY, INC.

27 COMMISSIONER GILLINSKY: I guess that is something I (~ want to think over carefully: whether it is better to shift ver to a system in which satisfying all the regulations is not 3 enouc)h; we may go beyond regulations, or whether we ought to keep 4 the regulations consistent. e 5 5 I mean, in ther words, drop those regulations which we 8 6 e have decided do not go far enough. 7 COMMISSIONER HENDRIE: Well, I think that is a good -- 8 l well, I think I agree with that for the long term. And I would 9 af h 10 expe t that in due time some of these provisions will get re-z 5 flected in rulemaking so that one is once more back in a situation g 11 in which conformance with the regulations, as defined in the d 12 E 3 sta f guidance documents and any Commission pronouncements, is 13 5 in fact the standard. g g u COMMISSIONER KENNEDY: And when that comes true, then g u this policy statement should be voided. g t COMMISSIONER GILLINSKY: Yes. y7 u b 18 COMMISSIONER HENDRIE: But in the interim we have a O need to not let the system either just sit idle until that j9 could be all executed and worked out, nor do I think. we ought to 20 just unleash it to make what.it will of the action plan without 21 any guidance from the Commission. 3 3 That is I think in some interim time, which will clearly run a number of months, maybe as long as a year, I think we need p guidance to the Boards and in effect to the staff and other 3 i ALDERSON REPORTING COMPANY, INC.

28 parties to make clear what we think ought to be done, what we j ( think is good enough, and to provide a guidance to the system 2 during this interim period. 3 Now if you do not do that, you are going to have all t 4 ~ kinds of peculiarities out there in the adjudicatory system 5 where there will be places where people will be arguing that l 6 requirements, new requirements which the staff believes are es-7 sential and that we have agreed are essential but which are among 8 9 that group that go beyond the regulations are going to be z h 10 challenged by people who are saying, " Wait a minute, the rules of z jj this Commission are reflected in the Maine Yankee Appeal Board 3 ti 12 Decision which says you cannot attack the regulations through Z.! the back door. 13 S l 14 "If you want to attack regulations, why you petition 15 to attack a regulation and fight it out on that front but not in a regular licensing adjudication." And that is intolerable g 16 d g j7 because we have all agreed these things are necessary,

.l 18 S

we need some direction on that. And the speediest b way to do it, in fact the only way it can be done in rather short j9 R 20 rder is through the policy statement route. 21 As I say, in due time I would expect these things would 22 get picked up in assorted rulemakings so that the regulations 23 nce m re before the boundary line, the standard the you can conform to. But in the meantime we get to ao something to pro-y 25 vide the guidance and instruction the system needs to operate in ALDERSON REPORTING COMPANY, INC.

29 the interim. ( CHAIRMAN AHEARNE: There is another reason in addition, J e, because certainly what I have tried to have developed here 3 r is essentially saying that we as a Commission have gone through 4 all 3 these reviews and the action plan in depth and in detail = 5 5 and we believe this new set are those items and therefore if l 6 we go this route, we are telling the Licensing Boards that to 7 imp se some -- you said a chicken wire fence and I used a 8 threshold -- that to go beyond that, for example, to issues that 9 i h 10 in the action plan that we are not laying as requirements or z issues in the various reviews that were not finally determined yj a t be requirements, to get those put on as requirements the person d 12 5 wishing to do so must meet a tighter threshold. 13 5 And that is another facet of it. E 14 = COMMISSIONER BRADFORD: I must say what I find offensive 15 f. 16 about the'se proposals is not so much the techniques involved as I 3 ad what the actual result is. In putting together the action plan g j7 u b 18 we have had comment in some detail from only one group and that is k the industry. We met with the AIF and the indu try has had j9 20 fairly extensive access to the plan at all stages of its prepara-tion. 21 The document that is being proposed now in effect 22 says that the only group that will be permitted effectively to 23 i I litigate action plan requirements is the group that has been 24 extensively involved in the development of the action plan, namely 25 ALDERSON REPORTING COMPANY, INC.

30 the industry because they are going to be the one who will be prepared to contest the necessity, but not the sufficiency. Everybody else, everyhody who is inci d to say that 3 in one way or another the plan does not go far enough in the 4 remed~ying of particular concerns they may have about particular = 5 5 plants is being told that there is no way that they can challenge l 6 the sufficiency of the Commission-imposed, the Commission-7 determined solutions. 8 N And I do not think that is right. I think that the 9 af h 10 OGC nemo on this subject generally set out the right legal z j theory, which is if one wants to do something like this to pre-jj clude people from raising matters in proceedings, you have to go d 12 E 3 through the interim step first, which is to give those people, 13 5 who are going to be precluded from raising the matter in indi-E 14

s vidual pr ceedings, some kind of access to the general proposi-15 E

tion. g .m

d g

j7 As I say, what we got here is a situation in which.the nly group that has had real access to the developing of tle 18 k action plan is to be the group th'.t is to be permitted to challenge j9 R iD in forthcoming Commission proceedings, Thr. groups that have 20 gj not had access to the action plan are the ones who are now to be precluded from challenging it when it goes pt ' lic. 22 CHAIRMAN AHEARNE: Len do you have any c :....ent? f 3 MR, BICKWIT: I agree with that insofat as it relates 24 25 i t the five to 10 items that Roger mentioned. I do not agree ALDERSON REPORTING COMPANY, INC.

31 with it as it relates to the bulk of the items on the OL list j I' because both sides, as it were, will be able to litigate the re-2 3 quirement when that requirement falls within the ambit of the / existing rule. 4 ~ = 5 COMMISSIONER GILLINSKY: Well, as I understand it, U 6 John's statement would not affect requirements to fall.within 7 the range of applicability of the rule. So the only thing there X g g is to talk about is these other items, dd 9 MR. BICKWIT: Well, the statement, as I understood z h 10 Peter to make it, suggested that with respect to all of the z h 11 action plan items, all of the OL list items, that those other a d 12 than industry would not be"able to litigate their sufficiency. E! And I am saying that is not the case where these items fall within 13 5 l 14 the existing --- 2 15 COMMISSIONER BRADFORD: No, it is clearly the case there U 16 too. But it is less offensive in that case because they have an d g 17 equal opportunity to litigate their compliance with the regula-E 18 tion. What they are not permitted to litigate is whether com-19 pliance with the regulation is ;till sufficient. H 20 MR. BICKWIT: That is right. Yes. But they are per-21 mitted to litigate whether the action plan requirement of the 22 Commission is an appropriate, is an appropriate interpretation of i 23 ' the regulation. It strikes me that that is where most of the 24 litigation it going to take place with respect to this OL list. 25, COMMISSIONER GILLINSKY: But the restrictions that flow ALDERSON REPORTING COMPANY, INC.

32 4 from John's statement come in in cases where the requirements j f 2 g outside the regulations. MR. BICKWIT: That is right. They are less restrictive 3 ^ 4 taen existing NRC practice. 5 COMMISSIONER GILLINSKY: And where that occurs what l 6 Peter says is exactly right. 7 MR. BICKWIT: That is correct, g MR. BRADFORD: And as to the rest, if we adopted no d 9 statement at all today, then what you say would be just as true 10 as if we adopted this? E MR. BICKWIT: That is right. g jj 3 d 12 COMMISSIONER GILLINSKY: I mean the statement really E deals with those other items. It mentions the case where require-13 E g j4 ments fall within the range of the regulatior.s, but it really 2 15 deals with the other items. That is where you are changing the E j 16 existing state of affairs, ^ ad 37 And so when we are talking about the statement, I mean l jg that is what you have to talk about, E j9 COMMISSIONER KENNEDY: In the other cases though you R 20 are interpreting the existing state of affairs differently. i 21 COMMISSIONER GILLINSKY: Are you? 22 COMMISSIONER KENNEDY: Sure. 23 COMMISSIONER GILLINSKY: In what way? 24 COMMISSIONER KENNEDY: By now stating someth' g that had 25 ! not been either explicitly stated before, explicitly within the i ALDERSON REPORTING COMPANY, INC.

33 O confines of the regulation, or by interpreting what those con-( fines really are. COMMISSIONER GILLINSKY: Well, it is my impression that 7 the situation before the Boards would not be any different --- ~ COMMISSIONER KENNEDY: That is correct. Except here 5 H by issuing the NTOL list and saying "That is it, that i.s what l 6 the regulations in these respects mean," you have guided the 7 Boards in theh inte.v etation of the regulations in such 1 M ga- [ 8 N 9 z h 10 MR. BICKWIT: ,You have guided the Boards but not in z g yy any way defines them. CHAIRMAN AHEARNE: No, but let's be practical then. g g Z. Let me say I hope we are being practical. Let me still work 13 E with your example, if we had previously a description that said g that plants had to have widgets and it had to be somewhere be-15 tween two and eight, the staff would come in and say we think g 37 six is required, the applicant might'say we think five, and an u h 18 interven r might say seven. The Board could argue them. 6 If we now come out and say "We have really thought about j9 R 20 this a great deal and we think six is the number that is required,' 21 now I am not sure what legal weight that has, but clearly I think if the Commission has made a decision that we think that is the 22 23 ! right number to be there, I would expect a Board in addressing 3 that issue is going to give great weight to that statement, 25 recognizing that as it works its way up the chain finally that ALDERSON REPORTING COMPANY,.INC.

34 the Commission has already said it thinks six is the number to be ) r there. 2 MR. BICKWIT: I think as a practical matter that is 3 true. But I just want to point out you foreclose no litigation 4 = 5 i COMMISSIONER KENNEDY: That is right. l 6 COMMISSIONER BRADFORD. That is right. You do not 7 forecl se litigation. And you also - while the Board may well 8 come down on six, it will not rule evidence on the question out 9

i h

10 f rder; that is, the record will be built on the basis of the z h 11 different parties' perception of what the answer ought to be. m And if somebody puts together a really compelling case that it d 12 z ught to be eight or for that matter four, the Commission will 13 5 have that record before it at some time in the future. g It is the same kind of record that might have been put 15 f. 16 f rward if we go into the action plan in a different way and put 3 ai g 17 a version of it out to public comment. Well, it makes not an a h 18 adjudicatory record but the same kinds of facts and perspective = could be before us. But the fact is they are not. j9 I CHAIRMAN AHEARNE: Well, I suppose what underlies my 20 21 approach is that I have a belief that the amount of time over 22 the last eight months that the staff and we have spent was spent f r a purp se and a use. And therefore I could conclude that 23 I when we have sent the staff back to the Boards and are establish-y ing what commission policy is, that it ought to have some 25 ALDERSON REPORTING COMPANY. INC.

35 I significance. I 2 Otherwise it is not clear to me that we couldn't have 3 just as effectively turned the switches on eight months ago. I COMMISSIONER BRADFORD: And I am agreeing that it has 4 a use$ Its use in a contested proceeding is at the very least 5 l 6 as guidance to the staff as to the position that they should be 7 taking. And in all probability in most cases it will also N g 3 determine the outcome in a proceeding. dd 9 But I wouldn't for my own part rule out those cases in IC which somebody wanted r.o come in and say that the answer was E g 11 eight and build a record on that proposition. I think that the 3 r$ 12 staff pursuant to the process in drawing the action plan should* E defend six, and I expect they would win most of the time. But 13 R l 14 the difference between the approach I take and I think the one 2 15 that is set forth in the various more limiting proposals is E j 16 really the difference between the Board saying we are not even d g 17 going to hear evidence on that question, and the difference be-E k 18 tween the record in all probability agreeing with the ac'. ion h 19 plan but there being a record and the party having the oppo.-tunity I 20 to push the proposition that the Commission for all its efforts 21 may have been wrong. 22 COMMISSIONER KENNEDY: That posture pertains to those 23 things outside the regulations' limits? 24 COMMISSIONER BRADFORD: Let's see. That is correct. 25 ' COMMISSIONER KENNEDY: Because the record can be made l ALDERSON REPORTING COMPANY, INC.

36 1 in respect to anything inside. (~ 2 COMMISSIONER BRADFORD: That is right. 3 COMMISSIONER GILLINSKY: Let me ask yt a, is it clear 4 for any one of these requirements whether they fall within the ~ e 5 range allowed by the regulations or outside of them? 5l 6 MR. BICKWIT: In most cases it is but in some it might 7 not be. We got a few examples of where it clearly falls within X g 8 the range. d d 9 COMMISSIONER GILLINSKY: Could you give some examples? i h 10 MR. BICKWIT: Sure. I think Roger's example of where E g jj it clearly falls outside --- t d 12 COMMISSIONER GILLINSKY: You mean inerting?

  • 5 MR. BICKWIT:

Inerting and the SRO reactor-operator 13 a E 14 regulation where we are saying, where the Canaission has said s k 15 they want a licensed operator and an SRO in the control room, 5 16 that clearly falls outside the regulation that says one or the 6w g 17 other is ' sufficient or one or the other is required, and then the 5 k 18 Appeal Board glosses on that rule and says it is sufficient, E 19 An example of where it falls within the regulation is R 20 on shift manning the 50-50 784 says the applicant must be 21 technically qualified. 1(all.1 of the OL list says you have to 22 have a shift technical adviser available within 10 minutes. Some-23, body might come in and say you should have two such advisers or I 24 10 minutes is too long a period of time --- 25 ' COMMISSIONER KENNEDY: Or too short. ALDERSON REPORTING COMPANY, INC.

l 37 I MR. BICKWIT: Right. What would happen is that you j w uld not foreclose litigation from people who wanted to raise ( 2 3 that that was either too short or too long a period of time. 4 They would be litigating under the regulation that the applicant is 5 must Be technically qualified. 5 6 As the Commission has pointed cut, probably the Board 7 is going to come out with the Commission's OL list requirement that a shift technical adviser available within 10 minutes is 8 9 what is appropriate. i h 10 CHAIRMAN AHEARNE: Now let me get back to a point that j z jj you made. The ability to go beyond our, if we go this route I 3 d 12 have proposed, the ability to go beyond, our going beyond the re-3 quirements, does that not still exist if they can make seme kind 13 5 g j4 of a showing of a reason for doing so? m 2 15 MR. BICKWIT: Well, what I understand this policy state-E 16 ment to say is that, no, that you are going to preclude anyone 3 al g j7 ' coming in before a Board and saying in that circumstance the Board 18 should come out with a more stringent requirement than the Com-b mission has come up with in its OL list. j9 20 COMMISSIONER KENNEDY: This draft, the one handed out 21 this morning, does not contain the savings clause which generally 22 accompanies such statements; to wit: except where good cause 23 can be shown. 24 CHAIRMAN AHEARNE: I think " good cause" is a yery weak statement. 25 l ALDERSON REPORTING COMPANY. INC.

38 COMMISSIONER KENNEDY: Or whatever statement one wishes y to put in. But there is not any here, which I think is the f 2 3 p nt y u just made. CHAIRMAN AHEARNE: May I ask additional legal advice? 4 MS. HARDING: This did not affect 2.7058, which allows e 5 5l 6 you to litigate if you show special circumstances, So.you still 7 have that option. MR. BICKWIT: That is correct, I think you will agree 8 9 that is the limited option, z h 10 COMMISSIONER GILLINSKY: What is that saying? z MR. BICKWIT: You have to show in this particular case yj is ti 12 the rule should not apply. z COMMISSIONER GILLINSKY: Well, the rule is inapplicable -1 13 5 MR. MALSCH: The rule says if you can show that because gy n 2 15 of special circumstances application of the rule in a particular E 16 case would not serve the purposes for which the rule is adopted, wi 37 the Commission may waive the rule. l 18 CHAIRMAN AREARNE: That is very, very limited, = 5 MR. MALSCH: That is right. So if you have a purely j9 20 generic problem, you could not fit it into 2.7508, You have to gj show in effect, Oh, God, the Commission envisions this sort of circumstance. 22 CHAIRMAN AHEARNE: In the original approach which I 23 24 was trying to develop, which General Counsel advised was illegal, 25 was to place a threshold; that to go beyond that would require i ALDERSON REPORTING COMPANY, INC.

39 j some substantial reason for belief that it would be necessary to (' 2 g bey nd that. 3 That is why I was using the word " threshold" rather than fence. 4 ~ 5 MR. BICKWIT: I was saying that what you were earlier El 6 Proposing would have required a rulemaking. And it certainly f7 can be done by rulemaking, but if you attempc to bypass the rule-8 making process my best judgment is that that would not be defen-N sible. 9 2i h 10 COMMISSIONER GILLINSKY: Just a comment to Joe. We z h 11 were talking about whether we ought to leave the regulations in m d 12 Place even though you are gbing beyond them, but it seems to me z that undermines respect for regulatiens in general. I would 1 13 5 g j4 think, I haven't thougl.t this through, I would prefer to void a g 15 those regulations which we are no longer subscribing to, n 16 MR. BICKWIT: I don't think that is going to get the a as j7 Commission what its purpose is. k 18 COMMISSIONER HENDRIE: You cannot void them without a = 5 rulemakir as well. Without a rulemaking you cannot. 19 R 20 MR. BICKWIT: No. 21 COMMISSIONER HENDRIE: So there is a process that has 22 a time constant in it. 23 COMMISSIONER GILLINSKY: At least we are commiting our-24 selves to that process. I am just concerned about the Commission 25 having rules that we do not follow. ALDERSON REPORTING COMPANY. INC.

40 COMMISSIONER HENDRIE: Yes. I think getting on toward j 2 that sequence of rulemakings which realigns things --- COMMISSIONER KENNEDY: I would be more concerned about 3 4 that if it were the other way; th'at is, if we were now considering = 5 something less than the extent of the rule. But if we are saying 6 the rule, yes, but more, I think that the problem of lack of f7 respect for the rule is a little bit less than there. I under-Xl 8 stand your point but I think that it is more defensible, if you 9 will, when you are extending rather than pulling back from. mi h 10 MR. BICKWIT: I would like to make a few observations z! 11 that I haven't been able to get in. For one I just want to ti 12 make clear that you have repealed that Appeal Board decision to Z a very limited extent in Appendix B under "New Adjudicatory Pro-13 S E 14 ceedings." w 2 15 CHAIRMAN AHEARNE: You mean we have previously? 5 16 MR. BICKNIT: You have repealed it to the extent that w j7 the Commission is not bound by it but the Boards are still bound l 18 by it. And this proposal would selectively repeal it as to b j9 the Boards themselves. R 20 And then I also wanted to make clear that I do think 21 it would be legal to in lieu of precluding of litigation in the 22 circumstances that is outlined here, to erect some kind of a 23 l threshold, but only in those circumstances. Because there you 24 are dealing not wirh a rule, you are not changing a rule through 25 a policy statement, you are in effect changing an Appeal Board i ALDERSON REPORTING COMPANY, INC.

41 e decision to a policy statement, which I think can be done. CHAIRMAN AHEARNE: Well, that really was more of our preference so long as it is a real threshold. If it is an 3 apparent but gossamery threshold, then it doesn't do any good. 4

  • E*"

5 threshold was. 6 CHAIRMAN AHEARNE: What did you have in mind? 7 MR. BICKWIT: Well, an example of the kind of thing 8 ya an s say when you want a contendon that takes you 9 i h 10 beyond the OL requirement, that you got to come up not simply Z E with a statement of basis for the contention, but with a showing g 11 that demdnstrates to the adjudicatory officer that he might well d n E c me ut in fav r f that contention, in other words, a demon-13 i. g stration of'the kind of evidence that you intend to bring forward g and a statement of who y m r witnesses are going to be, and in 15 effect a mini-presentation of the case. .g CHAIRMAN AHEARNE: Well, what I wanted to do this j7 u 18 m rning is to open the discussion on this to get it out, One h of us is unable to be here much. longer, And what I would like 39 R t do is to see if we couldn't, having laid some of these points 20 ut, schedule a meeting for Friday? Is that okay? 21 COMMISSIONER BRADFORD: Highly desirable from my g standpoint. y COMMISSIONER HENDRIE: I think we ought to keep focusing 24 in and come to a conclusion one way or another on this point, 3 ALDERSON REPORTINGCOMPANY, INC.

42 j COMMISSIONER KENNEDY: Can't we conclude the general / thrust that we are talking about is the direction which the 2 Commission wishes to take? It seems to me that is step one. 3 4 If it is, then we get down to precisely how does one go about it, a 5 what does the language look like, what does a policy statement 5l 6 do, and what are its limits? Rg 7 And unti1 we get some sort of basic thrust, you cannot 8 get talking specifics. 9 CHAIRMAN AHEARNE: I would be glad to make that

i h

10 agreement but I am not sure whether all would support it. 3 5 11 COMMISSIONER KENNEDY: Well, I would. d 12 COMMISSIONER BRADFORD. Can you phrase the~ proposition E! 13 again?- S g 14 What am I doing? u 2 15 COMMISSIONER KENNEDY: What I am suggesting is the 16 basic thrust, which has been outlined by John this morning, 3 as g 17 the direction which the Commission wishes to go. And if so, 5 18 then, you know, we ought to tell Counsel to go back to the b 19 drawing board and draw up alternative frames of language which 20 would make that possible. 21 CHAIRMAN AHEARNE: I would like them to go back to 22 the drawing boards with something in hand. I think at least 23 three of us have agreed. COMMISSIONER BRADFORD: Yes, it isn't mine, I would 24, 25 prefer to consider the action plan to be an instruction from the ALDERSON REPORTING COMPANY, INC.

43 3 Commission to the staff and to be the proposition that we live / ~ by in uncontested cases. 2 3 But I would not, but I just do not think that the 4 right kind of groundwork has been done in some cases legally e 5 but in any cases out of fundamental fairness to use it as a 5 8 6 basis for precluding litigation. e 7 COMMISSIONER KENNEDY: You see that is what I am trying nl 8 to get at. That at least frames the issue. If we cannot dd 9 separate those points of view, we can debate this forever more. i h 10 CHAIRMAN AHEARNE: I think that characterizes it. E: COMMISSIONER GILLINSKY-I agree with Peter. The 11 m d 12 Commission has acted in a supervisory role. And clearly its E statement carries weight. First of all, it is something you 13 5 E 14 have agreed to at least in your position. w 2 15 CHAIRMAN AHEARNE: Well, then I think we got at 5 least two views. Len, if you could work some more, particularly g 16 w( 17 focus on this threshold question. I will offer my legal a= 18 assistant to assist. And I think that therefore we will have b 19 to postpone action on the memo because that really is --- R 20 COMMISSIONER BRADFORD: Would there be objection to 21 soliciting views of the licensing and appeals panels on this? 22 CHAIRMAN AHEARNE: Well, until we have it a little bit 23 more clearly focused, I am not sure --- i 24 COMMISSIONER KENNEDY: For my own part it would not 25 be a bad notion to solicit their views on th.e general propositions i ALDERSON REPORTING COMPANY, INC.

44 1 One doesn't have to solicit their views on specific language 2 but on the proposition. 3 CHAIRMAN AHEARNE: Well, I would like to make sure 4 that the proposition is in writing before soliciting their views --- = 5 E 6 COMMISSIONER KENNEDY: Fine. \\ -{ 7 CHAIRMAN AHEARNE: --- because this tends to be a 8 matter of description that is best looked at -- N COMMISSIONER KENNEDY: Isn't the OGC paper a reasonable 9 i h 10 basis for that? E g jj CHAIRMAN AHEARNE: I don't know. It isn't for me because I am in disagreement with parts of it. d 12 Ea 13 (Laughter.) 5 E 14 CHAIRMAN AHEARNE: And that really isn't quite the u b N 15 approach I have outlined to you. 16 COMMISSIONER BRADFORD: I would just give my -- it' as j7 MR. BICKWIT: I just want to say I think your approach b 18 is consistent with my reading of the paper, but I can understand E 19 how you could have read it differently, 8n 20 COMMISSIONER BRADFORD: The paper takes no position? gj MR. BICKWIT: No, the paper takes no policy judgments. 22 I have not heard an idea mentioned today that we thought was 23 illegal. j 24 (Laughter.) 25, CHAIR &lN AREARNE: Well, I will have to think a lot I ALDERSON REPORTING COMPANY, INC.

45 o-harder. j COMMISSIONER HENDRIE: I think you ought to close the 2 3 meeting so that blessing can apply to all of it. 4 COMMISSIONER KENNEDY: Peter has made a proposition. = 5 For the record I think it is a wise course and that we ought h j 6 to pursue it. e 7 COMMISSIONER BRADFORD: When you have a position 8 different with what the majority is desirous of doing, I think 9 it would be a good idea to put it to both panels for their 2i h 10 comments. E CHAIRMAN AHEARNE: That would be fine with me. jj ci 12 (Whereupon, at 11:30 a.m., the meeting was adjourned,) Ea dm d 13 nd 5 l 14 a 2 15 5 g 16 as( 17 $3 18 E 19 k 20 21 22 23l l 24 25l ALDERSON REPORTING COMPANY, INC.

hs NUCLEAR REGULATORY CO.W4ISSION This is to certify that the attached proceedings before the t in the matter of: Discussion of Action Plan (Policy Statement) Date of Proceeding: June 4, 1980 Docket tiumber: Place of Proceeding: Washington, D. C. were held as herein appears, and that this is the original transcript thereof for the file of the Commission. Joan Gill Official Reporter (Typed) (n O c.eu LJJ' 0{ m icia Reporter (Signature) 4 .m- -}}

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