ML19345H079
| ML19345H079 | |
| Person / Time | |
|---|---|
| Issue date: | 04/22/1981 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| Shared Package | |
| ML19240C249 | List: |
| References | |
| REF-10CFR9.7 SECY-81-202A, NUDOCS 8104300415 | |
| Download: ML19345H079 (81) | |
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COMMISSION MEETING Ek u.s.q $ $ $,
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In t."A.%ttar cf:
REVISING LICENSING PROCEDURESJr
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April 22, 1981 pgggg 1 - 79..
DATI:
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Washington, D. C.
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40 0 571:f d a Ave., 5.W. Washi..p=n. C. C.
20024 Talaphena : (202) 554-2245 810 4 3 00 Y/4A THIS DOCUMENT CONTAINS POOR QUALITY PAGES
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DISCLAIMER This is an unofficial transcript of a m_eeJing /--//
of the United States Nuclear Regulatory Commission held on MJM in the Commission's offices at 1717 H Street, N. Wr, Washington, D. C.
The meeting was open to public attendance and observation.
This transcript has not been reviewed, corrected, or edited, and it may contain inaccuracies.
The trariscript is intended solely for general infomational purposes.
As provided by 10 CFR 9.103, it is not part of the formal or informal record of decision of the matters discussed.
Expressions of opinion in
~'
this transcript do not necessarily reflect final determinations or beliefs.
No pleading or other paper may be filed with the Commission in any proceeding as the result of or addressed to any statement or argument l-contained herein, except as the Commission may authorize.
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2 NUCLEAE R EC-ULATORY CO?" SSICN i
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3E7ISING LICENSING PECCED"EES 5
6 Nuclear Regulatory Commission 7
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1717 H Street, N.W.
Washin; ton, D.C.
9 Wednescay, April 22, 1981 10 The Commission set, pursuant to notice, at 2:20 p.m.
11 BEFORE:
12 JCSEPH HENDRIE, Chairman of the Commission 13 JOHN F.
AHEARNE, Commissioner 14 PETER A. SPADFORD, Cocmissioner 15 VICTOR GILINSKY, Commissioner 16 17 NBC STAFF P3EFENT:
18 LEONARD SICK'i!!
19 HAEGLD DENTCY 20 ALAN ROSENTH:.;
21 TONY COTTEE 22 HO'i ARD K. SH A? AE 23 l
24 25 P00RDEBINAL AL0EASoN REPCATING OCMPANY. INC.
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1 i 12CII21225 2
(2:20 p.m.)
3 CHA!? MAN HEN;RIE.
If we can ecce to order, the 4 Commission meets this afternoon for another in its series of 5 meetings on revising licensing procedures.
6 I think what I wo uld lik e te dc this af terncen is 7 get started on the policy statenent.
There are a couple of 8 questiens about what Ccmmissionerr might be villing te do 9 about change in the threshold for contentions, and also 10 whether Conmissioners might want to say something about the 11 sua sponte povers of the ?oard.
Why don't I put those off 12 until toscrrev.
13 let's see.
One of those things we have papers, l
14 and on the other we are about to have the last of the 15 papers, is that ccrrect?
16
- 13. 3ICKWIT:
(Neds affirmatively.)
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17 CHA!?XAN HENDEII:
So I will defer those subjects 18 until tomorrow.
19 1 hat I would like to do ncv is te go to verk on 20 the draft policy statement and see hev we d'o on that.
21 Nov ve have two objects to quibble on.
There is a 22 draf t of the 7eneral Counsel in 31-202, a draft which I 23 think continuer to represent the proposal from our ad hoc 24 licensing improvement ;rcup, is that right?
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- 12. ?!CKWIT:
With ena c2veat.
All members have
?00R ORIGIM ALCERScN AEPC AT;NG OcMPANY, iNC.
3 1 concurred in it, and one has rot objected tc it.
2 COMMISSIONER AHEARNE:
Could you --
3 CHAIPMAN HENDRIE:
No.
Let's not examine that.
4 4R. EICKWIT I just don't want to risrepresent it.
5 COMMISSIONER AHEARNE:
At the appropriate time I 6 will ask for an explanation of it.
7 CHAIRMAN HENDRIEs Let's do tha t in just a second.
8 More recently, on the 21st of April came 81-202A i
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9 which was an insert where it was proposed to add two pages i
I 10 of discussion of the use of sanctions versus a short 11 paragra ph that had been in the earlier posting; se those are 12 202 and 202A then form together a propcsed draft to look at.
t 13 We also have on April 21st s separate draft l
14 Commissioner 3radford prepared.
i 15 Feter, where you have marked over a previous draft 16 is the previous draft the counsel's 202?
17 COM5ISSIONER ?R ADFORD :
Yes.
18 CHAIRMAN HENDRIE:
I thought it was.
19 00%MISSIONER BEADFORD:
Except th a t ! did put 202A.
20 CHAI?3AN HENDRII:
Into it.
21 00!!ISSIONER 3RADFORDj Into it in the spirit and 22 the flesh.
23 (Laughter.)
24 COXMISSIONER 3R A? FORD.
That is, the part I marked 25 " Alternative 3" is in fac: 2 CIA revised.
I P00RORM L l
ALOERSCN REPCRTING COMPANY. NC.
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CHAI? MAN HENDRII:
Yes, I have got you.
2 Okay.
I would like to start struggling through 3 these things.
I will look at yours, Feter, along with 202, 4 on which I guess I have some marks.
What I would like to do 5 is turn to page u, Roman III, Specific Guidance.
6 COMMISSIONER AHEARNE:
Ycu are skipping 202A?
7 CHAI? MAN EENDRIE:
I am skipping 202A at the 8 moment.
I am skipping the front end of this thing 9 altogether.
Cur differences across the table will come to 10 the front end.
General guidance is the guideline section 11 and how precisely we want to frame that.
12 Animal huntin; and long experience leads me to 13 believe that it is desirable to map cut the areas of I
14 agreement before mapping cut the areas of disagreement and 15 thus create a sense of investment of the Commissioners in I
16 the process which they hopefully will be sorry to lose by i
17 subsequently being unable to compromise somehow on what will 18 inevitably be differences in attitude and flavor we would 19 like in the front end of this document, since I perceive 20 probably less argument at the back end than at the front, 21 and since unless challenged successfully by a majority, I 22 vill fust do it.
23 let us start at Ecnan III.
Ncw, here you wanted 24 to shorten this f0Vn.
25 CCMMISSICNEF 33ACECFD:
Ihere is no magic to the P00R ORl8 NA.
ALDERScN REPCRENG COMP ANY, INC,
5 1 first sentence at all.
The second and third seem to me to 2 be just self-evident.
3 COMMISSIONEE AHEAENE:
Self-evident?
'to you 4 believe they are done?
5 COMMISSIONER BRADF0ED:
With the first and last
'6 sentence they vill be done together with other ;cints that 7 are made all the way throuch here.
If we vant the boards to 8 set and adhere to reasonable schedules, ! think all ve have 9 to do is say that.
10 CHAIRMAN HENDRIE:
Would you object all that 11 strongly to keeping some of that language even though it may 12 be saying the same thing in slightly different wo rd s?
13 COMYISSIONEE BEADFORD:
I would rather not, 14 because what I am trying to do is lessen the extent to which 15 this dccument leans on the Board members, and to be blunt 16 about it, treats them almost as children in telling them how 17 to conduct proceedings many of them have been conducting for 18 y ea rs, 19 So I have put the guidance ;enerally in somewhat 20 rore general terms while preserving what I take to be the 21 flavor in each one of these individual sections.
So my 22 preference would be to do it the way I have it.
23 COMMISSIONEE AHEARNE:
Can : add a corment to that?
24 CC5MISSICNEE 3RADFCED:
($cds afdirmatively.)
25 COMMISS!CNE3 AHEAENE:
I do not think it is so PBORBR M ALDERSON AEPORTING COMPANY,iNC.
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1 much treating them as children.
I think it is more putting 2 the Commission en the line saying we endorse their doing 3 this.
I would istgine and I still think in the past some of 4 the issues have been that the boards don 't know where the 5 board is on a number of issues.
6 Certainly some of the debates we have had on some 7 of the procedural rules to establish in some specific 8 hearings would, I think, lead any board member to wonder if 9 they were to apply this type of time management.
This is
)
10 obviously the Commission saying yes, we do agree.
11 COMMISSIONER BRADFORD:
I just can't imagine that 12 the boards are in serious doubt that the Commission endorses 13 reasonable schedules and tha t every eff ort be made to adhere 14 to them.
15 CHAIF'AN HENDEII:
But you are willing to say 16 precisely that, okay?
17 COMMISSIONER EBADFCSD:
Eight.
18 CHAIRMAN EENDRIEs And I am not sure why.
~4 e ll, l
19 aside from the aspect of the general flavor which you 20 mentioned, it doesn't seem to me that the other sentences 21 are obnoxious.
It does suggest that the 3 card should f
22 specify time frames for the actions where they think that 23 would expedite the proceedincs.
24 COMMISSIONEE BEADFCED:
'a' e l l, by putting the word 25 " a d h e rin g " in the first sentence, I intended to capture ALOERSON REPCATING COMPANY, INC.
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1 everything that I thought we ought to be saying in the next 2 two while really leaving it to the boards.
They know what i
3 10 CFE 2.711 says.
If we say we want them to adhere to 4 schedules, that is the way they will de it, or at least that 5' is among the ways they will do it.
6 COMMISSICNER AHEARNE:
I would be for keeping it.
7 CHAIEMAN HENDRIE:
So would I.
8 Vic, where do you come out on that?
9 COMMISSIONER GILINSKY:
It seems to me we can 10 rewrite this slightly to get the word " schedule" in.
I 11 guess that is what I would do.
12 CHA!EMAN HENOEII:
Would.you take a crack at 13 coming somewhere between?
j 14 CCMMISSIONEE GIIINSKY:
I will do that.
f 15 CHAIEMAV HENDRIE:
I rust say I don't have any 16 objections to the edits tha t have gone into the first and 17 last sen te n ce.
Does General Counsel want to comment on "at 18 least three working day s" v ersus "well?"
19 1R. BICKWIT:
I think "well" goes beyond "at least l
20 three working days" and is a healthy change.
21 CCMMISSICFEE AHEARNE:
May I ask ancther 22 question?
General Counse at the beginning indicated that 23 one of the working aerberr did not object but did not concur.
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24 CEAIRMAN HENIEIE:
Oh, I am sorry.
You are 25 richt.
Eefore I started this whole ente r; rise, I meant AL::ERSCN AEPoRTING COMP ANY,INC.
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8 1 after I laid out what documents we had at hand.
2 CCMMISSIONER AHEARNE:
I assumed you meant en each 3 issue.
4 CHAIRMAN HENDRIE:
So, no.
Let us do it 5 generically.
Go ahead.
Let's find out.
6 COMMISSIONER AHEARNE:
If the member who was --
7 MR. BICKWIT:
Ihe name?
Alan did not object, and 8 I will let him speak for himself as to wh y he did not concur.
s 3R. RCSENTHA1:
3asically my feeling was that 10 although I did not have strong enough objections to some of 11 the provisions in here to warrant my avimming upstream 12 against the otherwise unanimous view, at the same time I 13 sim ply did not feel that I wanted to put ryself on record as 14 affirmatively supporting some of these provisions.
15 CHAIRMAN HENDRIE:
How about 3-A?
16 P. R. ROSENTHAL:
I didn't have any problem with 17 3-A.
Well, as to that 18 COMMISSIONER GILINSKY:
The "nc objectien" applies 19 to the entire paper?
20 MR. ROSENTHAL:
Yes.
Ih ere is no thing in here I 21 strongly object to, but again, there aere enm.qh statements 22 that gave me some reason to pause t ". a t I just didn't want to 23 again ec on record as affirmatively supporting it.
Ihere is some comment from 25 the floor.
ALDCISoN AEPcRTING COMP ANY, NC,
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1 CHA!EMAN HENDRIE:
Harold, I'm sorry.
2
$3. DENTON:
With regard to that particular 3 section we tre scheduling for late '92 and '83 plants on the 4 basis of the schedule that the group could come up with, the 5 so-called eigh t-month sched ule which more or less defer 10 6 months plus one, so it is an eleven months schedule.
7 I wonder whether the group had considered l
8 attaching tnat schedule to this and calling it a standard 9 schedule.
Otherwise you can read this and still not know l
l 10 what the words themselves mean to be a standard case, l
l 11 recogniring there is no particular standard, but it would 12 give some definitive time period that someone could read i
13 this statement and infer what you really intended it to be.
1a COMMISSICNEE GIIINSKY:
Could I ask Iony, do the 15 boards now have any instructions from you about setting 16 sch ed ule s?
17 MR. CCTTER:
Do you mean have I given them a 18 written memorandum saying set schedules?
19 COMMISSIONER GILINSKY Well, written or oral.
20 MR. COTTER:
I circulated this document.
Ihis l
l 21 document is a product of the boards' thinking.
And what I 22 look for in this document is a psychological club in th e 23 proceedincs.
24 COMMISSIGNEE GIIINSKY:
Circulating i draft I
25 document is not the same thing as giving instructions.
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ME. CCTTEE:
No.
I have not.
They are doing it 2 though.
3 COMMISSICNEE BRADF0ED:
The boards are setting 4 schedules?
5 MR. COTTER:
Yes.
6 COMMISSIONEE SEADFOPD:
Haven't they always set 7 schedules?
8 ME. COTTEE:
Yes.
They are setting them more 9 frequently now.
10 CHAIEMAN HENDEIE:
Ecpefully a little tighter.
11 MR. COTTEE:
Within their judgmen t.
It is a 12 matter for their judcment.
13 COMYISSIONER SEADFCED:
Are their drawbacks to 14 Harold's suggestion?
15 MR. 3ICKWIT:
May I respond to Harold's suqqestion?
16 CHAIEMAN HENDRIE:
Yes.
17 ME. EICKWIT:
This is a matter which we have 18 advised to be taken up in the context of the rulemaking en 19 Part 2.
That has been out for comment, and I would like to 20 advise the Commission en what these comments have been and 21 analyre it in that centext; and one of the resolutions may 22 be tc attach the schedule tc this ;clicy statement, but !
23 wouldn't want to prejudge that until we have an analysis.
24 ME. COTTEE:
I vculd like to cc= ment en that, 25 too.
To the extent that I have always thought cf those timo ALCERSON REPORTING COM) ANY, INC.
99 1 frames as guidelines, I dcn 't want to set up straw man 2 procedural wars over how rigid they are.
3 CHAIRhAN HENDRIE:
No.
I am inclined to think it 4 would be very useful to have that kind of general guideline, 5 and it would be clearly set out that way.
I haven't felt it 6 was going to be useful to try to mandate, to say here is a 7 schedule; everyone stick to it come what may.
As soon as 8 you do one of those things, you promptly start to treat all 9 of the special cases coming dcwn the line.
You might as to well promptly realide those.
11 I think nonetheless it would be very 'useful, as 12 Harold says, to have a sort of general prototype as an 13 example of a schedule for soue totally mythical case which 14 is sort of average the Commiscion thinks and one the people l
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- 53. COTTER:
I will endorse that if you promise to 17 put in " general prototype" and " total mythical."
18 (Laughter.)
19 MR. SICK'4 !T 4 I should say that some of the 20 commentes have opposed even doing that on the grounds that 21 when you put in that kind of a schedule it tends to be 22 fleshed out by events even if events don't warrant the full l
23 number of days of the schedule being taken.
So that again !
I 24 would urge that no decision be rearhed on that new.
25 CHAI2%AS HENDRIE:
I guess I have to believe that l
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12 1 if I am willing to say yes I will not try to set rigid 2 deadlines, because I recognize there may be special 3 circumstances when more time will be need, and I am willing 4 to trust the boards to deal reasonably with those.
I have 5 to believe that there will also be circumstances when those 6 nominal times will not be needed and that the boards will 7 act responsibly not to extend things to the nominal times 8 when there is no need to.
9 MR. COTTER.
I think I could say very safely that 10 human nature beine what it is, one, the beards are extremely 11 conscious of the guideline time frames that have been 12 circulated and that they are doing. everything within their 13 power to beat them within reason at the same time.
14 For example, we can into a situation the other day n where there was a filing of 600 pages, and one of the 16 parties requested an extension of 30 days in ceder to review 17 the material, and ancther refused to agree to that, and the 18 board exercised their judgment and said that 30 days was a 19 reasonable request and was necessary te review it.
And !
20 think you have hundreds of decisions like that in every 21 proceeding.
22 MR. EOSENTHA1:
I might say that I fight that 23 schedule, assuming it is made clear that this is not a 24 mandatory schedule for application in all rases, less 25 troublesome than I find most of the rest of the paper.
ACERSON AEPCATING COMPANY, !NC,
93 1
I think m y basic p roblem, as explained before, 2 why I have found it difficult to affirmatively endorse it, 3 was not that there was anything or very much in here 4 specifically which I had trouble with, but it seemed_to me 5 overall what the caper says to the licensing board is look, 6 we expect these cases to move forward as expeditiously as 7 possible and use the rules to that end, fairly applying 8 them.
And I candidly state that I didn't understand and 9 still do not understand why there are eight or nine pages 10 necessary to convey that message.
11 And I cannot speak for the. licensing board members 12 -- perhaps Tcny can -- but I tend to think if I were a 13 licensing board member I would be offended by this paper.
14 That was the problem I had with it.
To clarify my position, 15 more than just saying that this particular instruction or 16 that particular instruction is unwise.
! think most of 17 these instructions are good.
18
?y guestion is whether this is the kind of -- it 19 may cr may not be that some boards, perhaps many boards, 20 have not been as diligent of the a pplica tion of the rules 21 and have been unduly tolerant of delay!.; -actics or 22 whatever.
!t seems to me in ;enerai instructions to the 23 board that this is wht our objective is within the 24 framework of due process and recogniring that people have to 25 have a reasonable Opportunity to present th eir ;csitions, to ALOEAScN AEPCATING COMP ANY. iNC.
Su 1 use all of the tools at their disposal, read the rules if 2 necessary to ensure tha t due process does not translate 3 itself into unnecessary delay.
4 Now, if you are not confident in the ability of 5 rour boards to understand what the rules calls for and what 6 tools are provided by the rules, it is a manifestation to se 7 of a lack of confidence of the boards to do their job.
8 ME. COTTEE:
! don't think there is any hint of 9 that, and I don't think that's the purpose of the paper.
10 dE. ROSENTHAL:
I'n not suggesting it's the 11 purpose of the paper.
12-ME. CCTTEE:
The boards read this paper as a 13 messa,e to the parties over which they are presiding, and 14 the specifics of the sessage enhance the boards' use of the 15 rules with which they are fully familiar.
16 YE. ROSENTHAL:
If you think it is useful for that 17 purpose, as I said, I was not swimmin; upstream against it.
18 I just did not want to affirmatively endorse it.
I am not 19 trying to put a roadblock in its way.
20 TE. E ICK'i!T :
I am glad to hear that.
21
( La ugh te r. )
22
- 52. ?CSENTHAL:
In any case, I thin'<. this schedule Z3 24
'E.
FICK"IT:
Tha t's very reassuring.
25
"?.
?OSINTHAL:
I '? sure it is.
The schedule is ALOE 95CN PEPCRT'NG COMP ANY. INC,
15 1 something concrete, which again, as long as it is understood 2 it's sirply guidance, could be useful.
3 COMMISSIONER 3RADF0ED:
I think the general point 4 you make about a board member's perception of this would 5 certainly be mine.
If I were a board member, I would be 6 livid.
7 MR. 30SENTHAL:
Tony doesn't see it that way.
6 COMMISSIONER 3BACFORD:
I as telling you that I 9 would be as a board member livid.
This document would tell 10 se the Commission did not trust me to run hearings 11 a de qua tely.
! vould think it was birarre that the same 12 Commission was thinking about making my decisions 13 immediately effective without further review.
14 COM.YISSIONER AHEAFNI I disagree.
Certainly my 15 support for this kind of document in no wa y goes to the kind 16 of criticism which you apparently if you were a board member 17 would feel would be perceived.
I could only speak for 18 myself on my intent for trying to push this.
19 CEAI? MAN HENDRIE:
Peter, it is also the case --
20 if board members take umbrage, I am sorry -- but I have had 21 occasions to look at some schedules for hearings, and here 22 is a schedule where it appears that the board expects the 23 evidentiary heatinv to end on a certain date, and the 24 initial derision is to issue ai;ht months later.
And I say 25 7ee, that seems like a long time to issue an ini.ial ALOERSON AEPoATING COMP ANI. iNC.
16 1 decision; and I must say where you find c1.rcumstances like 2 that, it seems to me that some expression -- and this really 3 is pretty mild 4
XR. CCTTES:
No board that I know of ever did 5 that.
That may be d'one from some other source but not one 6 of my boards.
7 COMMISSIONER SEADFORD4 I have proposed revisions 8 which seem to pull the teeth of the worst of it.
By and 9 large they don't ;o to th e specific section.
I think you to were wise to start with that, but I agree with Alan that the 11 document taken as a whcle, especially the flavor of the 12 beginning where we say we've been tellinc you since 1972, 13 and you don't seem to have gotten the message.
Here's how 14 we told it to you then and here's how we said it in
'75, and 15 there's nothing else wrong with the process except you 16 haven 't hurried fast enough.
Tha t is the part that I would 17 find appalling if I were a board member.
That part was not 18 in the document Tony originally suggested to us.
19 As for the specifics, with the exception of this 20 one section at the beginning I think the changes I have made 21 are,quite minor ind ones ! would expect we wouldn't have 22 much trouble with.
23 CHAI3 MAN HENDEII:
! think that is true.
Tha t is 1
24 why, as ycu said, I am werking the back end,.and : would 1
25 really p ref er to postpone the discussion about the f ron t end l
ALDERSCN REPCRT;NG COMP ANY. INC,
17 1 until we work through and see if we don't have pretty 2 general agreement.
3 Vic will take a crack at an intermediate sort of 4 diversion, and we can all look at that and come back to it 5 the next time we meet on 3.
6 I guess it would not be rorrect to assume that 7 because there is no mark in yours that we are all 8 necessa.rily in agreement, so let me ask on 3 would people 9 like to 10 COMMISSIONER AHEARNE:
( !ndica tin g. )
11 CCMMISSIONER GIIINSKY:
(Nods affirmatively.)
12 CHAIRMAN HENDRIE.
See?
I will agree here, but I 13 shall be cu t tc the quick if at some point this dccument l
l 14 does not say "as appropriate."
15 (Laughter.)
16 COMMISSIONER 3RADF0ED:
That is negotiable.
17 CHAIRMAN HENDRII:
Are there others on C?
18 (No response.)
19 CHAI3MAJ HENDRII:
D?
Since you have eliminated 20 the " inter alia."
21 COM".ISS!CNER 33ADF0ED:
I as following the 22 Gilinsky principle there.
23 CHAIFMAN HENDEII:
I wonder if that disallowed my 24 request to be toll for the 417th time what the damned phrase 25 means.
l ALDERSoN AEPCRTING CCMP ANY, INC.
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MR. COTTER:
Amc..g other things.
2 MR. ROSENTHAL:
If you didn ' t want that to be an 3 all-inclusive list, that is what the inter alla would serve 4 to indicate, that these were merely illustrative examples, a 5 favorite lawyer term.
6 CHAIRMAN HENDRIE:
I have never encountered it 7 anywhere else.
8 YR. COTTER:
You learn the first year of lav 9 school always to leave a door open.
to YR. ROSENTHAL:
e.g.
is another way.
11 CHA!RMAN HENDRIE:
All right.
I don't have any 12 problems with Peter's edits here..Are there other comments?
13 (No response.)
14 CHAIETAN HENDRIE:
E?
Hearing no cutcry I move to 15 F.
- s COMMISSIONER AHEARNE:
I guess I would prefer an 17 explanation.
well, Peter, 18 CHAIRMAN HINDRIE:
Yes.
I think l
19 talk ahcut the editing here.
As I read it it was for 20 clarity rather than changes in substance.
Ihat was certainly true of 22 the first two, and I intended it to be true of the third as 23 well.
I had difficulty Weaving my way through the 1
24 preopositional phrases.
25 CHAI?%AN HENORIE:
"So that rescurces would not l
ALCERSoN REPCRTING COMP ANY,INC.
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unnecessarily be used, because of the uncertainties 2 regarding the definitien of matters in controversy. which 3 would exist without the ruling."
4 I think it is perfectly credible English grammar, 5 but it is splendid.
6 COMMISSIONER ERADFORD:
I had no objection to the 7 thought if someone would feel more comfortable.
8 COMMISSIONER AHEARNE:
Is any author willing to 9 speak up for tnat phrase?
10 MR. CCTTER I can't remember.
11 MR. RICXWIT:
I am delichted to see it go.
12 YR. COTTER:
I have to find out whether I a:
13 quilty.
14 COMMISSICNER 3RADFCRD:
Well, if no one speaks for 15 it, then I would certainly not oppose its omission.
16 COMMISSIONER AREARNE:
Iou did not like the l
17 sta temen t "The Commission will make its best effort to 18 answer the questions promptly?"
19 COMMISSIONER BRADFORD:
Again, I have no objection.
l 20 CHAIRMAN HINDRIE:
It is just bitter experience 21 speaking on our side.
22 COMMISSICNEP READFORD:
I have no objection to the 23 thought, and if any of you st:cngly prefer having it in, I 24 can live with it.
I think it is 1.?.p licit anyvay.
l 25 cgn:RMAN HENORIE:
John, what is your preference?
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ALOERSON REPORTING COMP ANY,;NC, IN%9.4t%5vc
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COMMISSIONER 3RADFORD:
Agaf.n, I assume the appeal 2 board may always make its best effort.
3 COMMISSIONE3 AHEABNE:
All right.
'Je can just 4 drop it.
5 (Laughter.)
6 MR. ROSENTHAL:
I would say if the licensing board 7 is going to get this kind of guidance, we~should be in the 8 same boat.
I don't have a37 problem with that as it applies 9 to the appeal board.
10 CHAIRMAN HENORIE:
Sut you are more likely to do 11 it than we a re.
That is the problem.
12 COMMISSIONER 3RADFCRD:
Ooes it make an iota of 13 difference to you if that centence were in there?
Could you 14 imagine a situation in which one of these items would then-l 15 take priority over something when it otherwise would not?
l 16 Is that necessarily a good thing?
17 MR. ROSENTHAL:
Speaking for the appeal board I 18 would say that they make a practice of civing expedited i
19 consideration to requests for directed certification or 20 referred rulings.
I don't think that that has worked to the 21 sacrifice of the cases, but we do have a scr: of pecking 22 order in terms of how quickly we address matters, and it is 23 generally determined by a pragmatic test:
is this something 24 that really requires prompt attention?
Just as we give hich l
25 priority to appeals from decisions on intervention l
l I
A:.CERSON REPoATING COMP ANY, NC,
i 21 1 petitions, so too we give them on certification.
2 I think as f ar as I am concerned that that is a 3 statement I can cartainly live with, and I do not think it 4 would have any 5
COMMISSIONER BRADFCED:
I think what offended me 6 about it, and mildly so, was it seemed to me it would be to 7 perfect existing practice, and there was no reason for us to 8 be urging it on you.
9 MR. ROSENTHAL:
As long as we are going to give 10 these directions to the licensing board, I think it would 11 have the advantage of letting the licensing board know it is 12 not only they who are getting the exhortation.
That's the 13 only advantage I can see to it.
l 14 MR. SHAPAR:
Maybe the way to phrase it is the f
15 appeal boards will do it and the Ccmmission will do it when l
l 16 appropriate.
17 (Laughter.)
18 CHAI2 MAN HENCEIE:
I like that.
19 (lauchter.)
C05MISFIONEE 3RADFCED:
The broader point you just 20 21 made, though, Alan, I think there isn't any doubt whether 22 this entire document applies to the appeal board in those 23 situations where you take evidence.
24 2R. 30SENTHA1:
'ihich I hope will act be too many 25 more.
I ALDERSCN AEPCRTING COMPANY. ;NC, 5
22 1
(Laughter.)
2 COMMISSIONER BRADFORD:
I understand.
It isn't 3 that you would be being treated differently in the same 4 situation.
5 WR. 20SENTHAL:
No.
I think it is fair to say 6 that even though we do occasionally take evidence, this 7 would be interpreted as being directed essentially at 8 licensing boards rather than appeal beards..
9 COMMISSIONER AHEARNE:
I have no feelings about it.
10 CHAIRMAN HENDRII:
Strong feelings to keep it in?
11 (No response.)
12 CHAIRMAN HENDRIE.
Take it out.
13 (No response.)
14 CHAIRMAN HENDRIE:
I don't know.
15 MR. COTTER:
I like it.
16 COMMISSIONER BRADFORD:
If anybody likes it, leave 17 it.
I don't dis 11'a it tha t much.
18 CHAIRMiN HENDRIE:
As April's contribution to the 19 Richard A.
Kennady memorial --
l 20 MR. BICKWIT:
This wouldn't go far enough.
21 (Laughter.)
22 CHAIRMAN HENDRII:
Within 30 days?
23 (Lauchter.)
24 MR. BICKWIT:
Upon pain of.
1 25
( La ughter. )
l At.CERSON AEPORTING CCMPANY. INC.
W a
23 1
00M5!SSIONER ERA 0 FORD:
'iould you believe 30 days?
2 (Laughtar.)
3 COMMISSICNER AHEARNE:
Iony, let the record show 4 it is because of Mr. Cotter's statement that I am in favor.
5 CHAIE3AN HENDRIE:
You can add me in there.
I_
6 think it is useful for assorted reasons, although it is not 7 a great hanging point.
You can count me in for leaving it 8 in.
Leave it in.
9 And ??
Going once.
10 (No response.)
11 G?
12 (No response.)
13 H?
14 CCEMISSIONER 3RADEOED:
Let me ask abor: G.
How 15 would the board encourage a party to invoke summary 16 disposition?
Please make a motion.
l 17
- 32. COTTEE:
That's perfectly possible.
18 ZE. SHAPAR:
Sure.
They can invite a motion.
The t
i 19 board could say it seems to me this particular issue seems l
l 20 appropriate for summary disposition.
Is anyone gcing to 21 sponsor it?
If they apree the ps r ty would prepare the l
22 necessary papers.
i 23 COMMISSIGNER AHEAENE:
at raises a question.
24 Jhy would the board invite that mo t io r.?
25
?. 3. EMAPAE:
To speed the process.
l l
I l
r l
l ALCERSON AEPoRT NG COMP ANY. ANC,
24 1
COMMISSIONER AREAENE:
But why would the board 2 take that step?
Because 3
MR. COTTER:
Eecause the particular question --
4 CHAIR 5AN HENDEII:
Watch out, watch out.
He's 5 going to refer you to that case again.
6 (La ugh te r. )
7 COMMISSIONER AHEARNE:
Well, if they didn't think 8 it was worth it, why couldn't they just dismiss it without 9 asking for the summary motion?
10 MR. COTTER:
Because they would need some sort of~
11 test of whether or not there are facts to support it.
12 COMMISSIONER BEADFORD:
Can they not do this on 13 their own motion?
Can they not just tell the party that.
14 they are ;cin; to rule out the convention.unless something.
15 further is forthcoming?
16
- 52. ROSENTHAL:
They would have to have some kind 17 of record.
18 MR. BICKWIT:
Not under the rules they can't.
19 MR. EOSENTHAL:
.N e t under the rules.
20 CHAIE5AN HEND3IE:
That is what John is 21 complaining about.
Do you remember the case?
22 COMMISSIONEE BEADF0ED:
This is a sua sponta power 23 you would give th em ?
24 (Lauchter.)
i 25 CHAIEMAN HEF02IE:
That's right.
i ACERSON AEPORTING CCMP ANY, NC.
n.C. ?P&QJLM6th M446YLQ
25 1
COMMISSIONER AHEARNE4 This is not looking into a 2 new iscue.
This is an issue that has been raised.
3 Apparently here is an issue by the way this is being 4 discussed or talked about which the board thinks isn't worth 5 it.
6 ME. SHA?AR:
That raises another question.
Why 7 would a party not have gotten the idea th em selve s ?
The 8 answer to that question is it does take time and resources 9 to prepare motions for summary disposition depending on what 10 type of contingent is involved, and there are tradeoffs 11 involved in that kind of analysis.
For example, the 12 estimate may be it may take two or.three ho' Irs of hearing 13 time to actually go to hearing on it versus a week's 14 preparation on a motion fc: summary disposition with the 15 affidavits and everything else.
Those kind of tradeoffs are 16 being made all the time.
17 COMMISSIGNER SEADFCRD4 Alan doesn't lock as 18 though he believec it.
19 ME. 30SENTHAL:
I have frankly sn ot my bolt en 20 biomass.
21 (lauph ter. )
22 This debate is going cn in perpetuity, and I guess 23 that what to do with it is going to come up when, as and if 24 there is an intervention rule amendment before the house.
25 COM':ISSICNER AHEARME:
You are saying, I guess all ALCERSCN REPCRTING CCMPANY,INC, th
i I'
26 1 of you who arel familiar with the regulations gcVerning the 2 boards, that the board does not have its own authority to 3 say to the person raising the contention tha t so far you 4 jurt haven't made a case.
5 MR. BICKWIT:
It has the authority to reject the 6 contention if the standard is not met, but once it is in the 7 summary disposition rule is operative and can be invoked by 8 a party.
9 MR. ROSENTHAl:
They certainly can say to the 10 parties from where we sit we don't have a record on this 11 thing, but from where we sit it seems to be somewhat 12 doubtful as to whether there is a genuine issue of material 13 f act on this.
We are not prejudging it, but we think this
(
14 would be a very appropriate subject f or the parties to get l
15 back there and explore; and we would like to see a motion.
1 16 If in fact the adversary of the sponsor of the contention 17 concludes that it does not present a genuine issue of a l
18 material fact, there is nothing wrcng with that.
19 I took it that that is basically what the drafters l
20 of this had in mind.
1 21 CHAIRMAN HEND3II:
That is the way I read it.
22 MR. COTTjE:
It may be debatable, but I do not i
l 23 believe that we have fully in our proceedings the equivalent i
24 of the rivil proceeding failure to state a claim upon which 25 relief can be granted.
We have it only to the extent that l
ALOERSON AEPCRT!NG COMPANY,INC.
f 27 -2[:
1 it is perhaps a challenge to a rule.
2 NE. SICXWIT:
I think the analogy is in contention 3 p ra ctic e.
4 ME. COTTER:
( Nods af firma tively. )
5
%R. BICKWIT:
If the board decides against the 6 adzission of the contention, it is analogous.to decidfrg l
7 tha t a claim cannot be defined.
9 X3. SHAPAE:
The rule that says the basis of the 9 contention needs to be sta ted in your petition for leave to 10 intervene.
There is also an existing policy document of the 11 Commission, Appendix 80, Part 2, which gives further 12 guidance, such as a matter outside.the jurisdiction of the 13 Commission will not be admitted as an issue.
That, plus the 14 practice, add up to ! think what is an equivalent to what 15 Tony brought up.
16 MS. COTTEE:
And does not go as far as I believe 17 Commissioner Ahearne vculd like it tc.
18 MR. SHAPAR:
But that is another natter which the 19 Commission has reserved on today, and that is, raising the 20 contention barrier earlier in the process.
21 CHAIH5AN HEN DRIE :
'j ?
r 22
( La ugh te r. )
23 (No response.)
24 CHAIEMAN HENDRIE.
I?
25 ALCERSON REPCATING COMP ANY. INC.
9 29 1
C0!!ISSIONER AHEAENE:
When the Board is going 2 through its initial decision writing then_ it does not. in.
3 general have either explicit or implicit guidelines, that 4 every contention that is admitted must be_ addressed-5 explicitly?
6 3R. COTTEHs I don't believe it does.
It has 7 always been my view of administrative practice that-you-only 8 address those matters that you think are significant.
9 Simply had an all inclusive phrase at the end saying, 10 "everything else has been considered and deemed not worthy-11 of discussion."
12 MR. BICKWII:
I think there is some case law that 13 encourages the Board to decide the matter on its own even if 14 no proposed findings have been filed, but_there-is no right.
15 to it.
i 16 COMMISSIONER AHEARNE:
I guess I am making the 17 same point Peter is aiming at, probably, that it sounds like 18 the Board right now can choose not to address e xplicitly an 19 issue on which there has not been a proposed finding.
In 20 fact it sounds as if you are saying they can, in addition, 21 choose not to address an issue on which there was a proposed 22 finding if they conclude that is not a significant issue.
23 MR. BICKWIT:
I was not saying th e second, but the 24 first.
Yes, they cae.
This is encouraging the finding of 25 the proposed filinge by suggesting that if they are net l
ALCERSCN AEPCRTING CCMPANY,INC,
30 1
filed the Boards may not address it.
2 COMEISSIONER AHEARNE:
Do they have to address it 3 if there are contentions apon the Ecard having finished the-
.t hearing, they havt concluded it is not significant?
Eust 5 they address it if there is a proposed finding?
6 ER. BICKWITs Yes.
7 COMMISSIONER AHEARNE:
That's in the proposed-8 finding?
9 MR. BICKWIT:
I don't know, but I cannot imagine a 10 process under which they have admitted the contention there 11 is a proposed finding.
You have proposed findings of fact 12 and law and the Board simply ignores the filing.
13 COMMISSIONER AHEARNE:
So, what you are saying is-14 that the threshold they actually use on whether it is -
15 significant or not--
16 MB. BICKWITs The sig nif ican t threshold will come 17 into play if there is no filings.
18 COMMISSIONER AHEABNE:
Right.
19 MR. ROSENTHALs I think under present practice 20 without contrary instructions f rom the Cornission we would c
l 21 take a rather dim view of the Licensing 3 card decision which 22 totally ignored a contention admitted to the proceeding on i
23 which thera were propesed findings.
And I think tha t is the l
24 general expectation that the Board is going to say something 25 on it, and I don 't mean they vill necessarily write reams if l
l l
ALDERSON REPCRTING COMPANY !NC, NN
31 1
in fact they think it is a frivolity.
But they have got to 2 do something with it.
3 COMMISSIONER AHEARNE What would the Appeal 4 Board's position be on an admitted contention on which the-5 proponent of that codtention did not file a proposed finding 6 and the Licensing Beard did not address that contention?
7 MR. ROSENTHAL Well, the Appeal Board--well, it 8 night depend upon the particular circumstances, but I think 9 certainly I could say that the Appeal Board would not regard 10 that as per se improper the Licensing Board 's f ailure to 11 have addressed it.
I think as I indica ted a minute ago th e 12 Board would, if there were proposed findings in there.
- Now, 13 if the contention was introduced into the proceeding which 14 vent to a serious safety matter and there were 500 or 600 15 pages of transcript which suggested there was some merit to 16 that contention, and the Board ignored it sj.mply because the 17 intervenor who proposed the con tention didn 't put up 18 proposed findings, I think we would probably have something 19 critical to say about that.
20 COMMISSIONER AHEARNE:
- 4 hat was the problem this 21 paragraph is attempting to address?
22 MR. BICKWIT:
The problem is you might have 23 parties entering cubject matter into the record and then not 24 filing proposed findings.
Proposed findings, it was felt, 25 are helpful in expediting the proceeding because th e y f oc 7.s At.CERScN REPORTING COMPANY. iNC, em1YwSGVn
t' 32 1
the Board on the questions, and those findings can sometimes 2 be adopted by the Board.
3 MR. SHAPAR:
In theory, the Board can reach a 4 decision more quickly if it has proposed findings in front 5 of it than if it does not.
6 COMMISSIONER AHEARNE:
I understand the theory.
7 My question is:
I can see one or two issues.
On Issue 1,
8 there have been difficult issues heard in the evening on 9 which proposed findings were not filed requiring the Board 10 to do a let more digging through than they would have 11 normally.
Israe 2, tha t the people were dilatory in coming 12 in with their proposed findings, and this was a threat.
I i
13 didn 't know whether this was addressing either of those or i
14 just the theoretical concept.
I 15 MR. BICKWIT:
I cannot give you a factual basis..
16 Iheoretically, it was addressed to both of those theoretical 17 possibilities.
18
-COMMISSIONER BRA 0 FORD:
I had originally struck a l
19 dissection not for any of those reasons.
In fact, having 20 heard this discussion I don 't have a problem with the first 21 two sentences.
My problem comes with the third sentence.
22 There, Allen, I thought I was remembering that the 23 indecisions or conversations, a t least, you had indicated a 24 concern back along with the Licensing Board that simply 25 adopted proposed findings of fact, proposed by one party or ALOERSON AEPoATING COMPANY,;NC,
33 1 another without any independent analysis or reasoning of 2 their own.
3 MR. ROSENTHAL:
Yes, I have been critical of that, 4 -but it s till seems to me that proposed findings serve a very 5 useful purpose, and I am somewhat offended, frankly, when a 6 party introduces a particular issue into the proceeding and 7 then it is litigated.
When it comes around to proposed 8 findings time nothing is submitted.
9 COMMISSIONER 3RADFORD:
What I was saying is the 10 third sentence originally troubled me, and perhaps I 11 overbroadly struck the whole thing.
The third sentence, it-12 seemed to me, invited the Boards to do exactly what I 13 remember the Appeal Board hr.d on occasion frowned strongly 14 on in the past.
15 MR. ROSENTHAL:
Maybe it is susceptible to 16 interpretation.
I didn't read it that way.
Again, I would 17 vant to stress that I certainly was not suggesting that 18 Licensing Boards cannot carry over into decisions proposed 19 findings.
20 COMMISSIONER 3RADFORD:
No, I understood that.
21 MR. ROSENTHAL:
As I think I have indicated, I 22 have seen from time tc time a decision which was almost cover to cover a carbon copy of what had been submitted by 23 24 one of the parties and that troubled me.
25 MR. CCTTERs I would be interested to see which ALOERSCN REPORTING COMPANY, INC.
svn
\\
34 1 one that is.
2 MR. ROSENTHAL:
To see?
4 -
3 MR. BICKWIT I think it is just a policy 4 question.
Do you want to encourage this practice?
If so, 5 keep the third sentence.
It doesn ' t say much.
You will 6 have more adoption of proposed findings of parties than if.
7 it's in there, if it's not in there.
If you don 't want to 8 encourage it, take it out.
If you want to encourage it, 9 leave it in.
10 COMMISSIONER BRADFORD:
Well, I would drop it.
i 11 The fact is the Boards will do a moderate amount of it 12 anyway.
13 COMMISSIONER AHEARNE:
You then would have no 14 problems with the first two sentences?
15 COMMISSIONER BRADFORD:
I would have no problem 16 with the first two sentences.
17 COMMISSIONER AHEARNE:
Fine.
l 18 CHAIRMAN HENDRIE:
Drop the last sentence and i
19 restore K to its rightful place.
20 COMMISSIONER AHEARNE:
Is the phrase, " fair and 21 thorough" a better more explicit definition of "high i
22 quality"?
23 MR. BICKWIT:
I think that is what the authors 24 meant, " fair and thorough".
i 25 COMMISSIONER AHEARNE:
I was sure I could have ALCERSCN REPORTING CCMPANY. INC, I
35 1 gotten a more humorous answer cut of you all.
2 (Laughter.)
3 COMMISSIONER BRADFORD:
I am happy with that one.'
4 CHAIRMAN HENDRIE:
How about appeal proof?
5 (Laughter.)
6 COMMISSIONER BRADFORD:
That's great.
7 COMMISSIONER AHEABNE:
Oh, no, no, no.
You don't 8 retlly want that.
Fair and thorough is fine.
9 CHAIEMAN HENDRIE:
Let's see.
The Commission 10 expects the decisions not only to continue to-be f air and 11 thorough,but also that the decisions will be issued as soon 12 as practical up to the proposed findings of fact and 13 conclusions of law.
How about a period?
14 COMMISSIONER BRADFORD4 Good.
15 CHAIEMAN HENDRIE:
We owe it to ourselves and 16 mankind to try to make it run briskly on th ro ug h.
If the 17 plant is ready, that's fine.
If it isn't we can stand 18 around and charge negative interest or some thing.
39 ME. BICKWITs Not only that, this statement as 20 draf ted applies not only to OL proceedings, but all kinds of 21 adjudicatory proceedings.
22 CHAIRMAN HENDRIE:
Of course.
COMMISSIONER BRADFORD:
Except that the beginning 23 section in either form focuses p-etty specifically on the OL 24 25 plants.
ALOERSON REPoATING COMPANY, INC,
36 1
MR. BICKWIT:
It is obvious that if you accept 2 tha t language that that will be the motivation for this 3 statement.
Nonetheless, it applies even to enforcement 4 proceedings.
5 COMMISSIONER BRADFORD:
I must say, Joe, I don't 6 mind saying somewhere in here it is a coal of oltr operating 7 license process that it should be concluded,. assuming that 8 the plant is qualified by the time itself is completed.
9 CHAIRMAN HENDRIE:
But I think that should go back l
10 in the early parts.
Yes, I think that is h elpf ul.
When we-11 say it I think that we note that that is particularly the l
12 case with regard to operating license proceedings where you 13 have something which is maybe in a situation where it could l-14 operate if the proceeding were finished and not characterize 15 the statement.
I would like to have it in there, but back 16 here to say the reason we want the decisions to issue is to 17 ensure that the plants will operate is to get the proceeding i
18 oVOE+
19 COMMISSIONER BRADFORD:
Okay.
20 CHAIRMAN HENDRIE:
The last paragraph?
21 COMMISSIONER BRADFORD:
Again, it's not what I 22 really micded, but we seem to be setting ourselves up as a l
23 brooding omnipresence.
CHAIRMAN HENDRIE4 I was looking at th e 24 25 accordingly one, and I wanted to ask Tony if there was any ALDERSON REPORTING COMPANY, INC,
a 37 1 problem with that.
I assume since he agreed with it, there 2 wasn't, but I wanted to give him a chance.
3 MR. COTIER:
I think I wrote it the first time.
4 CHAIRMAN HENDRIE All right.
The Section 4 5 Commission Monitoring, yes, I have no objection. to dropping 6 that.
Okay, we now have a Section 3, except that Vic needs 7 to do some draf ting on A, which we vill look at.
8 No w, let's go back and take a look at the front 9 end of the thing.
One and two.
Well, let's try one.
10 Peter?
11 COMMISSIONER BRADFORD:
Do you want me to describe 12 the theory of what I have done?
13 CHAIRMAN HENDRIE:
I think I perceive it, but you 14 know, as the inventor you are entitled to explain.
15 COMMISSIONER BRADFORDs Well, basically the 16 document as drafted seemed to cite the wrong his tory.
That 17 is, it is af ter all si tee TMI ve have spoken to the general 18 policy of how licensing proceedings ought to be conducted.
19 And it just didn't seem to me to he right to be saying to 20 the Boards that the only thing basically ve saw wrong with 21 the licensing ' rocess was that it moved too slowly.
It is 22 going back and saying, as I mentioned earlier, we told you 23 how to do this in
'72.
We told you again in '75 and now we 24 are really telling you.
It just wasn't quite the flavor !
25 thought should come out of this document.
So, what I was l
l ALCEBSCN AEPCRT:NG COMP ANY, INC.
38 1
trying to do was ref erence it to a somewhat different p iece 2 of history that suggested that while we were indeed 3 interested in expediting and we did indeed have a particular 4 set of problems on our mind at the moment, we alsc retained 5 an interest in a balanced process.
6 COMMISSIONER AHEARNEa If I could speak to that 7 for a moment.
8 CHAIRMAN HENDRIE John.
9 COMMISSIONER AHEARNEa I agree and disagree or 10 disagree and agree.
I disagree that it's the first time we 11 have spoken to the Boards.
We have spoken to the Boards 12 several times since Three Mile Island.
The most explicit 13 initial was when we basically told them, stop, because the 14 staff is not ready to come to you on a whole-host.of-15 things.
So, we don't want you dealing with these issues.
16 The second time we spoke to them we said since we 17 haven't yet reached a final conclusion on a number of these, 18 ve don't want any of your decisions to be-final until we 19 have looked at them.
So, I would say in general we 've 20 spoken to the Boards a number of times.
21 COMMISSIONER 3RADFORD:
In a general sense, yes, 22 but not really about the licensing process and its inner 23 workings.
24 COMMISSIONER AHEARNEa It's not the process, but 25 we have spoken to them about the kinds of isrues to which ALDERSCN REPCATING COMP ANY. INC,
l 39 i
1 they were supposed to particula rly react to. -Modifications 2 of what were and were not tssues as a result of Three Mile 3 Island.
I j ust wanted to say that.
On the rest of it I 4 would agree with your point.
I had no problem with Tony's 5 original background, so I think tha t whereas.the OGC 6 proposal goes too far in one way, I would suspect your's 7 goes too far in the other direction.
Tony's-was just a j
8 basic statement.
9 CHAIRMAN HENDRIE:
Now you are going to make me 10 look for another paper.
11 COMMISSIONER AHEARNE:
Well, here (indicating).
j 12 CHAIRMAN HENDRIE:
Do you have it?
13 COMMISSIONER GILINSKY:
Do you mean Toby's 14 original?
15 CEAIRMAN HENDRIE:
Yes.
16 COMMISSIONER GILINSKY:
No, I don 't have it.
17 COMMISSIONER BRADFORD:
I do.
18 CHAIRMAN HENDRIE:
It is pretty snappy and to the 19 point I must say.
l l
20 Now, if we wanted to look at Tony 's version--
21 COMMISSIONER AHEARNE:
As an alternative I would 22 have no problem if it started with Peter's mark-up on Page l
23 2-COMMISSIONER GILINSKY:
I was going to suggest we 24 25 start with Peter's mark-up on Page 2, but add something at ALOERSoN REPCRTING OoMPANY. INC.
u0 1
the end of the statement along the lines of Peter's first 2 page, not necessarily using those quote s, just so it is 3 clear that this is not a broad side against the hearing 4 process that we want the system to function better,-and it 5 ought to.
But at the same time make clear that we think the e hearing process is important.
7 CHAIRMAN HENDRIE:
How does that strike you, Peter?
s COMMISSIONER 3RADFORD:
That sounds fine.
9 CHAIRMAN HENDRIE:
As the basis for further work?
10 COMMISSIONER BRADFORD:
Yes.
There is one other 11 thought on Page 1 I would like to salvage if I could.
The 12 last three sentences, which isn't really directly tied into 13 wha t came before it, and which Tony could hardly have 14 written in to his own proposal.
15 COMMISSIONER AHEARNE:
I would be willing'to buy 16 sta rting with "The Commission appreciates".
COMMISSIONER BR ADFORD:
I would suggest keeping 17 18 that regardless of whether you rewrite what comes before it, 19 because it is really a sepa rate thought.
COMMISSIONER ANEARNE:
And we could leave "for 20 21 other places."
COMMISSI0 tier BRADFORD:
It doesn't have to be kept 22 23 right there.
COMMISSIO!IER AHEARNE:
We could leave for other 24 places the discussion of who made the problems.
25 ALCERSON REPCRTING CCMPANY, INC.
evwwsuoVEvc
41 1
COMMISSIONER RRADFORD4 Right.
2 CHAIRMAN HENDRIE:
Why don 't we start at the top 3 of Peter's Page 2 and get the thrust of the things which 4 follow, and at some point in that or at the end of it then 5 these last three sentences on Peter's Page 1 would appear.
6 I don't know whether--how much of the quotes and so on.are 7 appropriate.
8 COMMISSIONER GILINSKY I was thinking of putting 9 this at the end of the whole statement.
10 CHAIRMAN HENDRIEs I see.
COMMISSIONER GILINSKY I mean, usually, the ideas 11 12 in Peter's Page 1 are at least what ! take to be the sense 13 of it.
14 COMMISSIONER 3RADFORD That's fine with me.
15 COMMISSIONER AHEARNE:
I have no problem with his 16 changes on Page 2.
17 Let's see, before I scan down once more through 18 those changes, what I would suggest is if the document is 19 going to open here that we need a paragraph to go above the 20 place where it says " Historically NRC operating license reviews have been completed and license issued."
And I 21 22 think the 'tind of thing that it needs before that is--I 23 don 't know.
V.aybe that first paragraph out of Tony *-s.
"The Commission has reviewed the docket of the OGC and the 24 25 current status of proceedin gs concerning public meetings, ALOERSoN REPCRTING COMP &MY. INC,
42 1 and the Commission has examined at length all the major 2 components involved in licensing proceedings."
And-then 3 find a transition sentence that says, "We think it 4 appropriate," and not comment on the hearing process.
What 5 I am looking for is a transition to get this business about 6 the OL delays f ramed so that it is an element, clearly an 7 outstanding element, but an element of the overall. thing, 8 rather than the whole subject.
Otherwise, the paper starts 9 out with the OL problem, and it seems to me ve ought to say, 10 look, we are making a statement on the hearing process.
11 Ihere are some correct problems of a fairly serious nature, 12 and then one might say particularly in the operating license 13 process, and then on to, " Historically, NRC has been able to 14 do this, but now we have this problem, and here is ehy.
It 15 could be a very expensive proposition," which is the thrust 16 of the rest of it.
17 COMMISSIONER BRADFORD:
It sounds fine.
18 CHAIRMAN HENDRIE:
As long as I am' waving hands 19 over dords you haven 't got to look at, why don't I try 20 comething along tha t line or ge t Linda to try something 21 along that line just to get it started.
If it looks like if 22 we stand back and it doesn 't appear it is needed, we can 23 always go back and start out where you are at the top of 24 Page 2.
It seems to me d' needed a headline in there in the 25 editino.
ALCERSoN AEPoRTING COMPANY,:NC, 4 tem
43 1
COMMISSIONER AHEARNE:
All of Page 2 is fine as 2 far as I am concerned.
3 CHAIRMAN HENDRIE4 I don 't have any problem ~ with 4 the editing.
It gets the point.
5 00MMISSIONER AHEARNE:
And I don't have any 6 problem with the rest of that I on Page 3.
)
7 CHAIRMAN HENDRIEs The top of Page 3 it says, "The 8' Commission, theref ore, is issuing this policy-statement on -
9 the need for the balance and efficient conduct of all phases
_i 10 at the hearing process."
It seems to me that af ter tha t 11 sentence is a prime opportunity for the three sentences at
]
l 12 the bottom of Page 1, and this would then f orm a paragraph I
13 by itself.
i 14 COMMISSIONER BRADFORD:
Yes, I.think tha t tha t is l
15 fine.
16 CHAIRMAN HENDRIEs And then I guess go on with the 17 balance of what you have there on Page 3 as marked up on 18 Page 3.
Do I see agreement?
COMMISSIONER AHEARNE:
Fine.
19 COMMISSIONER BRADFORDs (Nods affirmatively.)
20 21 CHAIRMAN HENDRIEs I see either nods or neutral 22 emotions.
A circular motion of the head is neutral.
MR. COTTEns I should say the Boa rd certainly 23 24 appreciates the sen timent e xpressed.
I want to thank you in 25 the three sentences moving to Page 3.
ALDERSON REPCRTING COMPANY. INC, M
44 1
CHAIRMAN HENDRIE:
Enough of this coddling.
2 MR. BICKWIT:
Aren't you going to insist on 3 starting the statoment off with those sentences?
4 MR. COTTER:
No, I am just happy to see it there.
5 CHAIRMAN HENDRIE:
Okay.
Now, what about general 6 guidance?
7 COMMISSIONER AHEARNE:
I will go for Peter's as.
i l
8 long as it is attributed.
9 COMMISSIONER BRADFORD:
You don't mean alternative 10 3?
11 CHAIRMAN HENDRIE:
Instead of the Commission t
l 12 thinks, well, you could say, " Commissioner Bradford thinks."
l l
13 (Laughter.)
14 COMMISSIONER AHEARNE:
Right.
15 CHAIRMAN HENDRIE:
Maybe Version A could go back 16 in this new section.
17 COMMISSIONER AHEARNE:
Lynn, had you intended for 18 the modifications in 202-A to say that you would keep the 19 first paragraph of general guidance?
20 MR. BICKWIT:
That's right.
1 21 COM,MISSIONER 3RADFORD:
Oh, I didn't understand 22 that.
CH AIRM AN HENDRIE:
I think the first paragraph 23 24 aside frCs the fact that it states the obvious is not bad 25 stuff.
l ALDERSCN REPORT lNG CCMP=NY, iNC, I
49
'1 COMMISSIONER BRADFORD:
Yes, I have no problem 2 with the first paragraph.
3 COMMISSIONE2 AHEARNE:
I would like to say I 4 thought 202-A was well written and sound.
5 MR. BICKWIT:
Well, you can't please everybody..
6
( Laughter. )
7 CHAIRMAN HENDRIE:
The first paragraph is all 8 right with you?
9 COMMISSIONER GILINSKY:
Yes.
10 CHAIRMAN HENDRIE:
Under general guidance we vill 11 keep the first paragraph and the ad hoc committee's 12 version.
A little while ago there.is a short section 13 paragraph at the bottom of Page 3 and the top of Page 4, 14 which-is struck, and we now look at the ad hoc group's.202-A 15 and we'll look at Peter Bradford's editing on same.
16 We get almost to the middle of the page with that 17 change except Peter, could you--what is the incommensurate ?
18 COMMISSIONER BR ADFORD :
If you can swallow that at 19 all, it ought to say safety or environt. ental.
By the way, 20 the basic point is that it is conceivable that a Board 21 dealing with a party with limited resources and a serious 22 safety issue might for some reason feel a need to grant an 23 extension or a valver of rules or procedures in some way and the minute that gets done there is an element of prejudice, 24 25 at least to the applicant's interest in having a decision as ALCERSoN REPCRTING COMP ANY, INC,
46 1 soon as possible, and also, perhaps, the applicant's
[
2 interest in not having the matter pursued further.
3 What I am saying is, if there is a serious safety i
4 or environmental concern there and it does seen serious j
i 5 anough that the Board is prepared to alter the schedule to j
6 give a party with limited resources a chance to raise it
'7 effectively, I think one must recognize there will be a a small element of prejudice, maybe a large element of 9 prejudice in getting the issue flushed out.
10 COMMISSIONER AHEARNE:
This, of course, is j
11 preceding a later discussion which at some 6ther time we i
12 will be having, but if it were not a serious safety or I
13 environmental concern, in other words, if it were not 14 serious, vculd it have been in admitted contention?
15 COMMISSIONER BRADFORD.
Possibly.
The standard 16 for admission of contentions is not that they be serious 17 safety or environmental concerns.
l
\\
18 CHAIRMAN HENDRIE:
Just that they be related.
COMMISSIONER BR AD FORD 4 I don't remember what the 19 20 exact words are.
21 CHAIRMAN HENDRIEs Related to safety or environmental standards in some fashion.
22 COMMISSIONER BRADFORD:
One can imagine to take a 23 24 bile mask, purely hypothetical situation, one which the 25 Soard would not be inclined to be patient with.
l l
l ALDERSoN AEPoRTING CCMPANY,INC.
47 1,
COM5ISSIONER AHEARNE.
Except there are many 2 members at senior levels of the Commission who apparently 3 f elt that was a serious issue.
4 COMMISSICNER BRADFORD:
Who felt it was a 5 legitimate contention.
Now, if that contention survived in 6 the proceeding, if the interpleaders had pleaded for vast 7 extensions of time in order to pursue some aspect of 8 discovery or anything else that vent before summary 9 judgment, I can imagine the Board taking a fairly dim view 10 of granting those kinds of extensiot 7 if the-issue-were one, 11 and this is clearly suggested in the surviving paragraphs on 12 Page 2, when the Board starts balancing the seriousness of 13 the issue in with the other considerations.
There may be 14 situations in which it would feel extensions were in order, 15 and that is really all I am trying to get at here.
The 16 sentence as it stands without my insert to it really says 17 that the Board cannot take account of special circumstances 18 faced by a participant if it would result in prejudice to 19 other parties.
And that seems to me to be a little bit 20 strong.
21 MR. BICKWIT:
Our concept was basically that if 22 there is prejudice then it ough t to be a voided, and if what 23 you have is a serious safety concern, that that is an appropriate factor to consider in deciding what sanction is 24 25 appropriata.
I think the Commission can go either way on ALDERSoN REPORTING COMP ANY. INC,
48 1 this, but I think what you are asking is should you take 2 into account the nature of the safety concern being pursued 3 in deciding what is right and wrong, or should you take that 4 into account in deciding what kind of sanction you-are going 5 to impose, having acknowledged that it is wrong?-
6 COMMISSIONER AHEARNE:
Well, I will stick with 7 that.
~
8 COMMISSIONER BRADFORD:
But the word " sanction"~is' 9 hard to deal with.
There a re sanctions which are pure 10 sanctions.
That is, for example, of the ones listed here 11 varning the offending party.
Of course, that doesn ',t really 12 prejudice their substantive ability to put on a case.
On 13 the other hand, if you go to the sanctions involving denial of cross examination or dismissal of the contention,.then 14 15 you are really imposing a sanction which is not like a fine 16 or a penalty.
It really says that regardless of the merits 17 of that contention it will not be in this proceeding any 18 more because you have violated a conduct.
MR. BICKWIT:
That is the point I am making.
That 19 20 is where you ought to weigh under this concept the nature of 21 the safety concern.
Do you simply warn and grant the 22 extension, or do you throw the contention out?
And I think 23 it is highly relevant to that decision what the nature of 24 that contention is.
005%ISSIONER GILINSKY:
If it's a serious matter, 25 ALDEASoN REPCRTING COMPANY. INC, I
49 1 do you expect the Board to raise it itself?
2 MR. BICK91T That is an issue which maybe we will 3 come to.
That is certainly an option if you stay with the.
4 existing sua sponte rule.
5 COMMISSIONER AHEARNE:
Peter, could you put your 6 point in?
Well, first, if you don't disagree with Lynn's.
7 argumant that it shouldn't go to whether it is.right or 8 wrong, but whether it should go to what sanction, could you 9 fold that thought in on the second page where he is saying 10 in selecting a sanction?
11 COMMISSIONER 3RADFORDs My difficulty, th o ug h, is 12 with this sentence as it stands, because it really.does say 13 that the only way you can take into account special 14 circumstances are ways that don't prejudice-the position of 16 other parties.
I think tha t that is too strong in the case 16 of serious concern.
17 If You have a situation in which someone says I 18 just cannot meet a filing deadline because my witness has a 19 schedule or what have you, and I need a 30-day extension, of 20 course the applicant and conceivably others will say, well, 1
21 tha t prejudice gives me 30-days worth.
And in a, case where 22 the contention did not strike the Board as all that 23 important even if it had gotten into the proceeding, maybe 24 one would be prepared to say we are not going tC--we just 25 can 't give you that sort of time.
But if it really seemed ALDERSCN REPORTING CCMPANY,INC,
50 1 to be of funda: ental is;crtance, I wculd rather the Scard 2 did f eel tan t it rould give the 30-day extension, even if 3 there were an element of prejudice.
4 ER. SHAPARs Perhaps a var of assaulting it 5 quickly is to say that the Board should see that this does 6 not unduly prejudice other parties.
7 C0!!ISSIONER BEADFCED:
If it says it dees not 8 result in undue prejudice to other parties,-! think that 9 would help.
10 CHAI3 MAN HENDRII:
We don't need " undue" if we go 11 03.
12 00!!ISSIONER 32ADFORD:
No.
I as saying you can 13 substitute the phrase, depending on what you de with the 14 rest of it then.
15 CHAIE5AN HENDRIE:
Does that see sene vha t--
16 3R. E!CK7IT:
Well, it is a different concept.
17 You are still san tioning.
The question before you is de 18 you want to sanction the failure to meet deadlines of the 19 Board because of special circunstances when that results in 20 prejudice?
And the answer to that can te either yes er no, 21 but that is the question you want to address.
22 MR. SHAPAE:
I suppose you ran argue there is 23 always a little prejudice when the Scard extends a time 24 which other parties have taken into account and they are 25 seneduling.
So, I guess in th e re al verld, undue is ALOEASCN 4EDCCNG COvpaNY. NC.
6 AtfL RW. WNTON. O G. M4 202) 554 2345
51 1 probably what we mean.
2 MR. COTTER 4 I think that is true.
Prejudice 3 carries two connotations.
One of them is that which goes 4 with dismiss with prejudice, which means a final elimination 5 of a right or remedy, and the second runs through all kinds 6 of shades of meaning in terms of a disadvantage or a 7 sanction or a curta11 ment of one party's right by virtue of 8 the leave granted another.
So, that, to the extent tha t-9 someone is obligateu to file something within 30 days and 10 they are given an extension of 30 days, in addition that 11 does prejudice the party to whom they are responding.
But 12 it is not undue prejudice.
13 CHAIRMAN HENDRIEs Yes, I guess it is undue 14 prejudice that I mean.
It is impossible to go along even in 15 part with any party's view on any issue without some small increment of prejudice to other party's appearing.
16 00MMISSIONEP AHEARNE:
Except in some cases when 17 someone asked for an extension the other parties say th,e y 18 19 have no objection.
And then granting that extension, I I
20 think would at least in normal times not prejudice them, j
21 since they have already said they have no o bjection.
MR. CCTTER:
Or they are willing to swallow it.
22 CHAIRMAN HENDRIEt That's right.
That just means 23 24 they are willing to swallow whatever increment of prejudice, 25 undue prejudice then to other parties, period.
i ALOERSCN REPORTING COMPANY,INC, 5
52 1
COMMISSIONER AHEARNE:
I would have preferred to 2 have followed Peter's point into the sanctions.
3 COMMISSIONER GILINSKY :
How is that now?
4 COMMISSIONER AHEARNE I was agreeing with Lynn's 5 point that the first issue is, is it right or wrong to have 6 this?
In this particular case, extension.
If it's wrong, 7 then--
8 COMMISSIONER GILINSKYa It's not right or wrong.
9 It's do we want to allow it or do we not want to allow it?
10 00EMISSIONER AHEARNE:
The first question is, 11 should they meet their schedules, yes or no?
And they don't 12 seet their schedule.
Is that right or wrong?
I thought 13 Peter's point was, well, whether you say that is wrong 14 depends upon the significance of the issue they are 15 raising.
And in this proposal of OGC's, it is constructed 16 in such a way that says, yes, that is wrong, and then what 17 do you do about it being wrong?
You put a sanction.
But 18 that sanction then, the severity or type depends upon a 19 number of factors.
I was saying that I felt that would be 20 the place to put the issue of is this a serious safet/
21 question they have raised, or a series environ =tntal 22 question that they have raised in addressing what is the J
l 23 sanction.
24 MR. BICKWIT:
May I try to sharpen this?
I think 25 that this particular sentence confuses to some extent the ALDERSCN REPORTING COMPANV INC.
53 1 question of right and wrong and what kind of sanction is 2 involved.
The next sentence does ndt.
If you look simply 3 at the next sentence and start with the fact that a party 4 aay have personal or other obligations or possess fewer 5 resourecs than others, to devote to the proceeding, does not 6 relie7e it of the hearing obligations that must be met to 7 avoid such prejudice, to avoid prejudice to other parties.
8 CORNISSIONER BRADFORD:
To avoid undue prejudice?
9 MR. BICKWIT:
Then ask the question, are you 10 comfortable with the sentence in that way, or do you need 11 " undue" in there?
I think that focuses the issue a little 12 better.
You are then deciding is it okay not to meet your 13 schedule if prejudice results, or in some circumstances, 14 would you say it is permissible, it is okay?
15 COMMISSIONER BRADFORD:
That as I say--the answer 16 to that to me seems to be clearly yes, in the context of a 17 party pursuing a contention.
18 3R. BICKWITs I guess the question is in some 19 cases would you say there is no obligation?
20 COMMISSIONER BRADFORD:
No.
It is a balancing in 11 terms of how much additional time the pa rty needs and how 22 seriously you take what it is they are--
MR. BICKWIT:
And that is the question.
Do you 23 balance the nature of the safety concern in determining what 24 25 the oblication is of the party to comply with the schedule?
ALDERSCN REPORTING COMPANY. INC,
~
T@th RA KM4 tK@ GibfGcs
54 1
COMMISSIONER BRADFORD:
Yes.
2 MR. BICKWIT:
Your answer is yes, and our proposed 3 concept was no, and that is really the issue you ough t to 4 decide, and we can draft it any way you like after you 5 decide it.
6 COMMISSIONER AHEARNE:
And that is where I was 7 coming down in agreement with Lynn.
I would say, no, that 8 does not in any way relieve you of the obligation.
But not l
9 having met the obligation it is a factor and can be a major.
10 factor.
11 MR. BICKWIT:
In determining what should be done 12 about it?
13 COMMISSIONER AHEARNE:
Hight.
14 If they accept the first part which says, "The 15 Boards should take whatever steps are possible."
16 MR. 3ICKWIT:
I am suggesting striking that for 17 purposes of focusing the issue.
At least deal with the next 18 sentence.
l t
jg COMMISSIONER GILINSKY:
Then are you strikine the 20 last part of that second sentence about prejudice, which 21 refers to the sentence you have just struck?
l 22 MR. BICKWIT:
I would strike "such".
COMMISSIONER GILINSKY:
Does not relieve it of 23 24 m ee ting its hearing obligations, period.
COMMISSIONER BRADFORD:
Yes, that's right.
25 ALDERSoN REPcATING COMP ANY, ;NC, 65tBM f6)A. AM4 (RTFa 'h8R0
55 1
MR. BICKUITs (Nods affirmatively.)
If that is 2 the concept, the question again is, do you want to define 3 these obligations in terms of the seriousness, the safety 4 issue?
5 COMMISSIONER GILINSKY:
It seems to me the only.
6 way you can have a party lose its rights and in effect to 7 participate in the hearing because of lateness is if at the 8 same time you instruct the Boards to take these issues up on 9 their own if they are sufficiently serious.
Then you can to just say, very well, if the parties haven't met the 11 schedule, they lose certain rights.
But you cannot say tha t 12 no matter how serious the issue it will be dropped from the 13 hearing because someone missed a schedule.
14 COMMISSIONER AHEARNE:
You can.say if the Board 15 believes it is that serious an issue and the party has not 16 been pursuing its obligation, the Board can drop it from the 17 hearing.
But, the Board can then refer it to the Commission 18 saying here is a serious issue which was raised and dropped 19 from the adjudicatory hearing because the party did not 20 pursue it.
21 COMMISSIONE3 3RADFORD:
Except you will find up 22 losing more time than you will save that way.
COMMISSIONER AHEARNE:
I don't think any at all in 23 24 my concept that I just outlined.
You just' leave it out from 25 the hearin7 ALOERSON AEPCRTING CCMPANY, INC, AR FME4 ffWe P20 8009
56 1
COMMISSIONER BRADFORD:
But suppose the Commission 2 then says take it out?
3 COMMISSIONER AHEARNE:
I would assume, since it is 4 not part of the hearing, the Commission could examine the 5 issue on its own.
6 COMMISSIONER BRADFORD:
I suppose it could, but at 7-that point somewhere you have a three-quarters prefiled 8 testimony that an expert was going to present, and I suppose 9 the Commission could fund him to finish it, but meanwhile it 10 has gotten out of the context of the proceeding.
11 COMMISS'.'ONER AHEA RNE:
It would just explore that 12 issue as it explores them in uncontested hearings.
13 MR. COTTER:
The more you talk or write about an 14 area like this the more traps you set.
I.think there are 15 sanctions in the proceeding.
There are sanctions in the 16 rules, in the original statement that I proposed that said 17 there are sanctions in the rules and you should be aware of 18 theo and they should be used in appropriate cases.
19 MR. BICKWIT:
The problem I think is, I think th o 20 Boards--and I am not the one who is the authority on
)
21 this--but I would think the Boards would want guidance on 22 the question of do we or do' we not take into account the 23 particular circumstances of a party in deciding whether to 24 grant the extensions?
It is a very basic point.
I don't 25 think the Commission should decide on that.
ALDERSoN REPoATING CCMPANY,INC.
57 1
- 52. ROSENTHAL:
That is one of the hardest things 2 a Board has to confront.
It's one of the few things that is 3 covered in this paper, not in the rules.
We see it all the 4 time.
We have a party who doesn't need a deadline, doesn't 5 apply for in extension, and their explanation for all of 6 this is, you know, we have limited resources.
We are not t
7 like the applicant who has someone sitting on top of the t
8 case at all times and we are all by ourselves and we were 9 out of the country for a voek or two and we got back and 10 found your order, and all of that.
Then the applicants come 11 back and stand up and say, look, if that person is going to 1
l l
12 be a partiripant in this proceeding, they are going to be a 13 participant.
They will be held to the same requirements as i
14 anyone else.
And if you go along with that at this point i
15 the result will be two weeks delay and this, that and the 16 other thing.
And this has a big price tag.
17 Now, I t s.4 n d to think tha t is the one area in this 18 whole paper, from my vantage point, wh e re the Commission 19 ought to be giving some guidance.
To what extent does this 20 Commission wish the Boards to lend a sympathetic ear to tha t 21 kind of pitch, assuming that the Board feels in the 22 particula case that it is a genuine complaint?
Vov, you 23 can look at it in various vays.
You can take the position 24 that, hey, if you come inte one of these proceedings you 25 have got to live by the rules like anyone else.
I ALCERSON REPORTING CCMPANY,INC,
58 1
MR. COTTER:
Except the staff.
2
- 53. ROSENTHAL:
Oh, no.
Well, the staff now is 3 under the whip; aren't they?
4 ER. SHAPAR:
Why do you except.the staff?
The 5 staff is responsible to the Connission.
6 MR. RCSENTHAL:
You could alternatively take the 7 positiv; that you vill be solicitous.
8
- 53. SHAPAR:
A nuch higher taxnaster should 9 say.
10
- 53. ROSENTHAL:
You can't decide in policy it individual cases, but I really do think, and I speak now for 12 appeal boards, my own area of experience.
But this is 13 somewhere where the Cozzission has to in the vernacular, 14 bite the bullet and give cose indication.to the Boards.as to 15 how they want to approach this kind of situation, because it 16 arises all the time.
17 COMMISSIONER 32ADFORO:
Allen, I agree vf h what 18 you are saying, but I don't see how the two ways lynn has 19 formulated the issue helps very such.
In one case you are 20 deciding in advance th a t it is all right for in;ecunious 21 intervenors to slip deadlines a little bit.
The alternative 22 is to say no, it is not all right.
Rut we vill take into 23 account the importance of your contention in deciding what 24 sanction to apply.
It seems to se you vill cc:e out exactly 25 the sane place, whichever way you state that dile:na.
And J
ALOE:ScN AE?oAtNG 00VP ANY. lNC.
NG v1f2PCLQ AVit RW e WOGhalNGTON, CA 200:4 t:02) 554-2345
59 i
1 wha t the Commission really has to do is to lay down the 2 quid 311ne as to wha t the factors it wants balanced are.
I 3 suppose it could say it doesn't want any balancing done.
4 You meet the deadline or you aru out.
5 COMMISSIONER AHEARNE:
Peter, moving back to my 6 previous question.
If there are contentions that are 7 admitted and are not serious ones, then there really is a 8 difference, because under the first formulation you take 9 into account whether the individual is impecumicus or to whether or not they have an oblication, and it is irrelevant 11 how serious the issues are.
12 MR. BICKWIT:
But weren't you going to incorporate 13 that concept in your formulation ?
14 COMMISSIONER BRADFORD:
Yes.
Also, you get-15 smarter about the different issues and the diff erent 16 intervenors as the proceeding goes along.
It say be by the 17 end of the proceeding you can see that a particular 18 intervenor, even though he has pressad a serious 19 consideration, he isn't pursuing it very accurately, and 20 that might enter into the Board 's consideration of what kind 21 of behavior it is willing to put up with.
I am perfectly 22 prepared to say that we expect all parties to meet their 23 hearing obligations regardless of financial state.
Where I 24 start having difficulty, though, is if the statement then 25 goes on to imply that the sanction for failure to meet your ALCERSCN REPORTING COMP ANY. :NC, m.cunu msvem %GwwSGvcL
60' 1 obligation is dismissal of your contention, or.should be.
2 dismissal of your contention.
2-3 COMMISSIONER AHEARNEs It ought to be a 4 possibility.
5 COMMISSIONER BRADFORD:
It is a possibility.
6 Maybe we don't differ that much.
I &m not saying it should 7 not be a possibility, but it ought to flow automatically.
I.
8 an a little bit lost as to where we now are with the actual-9 document here.
10 MR. BICKWIT Can I try on that part?
What I 11 would suggest is the second and third sentences be combined 12 so that they would read, "While the Board should endeavor to 13 conduct a proceeding in a matter which takes into account 14 the special circumstance faced by the participant, the fact-15 tha t a part,v may have personal or other obligations or 16 possess fewer resources than others to devote to the 17 proceeding, does not relieve it of the hearing obligations 18 which must be met to avoid prejudice to other parties."
19 COMMISSIGNER GIIINSKYa How about its hearing 20 obligations?
21 MR. COTTER:
Period.
22 MR. BICKWIT You could say "its haaring 23 obligations."
"Ihe hearing obligations which must be met to 24 avoid such prejudice," or, "The hearing obligations which 1
25 must be met to avoid undue prejudice."
ALDERSoN REPORTING COMPANY. lHC,
_,C@ VIR$1NIA AG @.W., W@HINGToN. O.C. 20024 (202) 554 2345, _ _ _ _
i 61 1
COMMISSIONER BRADFORDs I don't have objections to 2 the sentence as you read it ending with obligations, but 3 that depends upon what comes next.
4 COMMISSIGNER AHEARNEa In my naivete on this 5' terminology, I would have thought that if meeting its 6 hearing obligations is even stronger than meeting its 7 hearing obligations or the obligations must be met to avoid 8 prejudice to the other party's hearing obligations, I would 9 have thought would have meant that once they agree to a 10 schedule they would have ta meet it, even if the other party 11 said it's all right to slip.
But obviously, that is not.
12 COMMISSIONER BRADFORDa I think what we are 13 tending toward is accepting the formulation.
If one 14 considers those things when it comes to sanctions,-rather 15 than stating the principle.
1e COMMISSIONER AREARNE:
I certainly scree with 17 Lynn's rewrite.
18 CHAIRMAN HENDRIE:
All right.
Then we have 19 Lynn's.
While the Board sh o uld endeavor to conduct the 20 proceeding in a manner that takes account of the special 21 circumstances faced by any participant, the fact that a 22 party may have personal or other obligations or possess fever resources than others to devote to the proceeding, 23 24 does not relieve it of the-- or its shape, or I would say 25 its hearing obligations.
ALCERSoN REPORTING COMPANY. INC.
62 1
MR. SICKWIT Its hearing obligations.
2 CHAIRMAN HENDRIE:
"Its hearing obligations.
And 3 the proposition is to put a period.
4 MR. BICKWIT (Nods af firmatively. )
Very good.
Then--
8
- 53. BICKWIT I would support Peter's deletion of 7 the next sentence.
8 COMMISSIONER BR ADFORD :
I originally deleted it_
9 because it seemed to me to be pretty redundant, the second 10 sentence.
11 CHAIRMAN HENDRIE:
Yes, okay.
Th e ne xt sentence 12 deleted--you struck all the way down and started at the top 13 of the next page, Peter, with "in selecting a sanction"?
So 14 far we haven't mentioned sanctions, and I think maybe we 15 need something in here.
16 COMMISSIONER BR AD FORD :
Correct me if I am wrong.
17 Will this list of sanctions come as a revelation to the 18 Board members?
19 COMMISSIONER AHEARNE:
It may come as a revelation 20 that the Commission is willing to endure the Boards using 21 them.
z; MR. COTTER:
I certainly support that statement.
23 MR. BICKWIT Ihere are two different things here:
24 the listing of the sanctions is one concept.
But th e re is a 25 sentence abefe that which coes beyond listing the ALDERSoN REPORTING CCMPANY iNC.
WR 63 1 sanctions.
2 COMMISSIONER BRADFORD:
Yes.
All right, you are.
3 right.
4 Now, there I guess I need a list of cases.
I mean 5 the fact that there may be one case were Tom Bev111's 6 drifter causes trouble or some analogue to Tom Bevill's 7 drif ter's trouble doesn 't leave me prepared to turn. the.
8 scr.ews on all proceedings everywhere if, in : f act, there are 9 a number of cases in which sanctions have been applied or 10 haven't been, then perhaps I could be persuaded.
I don't 11 know of tnem now.
12 MR. BICKWIT:
This is the problem we always f ace.
13 We base these recommendations not on any knowledge of all of 14 the facts of all of the cases in the past, we base them.
15 really on statements made from this side of-the table 16 (indicating) that Boards have been reluctant to use 17 sanctions in the past, even though they clearly have the 18 legal authority to use them.
I know of one case that I have 19 analyzed where I would not have been critical of the Board 20 for failing to use sanctions, and this sentence is worded so 21 that it is not critical of the Board.
It simply states that i
22 in the new climate the sanctions tha t have been used are not j
~
23 appropriate to what should be done now.
COMMISSIONER GILINSKY:
I would leave it out and 24 25 just go on and talk about what we thought should be done.
4 ALCERSON AEPCRTING COMPANY, INC,
I 64 1
COMMISSIONER AHEARNE:
Leave what out?
2 COMMISSIONER GILINSKY:
It is the Commission's 3 view that sanctions have not been imposed on the past, et-4 cetera.
5 COMMISSIONER AHEARNE:
I would obviously prefer to~
6 leave it in.
7 COMMISSIONER GILINSKY:
I don't think anyone here.
8 has sufficient experience with the hearings to make_that-9 statement on the basis of, you know, being able to back it 10 up.
11 MR. BICKWIT:
I know I don't.
12 COMMISSIONER BRADFORD:
More importantly, you 13 don 't have to make it to make a broader point, that the 14 Commission is endorsing the use of sanctions in. cases.
15 COMMISSIONER GILINSKY:
You may well be correct.
16 I think it is just too susceptible of misunderstanding.
17 Let's just say what we think ought to be done.
18 COMMISSIONER AHEARNE:
What I thought cught to be tg done is more use of sanctions than have been used in the 20 past.
So, I was endorsing this because it was saying what I 21 thought ought to be done.
22 MR. COTTER:
I would like to review that with my 23 people.
CHAIEMAN HENDRIE:
I think we break probably too 24 25 far in and too far out.
I need to get from the agreed uron ALDERSON REPCRTING COMPANY,:NC,
l 65 l
l I sentence above which ends obligations, period.
I need some l
2 vay to get into the question of sanctions.
I need to say 1
3 something like, "when a participant fails to meet its l
l 4 obligations, the Board should consider- "
5 MR. SHAPAR:
Or the imposition of sanctions.
6 CHAIRMAN HENDRIE:
Or something lik e that.
And 7 then from there either go on and talk about-the spectru=
8 from minor to severe, and for exangle, or not, dep9nding 9 upon what we like.
But anyway, that gets us to the top of 10 the next page where we can get into the business of selecting a sanction.
There tre these things to be 11 12 considered.
I think you want to get this stuff in the next 13 page in, but you need a transition.
14 MR. BICKWIT:
Just take this one:
"When any 15 participant fails to meet its obligation," in the sentence 16 that was struck, romma, and then you go from there to a 17 board, at the beginning of the next sentence, "a board 18 should consider the imposition of sanction against the 19 offending party."
20 CHAIRMAN HENDRIE:
Is that okay with people?
21 COMMISSIONER 3RADFORD:
Well, my proposed 22 transition--but it depends upon wanting to jump all of the 23 way to the top of Page 2.
It would be just to go from the 24 phrase, "its hearing obligations," where we start to, "in 25 selecting a sanction to meet these obligations, the Board ALOERSoN REPORTING COMP ANY. INC, r.va m
i 65 1 should cocsider- "
2 CHAIEHAN HENDRIE:
That vculd do it.
I just need 3 a transition.
4 COMMISSIONER AHEARNE:
I think it is important, 5 very important, for then to know whether the Ecard would 6 approve the use of this list of sanctions.
I cculd live 7 with your proposed modification.
8 CHAIREAN HENDRIE:
'4hich one?
9 COH5ISSICNER AHEARNE:
The one you proposed to 10 Lynn.
11 CHAIRMAK HENDRIE:
You would prefer to have the 12 one that says--
13 COEMISSIONER AHEARNE:
I would prefer to have it 14 as it is written.
15 CHAIREAN HENDRIE:
I understood that.
But you 16 would prefer the longer formulation which allows one-to go I
17 through the list.
18 COMMISSIONE3 AHEARNE:
Yes.
I could agree with i
19 dropping "The Boards for example could warn- "
20 CHAI3HAN HENDEIEs I must come to a stopping place 21 because both Commissioner Gilinsky and I are about to fall 22 under the table.
COMM ISSION E3 BRADFCPD:
You are all done at the 23 24 end of the next page, hichever way we come out on it.
25 CHAIRMAN HENDEIE:
Peter, let =e ask if you could ALDERSoN REPCRTING COMP ANY. INC,
O e
67 1 go along until further discussion, because it's the longer i
2 one and one could strike more easily than put in.
3 Lynn, would you do II along the lines you just 4 said?
Okay?
That is, "When a party fails to. meet its 5 obligation, the Board shcald consider the imposition of 6 sanctions against the offending party."
Then strike the 7 next sentence.
I think the spectrum comment, okay, and then 8 the e xa m ple s.
And then we can see how it lies to keep that 9 in or to make the shorter transition.
I think there is to stuff on Page 2--
Does this adequately cover the point 11 about how you tailor the sanctions?
12 3R. SICKWIT:
I don't think so.
I think you need 13 to include Peter's concept in there.
14 CH AIRM AN HENDRIE:
That's what I wanted.
Does 15 that have to go over there or can it come in here?
16 MR. BICKWIT:
I think it can.
17 CHAIRMAN HENDRIEs Would you please do that, then?
18 MR. BICKWIT:
Yes.
19 CH AIRM AN HENDRIE:
The last pa rag ra ph.
20 COMMISSIONER AHEARNE:
I agree with Peter's.
21 MR. DENTON:
I wanted to comment on t,he last one l
22 only on the last two sentences in that I don't anticipate 23 such a gross number of slippages that we would have to 24 report on a monthly basis one memorandum covering all 25 proceedings I think it is appropriate we cover by memoranda ALCERSCN REPORTING COMPANY, !NC.
68 1 which would be served on all parties, and I hope that would 2 be rare.
3 COMMISSIONER AHEARNE:
The person who should be' 4 getting the memorandum is EDO, and this is an attempt to try i
5 to get at the point that the licensing Scard has raised in a 6 number of places, and a number of 3 cards have raised the 7 issue.
How do the Boards ensure that the sanagerial side of 8 the Agency is keeping abreast of slippages due to the staff?
9 COMMISSIGNES BRADF0ED:
let's see, is the EDO the 10 right person to put this duty on ?
There is-of ten room for 11 some interpretation as to who is responsible for slippage.
12 Do we perhaps want to know about situations where in the 1
13 Board's judgment the staff is responsible for slippage.
14 Supposing that the EDO takes the position that sure, there 15 has been slippage in this case, but it is not us.
It is the 16 Commission's fault.
i 17 COMMISSIONER AHEARNE:
It says EDC should advise 1
the Commission and provide an explanation.
18 19 COMMISSIONER 3RADFORD:
But the ECO wouldn't i
20 necessarily know that it's the Board's view that the Staff i
21 is responsible.
22
- 53. BICKWIT:
The Scard is ;iven no role in this 23 particular paragraph.
24 COMMISSIONER AHEARNE:
You are right, yes.
The l
25 Board should.
My original concept is the Board shculd put ALCE.AScN AEPCRT:NG CCMP ANY. iNC,
69 1 EDO on notice because he is the direct individual to push on 2 and then the Commission should also knew.
3 COMMIESIONER BRADFORD:
Fine.
4 HR. DENTON:
If the Board were to play a role I ~
5 think you would want to know from the Board-any parties who-6 were causing delays, especially from the EDO if the staff 7 were.
8 COMMISSIONER 3RADFORD:
But the point is, Harold, 9 the Board has sanctions they can easily apply against the 10 other parties.
The party that the Board really doesn't have 11 an ability to apply much of sanctions against is ne staff.
12 My original concept wa s tha t the Board should be encouraged 13 to utilize its sanction authority on the other parties, but 14 how do you come to grips with the staff side?
And that was 15 to try to formalize a mechanism to put the EDO Commission on 16 notice.
17 MR. R3SENTHAL:
It seems to me, though, if the 18 Boards are going to become involved in this process the y 19 ought to be presenting their concerns to the Commissioners 20 and not--
21 MR. SHAPAR:
By then the Commissioners will have 22 to go to the EDO and ask why there was a delay.
MR. ROSENTHAL:
I don't think so.
23 24 MR. SHAPAR:
The staff will tell the Commission in 25 some cases, because we didn't put enough pecple on it, and ALCERSON REPCRTING COMP ANY, INC.
70 1 in other cases because we were waiting for information from 2 the applicant.
And I guess the Commission would want to 3 kncy that.
4 CHAIREAN HENDRIE:
look, rewrite this last 5 paragraph so that when the staff is responsible for a delay 6 the Board no tifies the Commission and the EDO will then 7 explain to the Commission in a separate memorandum why that 8 has occurred; okay?
9 COH5ISSIONER AHEARNE:
Just as an aside, let me 10 point out that I found the EDO to be, when I raised similar 11 points'in the past with him, he is very responsive.
And in 12 the cases in which I raised it, that information had not 13 been brought to his attention.
I must say the EDO is much 14 more responsive on issues raised through him than the 15 Com misrion usual.'.'7 is on issues raised to it.
16 MR. 00SENTHAL:
That is perverse.
17 COMMISSIONER BRADFORD:
The ED0's freedom of 18 thought in those situations is more limited than the 19 Commission's.
20 CHAIRMAN HENDRIE:
Put a footnote, copy to the 21 ED0; ekay?
22 Now, Peter, you have an insert in here which I 23 don't understand.
- 53. BICKWIT:
Yes, I have trouble with that.
24 25 CHAIRMAN H EN DRIE:
Why don't we just say when the ALDERSON REPCRTING COMP ANY. INC,
i 5
71 1 NRC staff is responsible for the delay of a proceeding--I 2 don 't know, the Board will or should notify the Commission?
3 COMMISSIONER BR ADFORD :
That is probably all 4 right.
The word " obligation" is here.
It seems to me to 5 refer to hearing obligations.
And what I am trying to get 6 after is that after all we considered the staff to have 7 broader culigations than merely getting papers filed on 8 time.
9 CHAIRMAN HENDRIE:
Why don't we cut it back to 10 delaying the progeeding, because that is really what-we are-11 after here.
12 3R. COTTER:
I would like to suggest that th a t 13 paragraph be more in the form of a footnote.
14 COMMISSIONER AHEARNE:
Why?
l 15 ER. CCTTER:
Because it sounds to me the Board is 16 being told that as f ar as running its preceeding is 17 concerned, it should say to the staff, if you don't do what 18 I tell you I will tell on you.
I think it is demeaning.
l 19 MR. BICKWIT:
It was the potential that it be 20 demeaning that had us put the obligation not on the Board 21 but on the staff itself.
22 MR. COTTER:
I think it is demeaning to the Board 23 in the proceeding.
24 MR. SHAPAR:
I vote for a footnote, but for 25 different reasons.
ALDERSCN REPORTING CCMPANY,INC.
%PP'&RO
72 1
(laughter.)
2 CHAIRMAN HENDRIE:
All right.
I guess I am not 3 going to get out o'f this so quickly.
A little more 4 discussion.
You would prefer not to have the Roards--
5 MR. COTTER:
This is a direct admission that the -
6 Board doesn't have control over its own proceeding with 7 respect to its staff.
8 COMMISSIONER AHEARNE:
But, Tony, the Boards have us essentially statements saying that, expressing 9 sent 10 frustration.
11 MR. COTTER:
I haven' t really gotten into it yet -
12 because I would throw the staff out of one of these 13 proceedings if they don't meet their deadlines one of thece 14 days.
15 CHAIRMAN HENDRIE:
What did you say in your 16 section?
17 MR. BICKWIT:
I don't think anything.
18 MR. COTTER:
I said there are sanctions, use 19 them.
The Commission wishes to emphasire the failure of 20 anybody to comply with any obligation imposed by the Commission, so an obligation without good cause will result 21 in appropriate sanctions which would include in extreme 22 cases dismissal of that party from the,roceeding period.
23 COMMISSIONER GIIINSKY:
Including this staff?
24 MR. COTTER:
I would love it.
25 1
ALDERSCN REPORTING COMPANY,INC,
73 1
COMMISSIONER GILINSKY:
Actually, I wonder why the 2 staf f is at some of the proceedings at all.
3
- 33. C3 TIERS Me, too.
4 (Laughter.)
5 COMMISSIONER AHEARNE:
That is a different 6 discussion.
That was last year 7
(Laughter.)
8 CHAIRMAN HENDRIE:
Yes.
That is a different 9 discussion.
10 MR. COTTER:
That was a different decade.
11 CHAIRMAN HENDRII:
There isn't any other footnote 12 in this document and I am not sure it qualifies under the 13 Administrative Procedures Act without any footnotes.
Is 14 that the case?
15 MR. BICKWIT:
I know you want to get out of here, 16 but our concept was just put the obligation on the staff to 17 inform the Commission where there has been a delay.
The 18 staff is supervised by the Comnission and ought to be able 19 to--
20 MR. SHAFAR:
The staff, rather than the ED07 You 21 are making a distinction between them.
22
- 33. BICKVIT:
No, I am making the distinction 23 between the Board and staff.
I am saying why not sinply have the staff acknowledge when it has not met its deadlines 24 25 and let the Commission know of that.
AL::ERSCN AEPCRTING COMP ANY. ;NC.
A
....., -., n
74 1
MR. ROSENTHAL:
Does the Fifth Amendment come into 2 the picture?
3 (laughter.)
4 MR. COTTER:
I think that is more acceptable, much 5 more acceptable.
6 COMMISSIONER BRADFORD:
But^the paragraph is 7-drafted to address a set of concerns the Board has raised to 8 us.
9 MR. COTTER:
I though t we were applying 10 across-the-board.
This is what it said up until then, and 11 then it had a little requirement for the staff to report to 12 the EDO when they ran into a problem.
13 CHAIRMAN HENDRIE:
Yes, well, I don't mind.
John l
14 would like to say Boards tell us when the staff and the EDO 15 can explain?
Tony said he'd just assume that staff l
16 recognize its own delay-inducing proclivities and report 17 itself to the Commission so the Board didn' t have to.
And I 18 don't much care.
19 COMMISSIONER BR AD FORD :
Why don't we just let the l
20 footnote say the full range of sanctions, whatever they are, l
21 apply to the staff as well.
In addition, the 3 card should 22 let the Commission know.
COMMISSIONER AHEARNE:
I would oppose that.
We 23 24 are tied so many times by this so-called and I am sorry, ex 25 par te rule.
One of the things we are tied in is we don't ALDERSoN REPCRTING COMPANY. !NC,
75 1 really know what the staff is doing in these hearings.
We 2 don 't know about their presenta tion of testimony, the 3 details of the pr.oblems they are struggling with.
To then 4 also say, besides which we aren't even going _to try when 5 they are delaying things to find out about it to move them 8 forward, we will wait until the Board issues a sanction to 7 them.
The Boards and the staffs are two elements who in 8 theory are part of the same agency.
9 COMMISSIONER 3R ADFORD:
let me try it another 10 way*
Do you want to know every time the staff is at a 11 deadline?
It is easy to figure that.
12 COMMISSIONEE AHEARNE:
I want the Boards to go to 13 the EDO when the staff is missing its deadline so the Board 14 should be telling the EDO their people have not met their 15 deadlines.
And if this is becoming a problem,.the EDO i
18 should be coming to us on it.
17 COMMISSIONER 3RADF0ED:
Well, it is easy to lay 18 the duty on the staff to send a copy of any requests for an 19 extension of deadlines up to us.
What gets harder?
CCHMISSIONER AHEARNE:
At times the staff isn't 20 21 making requests for extensions.
They seem to be just coming 22 in at some stage and saying, well, we are just not ready COMMISSIONER GIIINS'<Y:
Should the Peards apply 23
(
l 24 sanctions to the staff as well as to others?
i 25 MR. POSENTHAL:
Suppose that the staff is late on l
ALDERSCN REPORTING COMPANY. INC.
76 1 an SER?
What are you going to say, you are out of the 2 proceeding?
We will go ahead without the SER?
3 COMMISSIONER AHEARNE:
The staff is not a party-4 like the other parties.
5 MR. DENTON:
We tend to be a check valve.
If we 6 are not there it is because we haven't completed an 7 affirmative finding.
We co uld always go ahead on schedule 8 and say, no, we don't think it meets GED Schedule 33.
The 9 reason for the delay is we are trying to get information to 10 determine the other side of the question.
11 MR. COTTER:
I think it would be very interesting 12 if you threw the staff out.
13 MR. ROSENTHAL:
Me, too.
14 MR. COTTER:
I bet the industry night have l
15 something to say about it.
1 16 MR. SHAPAR:
And I think it would contribute to 17 public health and safety.
18 COMMISSIONER 3RADFCED:
Oh, please.
19 (Laughtar.)
20 MR. ROSENTHAL:
Does your client endorse that 21 statement?
22 (Laughter.)
COMMISSIONER ERACF0ED:
As a practical matter I 23 24 think Harold's point is quite right.
You cannot throw the 25 staff out without terninating the proceeding.
There are ALOERSCN REPCATING COMPANY, INC,
77 1 findings the Agency has to make.
2 MR. COTTER:
That 's precisely my point.
3 COMMISSIONER AHEARNE:
Rut, Tony, these are 4 elements--that both the staff and the Board-are elements of 5 the Commission, and when one element of the Commission does i
6 not meet its obligations the appropriate way for that to be 7 resolved is not for the other agent to say, you're out.
8 MR. COTTER:
That's correct.
The appropriate way 9 is for the presiding Board to say, you will have that piece 10 of work in by such and such a time after the staff has said 11 how many man hours or whatever it is it would take to do 12 that.
And then the staff rould be. required to respond to 13 that.
14 MR. SHAPAR:
And t '..a t is the question Whether or l
l 15 not the Board does or the Commission is going to establish l
16 the Commission's resources and how?
17 MR. CORNELL:
You slso run into a problem.
One 18 Board might say you have to have this one, and another--the 19 staff only has finite resources and it goes back to how you 20 vant to manage it.
00MMISSIGNER AHEARNE:
That goes back to my 21 22 point.
The only thing to do is to call this delay to the 23 attention of the EDO because that is tne place where under 24 our assistant those resources are controlled and allocated.
25 I think the things I called to the E00's attention he had l
ALCERSCN AEPoRTING CCMP ANY. INC.
L
~
78 1 not known about.
2
- 53. SHAPAR:
The same members of the staff can be 3 working on an uncontested case reviewed by the Commission, 4 and the same people could be needed in a hearing case.
l 5
CHAIRM AN HENDRIE:
Enouch.
The only question I 6 have with regard to this paragraph is, is the staff counsel 7 and the project manager going to tell the EDO they are 8 having to drac foot in a proceeding, and the EDO then has to 9 explain to the Commission?
Or do we ask the Boards to rat 10 on th em ?
Okay?
Draft it so the staff is expected to tell 11 the EDC when they are filing for extended time and he vill l
12 provide explanations as he thinks necessary.
A number of 13 these will be quite routine, and I would not expect him to 14 write us a memorandum for routine ones.
Where he has a 15 problem and it is hanging things up, then I expect his to 16 write us a memorandum.
Okay?
Write it in that fashion and 17 we will look at it again.
Okay?
i 18 COMMISSIGNER AHEARNE:
We will look at it.
19 CHAIRMAN HENDBIE:
Since we are now half an hour 20 past the point which Commissioner Gilinsty and I became 1
21 physiologirally unable to deal with this matter, I declare 22 this matter-- Wait, you are going to redraft two?
23 MR. BICKWIT:
(Nods affirmatively.)
24 CHAIRMA3 HENDRIE:
Also redraf t--
25
- 13. SICKWIT:
Redraft the whole thing?
ALOERSCN REPCRTING COMPANY iNC.
_ __400 VIRGINIA AVE., S.W., WASHJNGTON, D.C 20024 (202) 554-2345
~
~
79 1
CHAIRMAN HENDEII.
Yes, I am going to try i
2 something.
If you will come and see me, I will wave hands 3 over that piece of language I was going to dc You are 4 coing to try a thing at the beginning.
3-A.
5 COMMISSIONER GILINSKY (Nods affirmatively.)
6 CHAIRMAN HENDRIE So, you have that to pick up.
7 Okay.
Let's try to d'o it then real quick, maybe this 8 afternoon, in the hopes that we don't lose momentum on 9 this.
Okay?
10 (Whereupon, at 4: 30 p.m.,
the hearing adjourned.)
11 12 13 14 15 16 17 l
18 i
19 t
20 21 l
22 23 24 25 ALOERSON REPORTING COMPANY. :NC.
_... _ _, _ _ _ _. 400 VI AGINIA _ AVE., S.W WASMNGTCN. O.C. 20024 (202) 554 2345
I
^
NUCLEAR REGULATORY COMMISSION
- - - 1.
. This is Oc certify that the attached proceedi 5s befcre.the t
I i
in the matter ef:
Commission Meeting Date of Proceeding:
April 22, 1981 l
Docke: liumber:
l Place of ?roceeding:
Washington, D.
C.
.+-
,e E
sere. held as herein appears, and tha: this is the criginal transcrip thereof for the file of the Cc~, mission.
Sharon Filipour Official Reporter (Typed) w$re,>hbXW Cfficial Reporter (Signature) 5
s l
3 i
- March-30,1981 t5,
/
+...+
POLICY ISSUE (Commission Meeting)
(
l t
t i
To:
The Commission l
From:
Leonard Bickwit, Jr., General Counsel
Subject:
Draft Policy Statement on the Efficient Conduct-of Licensing Proceedings ~
l Discussion:
OGC has prepared the attached draft policy statement which is intended to combine elements of the draft statement submitted to the Commission by the Licencing Board Chairman and the alternative draf t letter prepared by the Executive Legal Director.
The ASLAP, ASLBP, and OELD have provided us with comments on the draft, which we have I
incorporated.
recommend that the Commission issue the attached statement.
The ASLAP has no objection to its issuance.
This revised l
draft differs from the earlier versions in one major respect - it does not address scheduling.
There is no reference to how quickly the hearing should commence after issuance of the staff SSER or how quickly Board decisions should be issued after the l
record is closed.
Those matters were addressed in the Statement of Considerations l
i accompanying the proposed procedural rules that have been published in the Federal i
Register for comment.
We suggest that
Contact:
i;
_ T ':_ T _ ^J s
tical to advance copies which were distributed to DUPLICATE DOCUMENT f
81, gy be the subject of discussion among other Entire document previously on meeting on Revised Licensing Procedures on entered into system under:
r f)0//hhh]f i
ANO a
F:
No. of paces:
//
7 w
~;f G ', :C A.:m 1C n; Cd.
4 wn M*.
O KECO h
0 April 21, 1981 f h.
",g SECY-81-202A 5 G d;e y
\\; u POLICY ISSUE (Commission Meeting)
For:
The Commission From:
Leonard Bickwit, Jr.,
General Counsel
Subject:
PROPOSED AMENDMENT TG~ DRAFT POLICY STATEMENT ON EFFICIENT CONDUCT OF LICENSING PROCEEDINGS Discussion:
On Wednesday, April 22, 1981, the Commission will meet on the Draft Policy Statement on the Efficient Conduct of Licensing Proceed-ings, SECY-81-202.
A subject touched upon but not treated fully in the Draft Policy i
Statement is the boards ' response to the failure of parties to fulfill their obliga-tions.
We believe this is worthy of more detailed Commission guidance and, therefore,
)
[
have prepared a modification to the Draft Policy Statement for your consideration.
The attached paragraph would be inserted. in the statement in lieu of the second paragraph of Section II, General Guidance.
Comments of the Executive Legal Director and the Chairmen of the Licensing and Appeal Panels have been incorporated in this i
nodification.
(
( h ' ( k,,
I 1
Leonard Bickwit, Jr.
General Counsel i.
._m, r-
'i':
SECY NOTE:
This paper, which is identical to advance copies which were distributed DUPLICATE DOCUMENT on April 20, 1981, is scheduled for Entire document previously discussion at an open Commission meeting ent ered into system under:
on Wednesday, April 22, 1981.
X/b/L180///
^No a
N o.
of pages:
k e m,,,.
~u