ML19345H274
| ML19345H274 | |
| Person / Time | |
|---|---|
| Issue date: | 04/23/1981 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| Shared Package | |
| ML19345H275 | List: |
| References | |
| REF-10CFR9.7, RULE-PR-2 SECY-81-111A, NUDOCS 8105010464 | |
| Download: ML19345H274 (62) | |
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UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
4 DISCUSSION OF REVISED LICENSING PROCEDURES 5
6 PUBLIC MEETING 7
8 Nuclear Regulatory Commission Room 1130 9
1717 H Street, N.
W.
10 Washington, D. C.
11 Thursday, April 23,1981 12 The Commission net, pursuant to notice, at 13 3.00 p.m.
14 BEFORE:
15 JOSEPH 5.
HENDRIE, Chairman of the Commission i
JOHN F.
AHEARNE, Commissioner 16 VICTOR GILINSKY, Commissioner PETER A.
BRADFORD, Commissioner 17 STAFF PRESENT:
18 L.
BICKWIT 19 S. CHILK H. SHAPAR 20 A. ROSENTHAL I. CCTTER 21 M.
MALSCH H. DENTON 22 23 24 25 l
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CHAIRMAN HENDRIE:
If we will come to order and 3 reduce the number of meetings in the room to just the one 4 being chaired here, the Commission will move on this 5 afternoon with another meeting in its series of revised 6 licensing procedures.
7 What I would like to do this afternoon is to see 8 how the Commission appears to stand on questions of Board 9 sua sponte powers, on the one hand, and thresholds for 10 contentions, on the other, and we also have a last-minute 11 retyped version of the policy statement which the counsel's 12 office has produced sm oking off the presses just a minute 13 ago reflecting our assorted edits and comments of 14 yesterday.
I would like to get to '. hat, too, if possible.
15 Going back to the first two subjects, Len, if I 16 ask you to guide us into these, will that put you in an l
l 17 embarrassing position?
18 MR. HICKWIT:
That has never stopped you.
19 (Laughter.)
20 CHAIEMAN HENDRIE:
If you would rather that I 21 flounder ahead, why I guess I could. But why don't I ask you l
22 to start us into it.
1 1
23 MR. BICXWIT:
The sua sponte powers.
When this 1
24 was discussed earlier the threshold question was related to 25 whether you wanted to consider this on its own or whether i
l l
ALDERSON REPORTING COMPANY,INC.
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this Was to be taken up only in the context of some 2 generalized statement with respect to the hearing process in 3 general.
4
. We recommended that it was something that could be _
5 considered on its own without regard to a full explication 6 of the rationale for the hearing process.
Obviously that -
7 would form the backdrop of various Commissioners' reactions 8 to various propositions, but we did not feel it was l
9 necessary to avait some kind of formal statement.
10 Iou have a request that was made and satisfied 11 with respect to the furnishing of some kind of data base.
12 It was asked is this a f actor that consumes a lot of staff 13 time and do the boards in f act make use of this power i
14 occasionally or more frequently than that, and you now have 15 papers from various effices on that question.
16 I think it also ought to be noted before you start 17 the discussion that there are a number of options that can l
18 be taken in this area.
19 Some that come to mind and have been mentioned 20 before at the table are to deal with the general matter in l
21 the policy statement.
22 Seyond that to deal with the rule either by 23 eliminating it or modifying it in a wa y under which the 24 boards vould retain the power but would not exercise it 25 without first coming to the Commission or first going to the l
l AL::ERSoN REPORTING COMPANY. INC,
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staff.
2 If the route is taken that the Commission should 3 be consulted first, then you have the additional sub-options 4 of how does the Commission express itself.
Does it give 5 approval?
Is the proposal to go f orward on the sua sponte 6 basis considered approved unless disapproved?
These are all 7 matters that are before the Commission.
8 I would suggest that you take it from thero, Mr.
9 Chairman, and then proceed to get reactions as to what 10 options various Commissioners look apon with f avor.
11 CHAIRMAN HENDRIE:
All ripht, let me do that.
12 There are these assorted possible ways of treating 13 or not treating the subject.
14 Would the Commissioners prefer to comment or would 15 rou like to hear f rom Messrs. Rosenthal and Cotter?
16 COMMISSIONER AHEARNE:
I am always glad to hear 17 from Messers Rosenthal and Cotter.
18 CHAIRMAN HENDRIE:
I guess I would prefer the 19 latter.
Since Allen gotten something written down to us, do 20 you want to summarire those views?
I 21 MR. ROSEXTHAL:
I was going to simply stand on 22 the 23 CHAIRMAN HENDRIE:
Stand on the written word.
24 (Laughter.)
25 COMMISSIONER AHEARNE:
He schmitted a written ALDERSON AEPCRTING COMPANY,INC,
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testimony.
2 MR. POSENTHAL:
! did you a large favor in 3 reducing this to writing as I thought you didn't have to 4 hear me.
5 COMMISSIONER BRADFORD:
You did.
6 (laughter.)
7 MR. ROSENTHA L:
But again just in a sentence or 8 two I endeavored in this paper to set forth my concept, and 9 I think that concept is shared by most of my colleagues, 10 with regard to wha t the hearing process is all about.
11 Against that background I indicated the reasons w h,7 it seems to us that the sua sponte auth ority should be 12 13 retained.
14 I did indicate that while it is not our perception I
15 that this authority has been abused either by licensing l
l 16 boards or by appeal boards th a t we would have no problem if 17 the Commission decided to condition the exercise of that 18 authority upon the obtaining of prior Commission approval.
19 I did note in that Commission that if the 20 Comnission adopted that option we would be very hopeful tha t 21 when that approval was sought that the Commission would
(
22 either grant it or deny it with some degree of expedition in 23 order to avoid the proceeding being held up.
24 I would just say as I did in the paper that we i
l 25 think that the Diablo Canyon planned proceeding was a very 1
i ALDERSCN AEPoRTING CCMPANY,!NC,
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good illustration of why this kind of authority should be 2 retained.
Here was an appeal board in Diablo Canyon that 3 was called upon to determine a contested issue, to wit, th e 4 adequacy of the security plan for Diablo.
5 Now, the intervenors have made certain specific 6 attacks upon that plan.
The appeal board members when ther 7 examined the plan saw two other potential problems.
They 8 weren't sure whether they were problems or not but on the 9 face of things they appeared to be potential problems.
10 Now, as the sua sponte authority is interpreted by 11 the staff at least the appeal board in asking the staff to 12 deal with those two specific issues not raised by a party 13 was exercising this authority.
14 It follows from that that if the authority had not 15 existed the appeal board in making this overall assessment 16 of the adequacy of the plan could not have inquired into 17 those two matters and it would have had to go ahead and pass 18 judgment on the plan simply on the basis of those particular 19 complaints or concerns that had been raised by intervenors.
20 Now from my perhaps naivo perspective that makes utterly no 21 sense at all.
22 Now, the suggestion has been made that an 23 alternative to having the appeal board do it is to refer the l
l 24 matter to the staff.
For the reasons that I have indicated 25 in my paper, I do not think that that is a viable ALCERSCN AEPoRTING CCMPANY,INC,
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1 alternative, particularly in circumstances where there is 2 reason to believe that the staff has already passed its l
3 judgment on it once and has come to the conclusion that l
l 4
there is no problem in that area and it is scarcely likely 5 or highly probable that they are going to take another hard 6 look at it or certainly there is no reason why the public 7 would be confident that another hard look is being taken at 8
Lt.
9 The other suggestion was that it be left to the to Commission. You know, that the appeal board instead of going 11 into itself refer it to the Commission.
I don't have any 12 problem with that if it is again really essentially in the 13 cuS, ext of the appeal board saying to the Commission okay we 14 have seen this problem and we would like to go forward with 15 this and, Commission, you tell us whether you want us to do 16 that or not.
17 So f or those basic reasons which again are 18 developed at some greater length in my memorandum to 19 Commissioner Ahearne of April 20, I would recommend the 20 retention of the authority, subject to any conditions that l
21 the Commission might wish to impose upon the exercise of 22 that authority to assure that it isn ' t abused if th e 23 Commission, unlike myself, reaches the conclusion that chere 24 has either been abuse in the past or that there is a real 25 potential for abuse.
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COMMISSIONER BRADFORD:
I don't have a problem 2 with the Commission review of the sua sponte proposals, 3 especially because my conception of the hearing process is 4 that, in the first instance, it exists to resolve matters in 5 controversy among the parties.
Therefore when it has this 6 extra twist to it, I don't mind having the Commission take a 7 look.
i 8
I do think though that when a matter seems to th.i 9 Board to be sufficiently important to be worth reviewing 10 that there ought to be at least some presumption in favor of 11 its in fact being reviewed.
What I have in mind is that I 12 would not want a situation in which the Board wanted to take 13 up an issue and it was simply referred to us and then on 14 votes of two to two or other even numbers the board was not 15 permitted to review it.
16 I think of the posture in which it should come up 17 as bel.1g one in which in effect the board has said we would 18 take review of this matter under our sua sponte powers and 19 it would take an affirmative Commission vote to reject that.
20 CHAIRMAN HENDRIE:
You could also deal with the 21 question of timeliness.
If you wanted to set it up so that 22 it required in fact a majority action by the Commission to 23 stop it and prevent the exercise you could set it up with 24 some reasonable time.
You know, the rule would say if a 25 majority of the Commission has not advised the boards ALDERSoN REPORTING CCMPANY. INC,
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otherwise within 14 days, or whatever, why they go ahead and 2 do as they wish.
3 COMMISSIONER GILINSKY Why not simply have the 4 boards notify us when they intend to take up issues on their 5 own if they are not going to do that instantly.
6 COMMISSIONER AHEARNE:
What would you have us do 7 after the notification?
8 COMMISSIONER GILINSKY:
If you want to tell then 9 not to do it, we just tell them not to do it.
10 CHAIRMAN HENDRIE4 That would be just the same 11 - configuration because the boards would then go ahead and 12 take it up after some brief time allow the-Commission to 13 advise then otherwise if a majority preferred.
14 Tony, what are your comments on this subject?
15 MR. COTTER:
I have two principal comments.
16 First in the logic of the system the boar'ds are 17 delegated the authority of the Commissioners to conduct 18 reviews of these license applications.
I do not think it 19 logical within that system to remove some portions of the 20 Commission's authority.
By analogy, for example, I do not l
l 21 think that the Commission would tie its own hands in those 22 license applications which it reviews and decline to inquire 23 inte something which occurred to them which may not have 24 been highlighted by the staff.
So the logic of it does not 25 sake sense to me, l
l ACERSCN REPCRTING CCMPANY,INC, i
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Secondly, I do not think from the preliminary data 2
that I have been able to assemble and that assembled by the 3 Office of the Executive Legal Director that there is in fact any sua sponte problem.
The authority has been in existence 4
5 since 1975.
6 In our examination of the situation in those cases 7 which went to decision we found I believe only six cut of 20 8 proceedings where sua sponte questions were raised.
Then of 9 those six half of them resulted in some condition on the 10 license.
11 COMMISSIONER AHEARNE:
NER has a slight 12 disagreement with you in that interpretation.
13 MR. COTTER:
Secondly, if I understand the 14 Executive Legal Directo r's data, it indicates that staff 15 time devoted to sua sponte questions amounts to something 16 less than two percent and possibly one percent of total 17 staff time.
l 18 If I understand your data, you found only,14 19 proceedings in the last six years in which sua sponte time 20 was required of the staff and I believe there has been 21 somewhere between 45 and 60 proceedings during that period l
22 of time.
23 Taking the proceedings in which there were sua 24 sponte questions and staff time was devoted to them, and 25 without goinc into the question of the figures themselves, I l
ALCERSCN AEPCATING COMPANY, ;NC,
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find that only six percent of that staff time was devoted to 2 sua sponte questions and if you elimiate the North Anna 3 proceeding, it was only three percent.
It seems to me that 4 that does not point to a problem with sua sponte.
5 CHAIRMAN HENDSIE Howard, why don't I ask for 6 your comments.
7 MR. SHAPAR:
I think the sua sponte authority 8 ought to be removed and I will explain why.
I think there 9 are two basic premises that everyone can subscribe to.
10 No.
1, the boards ought to resolve matters that 11 have been put in controversy by the parties.
i 12 No.
2, an issue that is identified by the Board 13 ought not to be ignored.
14 Now, I don't think it follows as a matter of 15 inelectable logic that because the board identifies 16 something that has been missed by the applicant, missed by 17 the ACHS and missed by the staff that it necessarily follows 18 that because the board has identified an issue that 19 everybody else missed that the board has to determine it in 20 adjudicatory context.
21 COMMISSIONER GILINSKY:
Are you talking about CP's 22 as well as OL's?
23 MR. SHAPAR:
No.
I am talking only about OL's, 24 because there is no hearing at all in an CL unless somebody 25 raises an issue.
So if no one raises an issue at all the AL::ERSCN REPCRUNG COMP ANY. ;NC,
12 1
boards have nothing to do with the process.
The way the 2 present system works the only matters that are supposed to 3 be decided at an OL proceeding are the matters that parties 4 raise, except where the board raises another issue sua 5 sponte.
That gets me to the progression I was going through.
e No one is ar uing, as far as I know, and it would w
7 only be a troglodyte that would argue it, that because a 8 board raises an issue that the staff, the a pplicant and the 9 ACES missed that it ought to be ignored.
10 The question is after it has besn identified by a 11 board, whether it is the appeal board or the hearing board, 12 whether it inelectably follows that that issue that 13 supposedly everybody else missed and the board picked up has 14 to be resolved in an adjudicatory context.
I think the 15 logic is clearly that it does not.
16 It ought to be referred to the Commission and the 17 Commission has several options.
18 The first option is to decide it has to be decided 19 in an adjudicatory context.
20 Another option is the Commission can refer it to 21 the staff.
22 Another option is the Commission, if it is a l
l 23 technical issue, it can refer it to the ACRS.
l 24 Or, No.
4, the Commission can decide it itself 25 because you have ;ot to remember the boards are living in ACERSCN PEPoATING COMPANY. INC,
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somewhat of an ivory tower.
The only matters that they 2 decide are matters that are raised in the hearings, whereas 3 the Commission has the full sweep of policy and law and 4 everything else before it unlike the boards.
5 I see no reason why the Commission shouldn't have 6 that option.
I don't see any reason why issues that are 7 raised by the boards ought to be ignored, but they ought to 8 be referred to the Commission and the Commission should 9 decide whether or not it inelectably follows that the only 10 way of resolving an issue which a board raises is in an 11 adjudicatory context.
12 Why can't the Commission refer it to the ACES, 13 depending on what the issue is?
Why can't the Commission 14 decide it itself ?
Why can't the Commission, if it wants to, 15 refer it back to the Boards?
But why does every issue 16 predeterminably have to be assigned back to the boards to be 17 resolved by the boards in an adjudicatory context?
Only 18 because the board has identified it.
That is my position.
19 MB. C3TTE3s Can I respond to that?
It seems to 20 me that the maximum efficiency dictates that it should be 21 resolved by the board if the board has identified the issue 22 because at that point the application in question has gone 23 through anywhere from a five to ten-year process.
24 The hearing is where all of that has come into 25 focus.
To pull it then out of that and set it aside and say ALOERSoN REPCRTING CCMP ANY, INC.
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that this one we will treat separately now that we have 2 progressed this far it seems to me not to be too efficient.
3 The second concern, one thar occurs to me of that 4 procedure, is that, for example, and I don' t want to into 5 specific issues but I guess I have to to be illustrative, 6 but in the Zion proceeding the Zion board took as a sua 7 sponte issue the question of leakage in one of the systems.
8 It was not a contention and it was raised in connection with 9 a limited appearance statement.
10 I would take the position that if that board were 11 to have said at the point that it was raised, and it was a 12 matter of great concern in the limited appearance situation, 13 but if that board had said we will proceed with the 14 licensing process but we will refer that one back to the 15 staff or to anybody else, that it would seriously undercut 16 the public confidence in what the board was doing in 17 conducting its hearing.
18 COMMISSIONER GILINSKYa Howard, I wonder if we 19 follow your suggestion whether we wouldn't then be flooded 20 with a tremendous number of issues because doing it your way 21 the board in effect takes no responsibility for the issue 22 other than to just shipping it up here and if the Commission 23 vants to look into it it will look into it.
24 This way if we have the board say it intends to 25 take up an issue, well, it is taking a certain amount of ALOERSoN AEPoRTING COMPANY,!NC.
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responsibility.
It is willing to take u; the time and take 2 the heat for taking the issue up.
3 HR. SHAPAR:
I don't think so.
I think it depends 4 on what standard the Commission wishes to impose.
For 5 example, one standard used to be this authority will be used 6 sparingly and only in exceptional circumstances.
The 7 present standard is that it can be raised with respect to 8 any serious issue.
9 Now, whatever standard you want to peg it at I to think is fine.
I think this is a Commission decision 11 obviously.
If you say the standard is any serious issue or any other sta'dard you want to impose, I would expect the 12 n
13 boards to abide by it.
I 14 I don 't think that the fact thet you are saying 15 that the board if it identifies an issue no longer can go 16 ahead without any Commission g 2idance and decide it only in 17 an adjudicatory context.
It means that either or more less 18 issues will be raised by the boards.
I think the standards l
19 should guide it as a matter of logic and also as a matter of 20 common sense.
l 21 COMMISSICNER GILINSKY:
i am sure we are talking 22 about the same thing.
23 MR. SHAPAR:
I think so.
My feeling is no, no 24 more issues will be raised.
i l
25 COMMISSIONER GILINSKY:
But it seems to me that a 1
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lot more issues will be sent up here unless we sent them a 2 note and say stop sending us issues.
3 (Laughter.)
4 MR. SHAPARa Don't you think the standard would 5 govern that?
Is it still going to be a serious issue?
Is 6 it going to be sparingly?
Is it going to be exceptional 7 circumstanres?
8 COMMISSIONER GILINSKY I would think the 9 threshold f or sending an issue up here and not taking it up, 10 you know, unless the Commission told the board to take it 11 up, would be a lot lover.
i 12 MR. SHAPAR:
I really think you can control the 13 size of the aperature.
14 COMMISSIONER 3RADFORD:
Well, I would have said 15 that the threshold would stay the same.
That is obviously 16 the rule stays the same unless we put in a different 17 standard.
I 18 When we adopted this rule, incidentally, even 19 though we took the word " sparingly" out, it was with the 20 explicit understanding that the practice would not change 21 because the boards all informed us that basically they were l
22 taking up serious issues an yway.
23 5R. SHAPARs They were saying the effect of the 24 rule had been ignored as it had been previously written.
COMMISSIONER BRADFORD:
Well, wha tever.
They may 25 l
l l
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have felt that the word " sparingly" just meant that as long 2 as each board only took up one or two issues.
I don 't know 3
what was behind it, but I remember the tribute to the Under-4 Secretary of State for Management that he was very insistent 5
that we say that we were not changing the practice and in 6 fact the Federal Register notice says just that.
7 ER. SHAPAR:
I think that is an important poin',
8 but doesn't that really get you to the basic issue that 9 because the board identifies an issue which no party has 10 raised why does it follow as a matter of either logic or 11 good administrative practice or anything else as long as no 12 party has raised that issue and remembering tha t th ere would 13 be no hearing at all unless a party had raised an issue, why I
14 does it follow that because a board has raised an issue th a t 15 it must be resolved in a legal adjudicatory context?
16 COMMISSIONER AHEARNE:
Because everybody is there.
17 MR SHAPAR Some issues may be truly legal.
Some 18 issues may be highly technical in content.
Some issues l
19 really need a factual support one way or the other.
You get 20 a complete gradation from purely legal to a heavily 21 overloaded factual admixture.
l 22 Why does it follow that because the board raised 23 it that you have to have it resolved in an adjudicatory 24 context?
Why shouldn't the Commission have the flexibility 25 to say, yes, it is best to have the board resolve this?
(
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COMMISSIONER GILINSKY:
Well, it only has the 2 flexibility of telling the board not to do it.
3
- 13. SHAPAR:
Oh, but I don't think that is a 4 realistic answer.
I think if you leave the rules the way 5
they are and you leave them in place what will happen is 6 exactly what has happened.
The only way th ey will get 7 resolved is in an adjudicatory context.
8 MR. ROSENTHAL:
Howard's position is that it need 9 not be resolved in an adjudicatory context.
Why must it be 10 is the question he poses to you.
I think that a better 11 question is why not?
I mean, even if I agreed with him that 12 there is no total imperative that these issues be considered 13 by boards rather than thrown at the feet of the Commission 14 or at the f eet of the staff, the question still remains what 15 is wrong wi th the present system.
16 You can either say as to that again it has been 17 promiscuously employed and there are no controls that can be 18 imposed upon that kind of promiscuous employment, or you can 19 say that it has turned out pragnatically that the board has 20 been inquiring into issues that would have better been l
21 looked at in a nonadjudicatory context.
I haven't heard any l
l 22 of that.
l l
23 All I hear is this argument based upon alleged 24 logic that after all there would be no hearing if there were 25 not contentions.
So if there are contentions it must follov ALOERSON REPCRTING OOMPANY,INC,
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that the adjudicatory proceeding should be confined to those 2 con tentions.
That is undoubtedly on the face of it a 3 logical position, but it doesn't seem to me that that ought 4,to carry today.
5 It seems to me we ought to be looking at whether 6 or not what the boards have been doing up this point has 7 created problems, th t.t this has not been a worthwhile 8 expenditure of time and it is not a worthwhile way of 9 resolving these problems.
If so, change it.
10 3R. SHAPAR:
I think that is an excellent point.
11 I think that we ought to inquire at this point f rom Harold 12 Denton, since these presumably are techincal issues we are 13 dealing with, what he thinks the contribution of the boards 14 have been in terms of the sua sponte issues that have been 15 raised thus far.
16 COMMISSIONER BRADFORD:
I didn't bring a witness.
17 (Laughter.)
18 MR. SHAPAR But I did.
19 (Laughter.)
20 CHAIRMAN HENDRIEs Harold, do you think you can 21 make a remark without prejudicing the staff 's position in 22 cases?
23 (Laughter.)
l 24 MR. DENTON:
Well, let me come at it obliquely.
25 The case has supposedly been reviewed by the staff and their ALOERSON REPORTING COMPANY. INC,
20 1
first goal is to do a complete sort of sua sponte review of 2 the application against the regulations and we find a lot of 3
things and that is why it takes so long to get the review 4 done.
5 If we had two more members from appeal board staff 6 sitting in on the case review we may ---
i 7
CHAIRMAN HENDRIE:
--- find a few more.
Who knows.
8 NR. DENTON:
Recognizing that it needs another i
9 review we have got the ACSS.
So the ACES is what I l
l 10 characterize as our free-formed sua sponte review of the 11 application also.
l 12 I wouldn 't expect th e hoards to have turned up a l
13 lot over the past years through a sua sponte review and I 14 think that is what the record demonstrates to me.
15 I have looked at the cases that we ha ve identified 16 and that are described here and I think the contribution of 17 saf ety and environmental protection has been insignificant.
l l
18 At the same time I think the impact on the resources of the 19 staff in addressing those issues is largely insignificant 20 also.
21 So I am not sure the issue can really be decided 22 by looking back.
If you had a board member who had a pet 23 hobby horse he wanted to ride in proceeding, then I might 24 have a different view of maybe the contribution or the 25 impact.
I don't think the contribution has been very bic l
ACERSCN REPORTING COMPANY,INC.
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and I don't think the impact has been very big.
2 I guess I am bothered by the logic that says if we 3 had a hearing on one issue that that same hearing ought to 4
then bring up completely unrelated issues somehov.
That 5 doesn't seem the way.we ought to structure the process.
6 MR. COTTER:
It doesn 't sound like there is a 7
problem here to me.
8 NR. SHAPAR It sound like there is one to me.
9 COMMISSIONER BRADFORDa You all are slowly talking 10 se out of the proposition I began with.
If in order to have 11 it go up to the Commission I have go accept the notion that 12 the process has been extensively abused or that adjudicatory 13 formats are necessarily the wrong place for resolving these 14 sorts of issues, then I think I would come out much more 15 reluctant.
l 16 I am prepared to have the Commission, a s I sa y,
17 take a look at these because for one thing the adjudica tory
~
18 context looks a little different when there is no party 19 sponsoring the proposition as a contention.
You have the 20 board the pursuing it and in effect assigning tasks to the 21 staff and the staff reports back and other parties may 22-cross-examine or say not.
23 It is a slightly different adjudicatory forma:
24 than the one one thinks of in the context of normal 25 contentions and I don't mind taking a look at it at the 1
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22 1
Coaxission level and deciding whether that is the way we 2 really want to go a t it.
I really don't start with the 3 premise that the present system hart worked or has somehov 4 been abused by the boards.
5 CHAIRMAN HENDRIE:
Howard, you were consenting 6 that your remarks were aimed at operating license cases.
7 Does that suggest that you would define things differently 8 if it were construction permit cases?
9 MB. SHAPAS:
No.
I was going on the theory that 10 smaller bites are easier to swallow.
11 The construction pernit phase is somewhat 12 different.
There you have a hearing whether or not anybody 13 requests one.
Not only tha t you have got several other 14 complications.
For example, if there is no contest at all 15 then there still has to be a hearing.
16 The basic issue is whether or not the eyplicant's 17 evidence is sufficient and the staff's review has been 18 adequate to support the issuance of the license and tha t is 19 all the board has to decide.
l 20 Whereas, if it is contested at the CP stage, then l
21 the board has to nake the final findings on all the final 22 issues in the case.
So you have got really a complex l
23 situation which ! think the Commission should address but l
24 not at this time.
25 COMM!SS!ONER AHEARNE:
Did you mean to exclude i
l f
l l
ACERSCN F.EPCRENG OOMPANY,INC,
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amendment proceedings from either of those two hearings?
2 ER. SHAPARs No.
I think really the amendment 3 thing has not been a problem because the scope of an 4 r;endment proceeding has been the amendment itself and you 5 are not supposed to get into other issues.
I know there 6 have been times when perhaps that theory ha s not been 7 followed in practice.
I must say in all honesty I don't 8 think that the amendments problem has been a really 9 significant problem.
In theory the scope of the amendment 10 hea ring is supposed to be what the amendment itself calls 11 for.
There have been problems I know.
12 My suggestion would be that the real issue in its 13 most dramatic highlight is at the OL proceeding.
- Besides, 14 ve are dealing with the 11 impacted cases.
This is the 15 problem that is facing the Commission now.
What the 16 Commission is struggling to do is handle that kind of a 17 situation which is an OL problem.
18 CHAIRMAN HENDRIE4 If there was inclination here 19 to put different language as regards to boards' sua sponte 20 powers into the regula tions of the Commission, why you would 21 have to decide whether you were talking about this as a 22 general proposition or limiting the change to OL proceedings 23 or something like that.
That is, I think you would make it 24 a general proposition.
25 You may have to change your existing rules ALCERSoN AEPCRTING COMP ANY. INC.
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20 1
governing construction permit proceedings if you did tha t.
2 As I pointed out at page 2 of my memorandum, under the 3 existing rules, and I have reference specifically to Section 4 2.10u, in a construction permit proceeding the board has 5 certain independent re spo nsibili tie s.
Whether the 6 proc 9eding is contested or not, for example, it has to
~
7 dote::mine compliance with provisions in NEP A as well as to 8 strike an ultimate NEPA balance.
9 Now, you cannot put that kind of burden on the 10 board or put other burdens on the board in terms of making 11 some specific findings without giving them the right to make 12 whatever inquiry that needs to be made in their judgment in 13 order to make those findings.
14 That is the difference between a CP and an OL i
15 where the board isn't called upon to make specific 16 findings.
All it is required to do is decide the matters in 17 confidence.
l l
18 MR. SHAPAR:
It is much more complicated.
l 19 MR. ROSENTHAL:
It you wanted to broaden it to l
20 cover cps you would have to do something about your existing 21 rules.
I MR. SHAPAR:
I don't think any of the material you 23 have received up to now gives you an adequate data base for 24 the signing of the CP problem right now.
It is much more 25 complicated.,
ALCERSCN REPORTING OCMP ANY,INC,
25 1
MR. BICKWIT Mr. Chairman, on this point the sua 2 sponte rule by its terms relates only to OLs.
3 HAIBMAN HENDRII:
Oh, it does?
I hadn't realized 4 that.
5 HR. SHAPAR:
Yes. That is only for this now 6 merging at this time, Mr. Chairman.
7 CHAIRHAN HENDRIE:
What would be the effect if the 8 language went back to the '75 phraseology?
9 MR. SHAPAR:
What the Commission said when it to changed it was as Peter Bradf ord a s said ---
11 CHAIRMAN HENDRIE:
I want to hear from the 12 practitioners.
13 (Laughter.)
14 MR. SHAPAR:
I am a practitioner.
15 (Laugher.)
16 MR. ROSENTHAL:
You are a practitioner.
You have 17 never been in a proceeding yet.
18 (Laughter.)
19 MR. SHAPAR:
I will get you for that.
20 CHAIRMAN HENDRIE:
Howard, if it turns out that my 21 adjudicatory experience, you know, in the courtroom is 22 actually mere than yours ---
23 MR. SHAPAR:
I gave up after trying to prepare you 24 as a witness, Mr. Chairman.
25 (Laughter.)
ALCERSON REPCRTING COMPANY, :NC,
26 1
CHAIRHAN HENDRIEs I ask this because I have 2 answered queries from assorted committees of the Congress.
3 HR. ROSENTHAL:
As has been previously noted tod a y 4 when the Consission struck the language " exceptional 5 circumstances" and " sparingly," it said tha t in doing so it 6 was simply conforming to then existing practice.
Howard 7 suggested that that meant that the boards had been acting 8 lawlessly prior to the amendment.
9 CHAIRMAN HENDRIE It seems reasonable to me.
10 MR. ROSENTHAL Well, my perspective I really 11 don 't care whether the language is restored to its prior 12 form or not, No.
1.
13 No. 2, in candor, I would have to tell you I don't 14 think it would make a bit of difference in the 15 determinations by field boards as to whether it did or did 16 not raise an issue on its eun initiative.
17 In saying that I don't mean to imply that we would 18 disregard those qualifications.
I would sa y simply that I 19 think we have observed those qualifications across the board 20 anyway.
I am contrary again to the impression that migh t be 21 left that ap@eals boards have been running amuck in this 22 area and seiring upon every opportunity to expend Harold 23 Denton's resources.
24 Ihe fact of the matter is, as the record reflects, 25 ve have exercised this authority on a very small number of ALDERSCN REPCRTING COMP ANY, INC,
27 1
occasions and I would have been happy to defend our exercise 2 on those occasions under either the language of the rule 3
prior to its 1979 amendment or to the language of the rule 4
now.
5 MR. SHAPAR:
Well, you have not run amuck, but you 6 haven't contributed anything significant to safety either.
7 MR. ROSENTHAL:
Well, that is your judgment.
8 COMMIS"IONER AHEARNE:
Allen,. could I ask you, do 9 you see there being a difference between the previous 10 language and the current language?
11 MR. ROSENTHAL4 Well, I would have to say, 12 Commissioner Ahearne, again in candor, that exceptional 13 circumstances and sparingly is language tha t doesn 't ha"e 14 muen content for me.
They really don't.
I mean it is nice 15 verbiage.
16 COMMISSIONER AHEARNE:
With no practical effect.
17 MR. ROSENTHAL4 Right.
It is sort of like good 18 cause and what is good cause to one person may be dreadful 19 cause to another.
20 I don't really think that adds, to be quite frank 21 about it, anything at all.
22 CHAIRMAN HENDRIE:
Tony, wha t do you think would 23 happen at the board level if one vent back to the '75 24 language?
25 XR. COTTER:
I would concur in what Allen said.
AL::ERSoN AEPCRTING CCMPANY, !NC,
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28 1
These hearings are long enough and the boards aren't looking 2 for trouble.
The boards feel very strongly their 3 responsibilities to determine that a given plan or activity 4 is safe and that is what they are doing.
5 A s the record reflects they have raised questions 6 in less than 20 parcent of all the cases.
Some of those 7 have been brief and some of them have been more substantial 8 but all of them have been because they felt they were 9 serious.
10 CHAIRMAN HENDRIE:
John.
11 COMMISSIONER AHEARNE:
I have probably written a 12 lot on this subject.
My concern for the sua sponte role has 13 little to do with the issues that are bel.ng addressed by how 14 such Commission resources were expended on it nor how I
15 significant were the result of the examination.
It has much l
16 more to do with what is the role of the hearing process and j
i 17 what is th e purpose of the hearing process.
i 18 I an not prepared to take a position today because 19 Tony is still preparing a paper addressing rha t issue and I 20 said I would wait.
But it still appears to me that if the 21 purpose of the hearing process, at least the operating 22 license or those issues, is to address these concerns that 23 the parties have raised, then I don't see that the sua 24 sponte rule fits into that.
25 I do believe that if anyone, whether it is the l
AL:ERSCN REPCRTING CCMPANY, INC,
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staff or the board member or the Commissioner, sees a 2 serious problem, then the ?!RC in some forn has to address 3
that problem but it doesn't fit in my concept of what the 4 hearing process is for as I am trying to think through what 5 is the process of a hearing.
6 COMMISSIONEE 3RADFORD:
I would not be willing to 7 go back to the old language.
I worked quite hard to get rid 8 of this.
9 CHAIRMAN HINDRIE:
I seem to recall it.
10 (laughter.)
11 COMMISSIONER BR AD FORD:
But furthermore, if in 12 fact we institute a process whereby that language simply 13 becomes the standard which the board then meets in order to 14 refer something up to the Commission, then after all we find 15 ourselves applying the standard in deciding whether the 16 board should in fact be the ones who pursue it.
17 I certainly wouldn't want the boards to f eel that 18 they should sparingly and in extreme circumstances only rfer 19 things up to us.
20 CHAIRMAN HENDRIE:
Your point.
21 Well, let me see.
We are about a half an hour or 22 40 minutes into the subject.
Would it be fair to 23 characterire where you are, Pete r, b y sa ying tha t you might 24 not be jubilant and enthusiastic, but you at lea st would not 25 be horrified in OL proceedings where the boards want to ALOEASCN AEPCATING CCMP ANY. lNC,
t 30 1
raise an issue on their own that it come up.
2 I guess the configuration you would want is one in 3 which it automatically goes forward with the boards unless 4 the Commission majority takes an action to otherwise direct 5 where the Commission in priciple could send it to the staff 6 and tell the boards yes, do it or just let the time run out 7 and let them do it.
They could send it to the ACRS or 8 wherever else Howard might have had in mind.
9 (Laughter.)
10 COMMISSIONER BR ADFORD:
Let ne just ask one 11 question, Joe, about that.
When the boards decide to take 12 an issue up now do they write anything at that point?
Is 13 there any sort of memorandum or opinion tha t issues?
14 MR. CCTTEE: It becomes a board question.
15 CHAIRMAN HENDRIE The boa rd just frames a 16 question.
l 17 MR. ROSENTHAL:
When the appeal board does it it 18 is in a written memorandum of about 30 pages.
19 (Laughter.)
20 CHAIRMAN HENDRIE:
A critical opinion.
21 (Laughter.)
l l
22 YR. ROSENTHAL:
Some people need more guidance l
l 23 than others.
l 24 (Lauchter.)
25 COMMISSIONER 2RACFCED:
The point is that what we A1.0ERSoN REPCRTING COMP ANY, lNC,
31 1
would need obviously is something more or less equivalent to 2 what the board would propose to issue just by way of an 3 explanation of why the board thought it was important.
4 CHAIRMAN HENDRIEs You already do that but the 5 boa rd s do no t.
6 3R. ROSENTHALs For the appetl boards this would 7 be no problem because we would write up the same kind of 8 discussion that we do now.
The bottom line would simply be 9 to the Commission.
10 COMMISSIONER GILINSKY:
What is the next step 11 af ter you write such a memorandum?
12 MR. ROSENTHAL:
Well, usually we call upon the 13 parties to do something with respect to this issue.
We 14 picked this issue up in connection with our review of the 15 initial decision in the North Anna case, for example.
We 16 raised turbine missiles on our own initiative and it was in 17 the course of a decision which was dealing with the other 18 aspects of the licensing boa rd decision.
19 As I recall it, this memorandum and a letter 20 called upon the staff to provide us I think by affidavit 21 with certain infornation addressed to that turbine missile 22 concern.
We indicated in a letter that following receipt of l
23 the affidavit or the information we would then determine 1
l 24 what, if anything, we were going to do further with the l
25 question.
That is the way it all got started.
ALOERSON REPCRTING CCMP ANY,INC,
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CHAIRMAN HENDRIE:
It is still running, isn't it?
2 MR. ROSENTHA L:
Oh, full steam.
3 (Laughter.)
4 MR. COTTERa If it would be of help let me give 5 one more illustration.
In the Farley case, ubich is part of 6 the statistics offered by ELD, there was one intervenor with 7 three contentions.
I think the notice of hearing was issued 8 in May of '74 and the intervenor dropped two of the 9 contentions and the third one was denied in March of
'76.
10 At the time the third one was denied the Board 11 then proposed a question in the same order denying the 12 admission of that contention and thereby eliminating the one 13 intervenor from the proceeding.
The board questioned the 14 steam generator tube integrity.
15 Sometime within the next 90 days the staff filed 16 an affidavit which satisfied the board and the board then 17 dismissed the proceeding.
18 MR. SHAPAR Let me say if the Commission is 19 proceeding along the track it is proceeding, the Commission 20 may wa n t to hear from the parties before it makes a 21 decision.
For example, suppose the board raises an issue 22 and the Commission turns to the various parties.
The staff 23 mi;ht say, well, this is something we missed.
We really 24 should have picked it up.
We didn't and the board did and 25 ve see no reason why it shouldn't go to an adjudicatory 1
l ALDERSCN REPCRTING COMPANY,!NC.
l
O 33 1
hearing.
2 On the other hand, the staff might say or another 3 party might say, well, we discussed this with the Commission 4 last week and we decided that we are going into a notice or 5 proposed rulemaking 6
COMMISSIONER BRADFORD:
The Commission won't 7 remember that.
Last month is different.
to handle the matter generically, 8
MR. SHAPAR:
9 something about which the board has no knowledge whatever.
10 That is why the Commission should decide it.
11 COMMISSIONER BRADFORD:
When the boards are 12 considering taking something up sua sponte, do ther 13 rou tinely request the views of the parties?
14 MR. ROSENTHAL:
As to whether it should be taken 15 up sua sponte?
16 COMMISSIONER BR ADFORD :
Right.
l 17 MR. ROSENTHAL:
No, review boards do not.
Re vie w 1
18 boards are prepared to take'up issues sua sponte without 19 advising the parties in advance.
The only commitments the 20 appeal board makes is it is not going to do anything drastic 21 to anyone without the parties being heard and as far as we l
l 22 are concerned that satisfies any due process requirement.
23 MR. SHAPAR:
The only element is not just due 24 process, it is good policy, too.
l 25 CHAIRMAN HENDRIE:
Vic?
l l
l I
l ALDERSCN REPORTING COMPANY. iNC,
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COMMISSIONER GILINSKY:
Well, I would have the 2 boards let us know when they are going to take up such 3 issues.
We can then do something about it or let them take 4 it up.
Well, it is very much like what Peter is proposing.
5 I just described it a little differently.
6 COMMISSIONER BRADFORD4 Yes.
7 CHAIRMAN HENDRIE:
John?
Or are you not ready 8 pending tha t paper?
9 COMMISSIONER AHEARNE:
I really would prefer to 10 wait until Tony gives me his paper.
11 COMMISSICNER GILINSKY Actually the thing that 12 Peter proposes or I characterize a little differently 13 wouldn't change the situation very much from what it is now, 14 but it would alert the Commission and we would be on a clear 15 notice.
16 CHAIRMAN HENDRIE:
In effect that is right.
17 COMMISSIONER GILINSKY:
There is some 18 psychological effect here.
The board would be notifying the 19 Commission, i
20 COMMISSIONER AHEARNE:
Would you have there be any 21 time lapse?
In other words, would the notice be when the 22 Board is now directing the party in question, say the staff, t
l 23 to do something?
Is that the notice that you uculd have?
24 COMMISSIONER GILINSKY:
I would assume there would i
25 be some decent interval tha t would allow the Commission to l
l
~
1 ALOERSON AEPCRTING COMPANY. lNC,
i i
35 1
stop the action ---
2 CRAIRMAN HENDRIEs A few days anyway.
3 (Laughter.)
4 COMMISSIONER GILINSKYa
--- if it didn't want it 5 to proceed.
But it seems to me as a practical matter there 6 always is.
Nothing happens instantly.
7 MR. COTTER The logic of that really, and I am 8 sorry, but it really escapes.
It is like b reaking out a 9 piece of a hearing and referring it to the Commission.
You 10 wouldn't presumably want the boards to let you know which 11 contentions they ver daitting and which ones they weren't.
12 CHAIRMAN HE3DRIE:
We would ask our counsel to do 13 that for us.
14 COMMISSIONER BRADFORD:
Don't suqqest it.
15 (Laughter.)
16 MR. COTTER:
It is the beginning of a 17 f ragmentation of a relatively unified process.
18 COMMISSIONER GIIINSKY:
It amounts to recogniring 19 that these issues are on a diff erent footing in the 20 operating license area.
21 MR. COTTER:
But it is taking a cespletely 22 philosophically different view of what the Boards are doing 23 by saying that contrary to what we have said in the rule we 24 are really not deligating our authority to you te conduct 25 these proceedings.
We are only going to give you this much ALDERSCN REPCRTING CCMPANY,iNC,
36 1
of the pie this month and naybe next month we will give you 2 that piece back and we vill take another one.
3 CHAIRMAN HENDRIE:
Tony, I just say that the 4 proposition that when a board sits it sits with the full 5 authority and scope of responsibility of the Commission is 6 something that I don't agree with.
I notice a memo attached 7 to Allen's for Mr. Cho which ha s not that kind of language 8 but the suggestion that the board process is and ought to be 9 yet another full review stage, or at least I sense that 10 direction in there and again I don't agree with that.
11 If indeed the boards were sitting with the full 12 scope of responsibility of the Commission, well I guess I 13 would expect you indeed then to conduct a de novo review and 14 examine the staff, the applicant and the pa rties on every 15 issue that they have raised or anybody else has raised or 16 has written down in safety reports or that you can think of 17 and it never would end because the framework in which th e 18 boa rd's have to operate giving everybody his due crack at 19 things, hearing testimony and getting evidence appropriately 20 on the record and examining it and so on, is so muc.* more 21 formal and cumbersome than the kind of give and taken that 22 the staf f goes through in hammer out with an applicant's 23 engineers whether he needs two switches or three in this 24 system on on a plant that you couldn't get through it, not 25 one case.
It would go on forever.
ALCERSON REPCRTING COMPANY, INC,
37 1
So, no, I don't agree that the boards sit there un 2 are in effect the Nuclear Regulatory Commission with all the 3 things that we are supposed to worry about.
4 MR. COTTERa I wasn't advocating th a t position.
5 CHAIRMAN HENDRIE:
But it is clearly a more 6 limited role than the Commission itself has.
7 MR. COTTER:
I don't question that for a minute.
8 CHAIRMAN HENDRIE:
Particularly in these OL cases 9 even with the present language of the sua sponte power the 10 board's function is to decide the matters that are in 11 contention, asterisk, footnote, and if there are some really 12 serious things you find that yo u can ' t le t alone, why okay 13 take those up, too, serious subjects and serious concerns 14 and so on.
It doesn't say now in the sua sponte rule 15 anything about de novo review.
16 So I have to say that I think because the board's 17 role is necessarily limited, particularly at the OL stage, 18 that I am not sure I see a great damage to that role in 19 something along th e lin es o f, you know, Vic's notice that we 20 intend to take up the following question when this l
l 21 proceeding comes up, or in another way,saying we are going 22 to take it up and the rule says, you know, the Commission 23 has got five or ten days or whatever to do anything about i
24 it, or otharvise you are going to take it up.
25 It just doesn't see to me that it does much l
1 ALDERSCN AEPCRTING COMP ANY, INC.
38 1
violence to the process.
2 MR. ROSENTHAL:
Am I correct in assuming, 3 M r. Chairman, that none of this discussion goes to the 4 question of the authority of an appeal board to raise on its 5 own initiative issues that were considered by a licensing 8 board but have not been appealed?
7 COMMISSIONER AHEARNE:
That is correct as far as I 8 am concerned.
9 MR. ROSENTHAL:
Well, I just want to make th st to clear because one could argue in an operating license 11 proceeding that even if the issue was raised before the 12 licensing board ---
13 CHAIRMAN HENDRIE:
If it were settled there.
that if the licensing board's 14 MR. ROSENTHALs 15 resolution of it didn't disturb anybody, what is the appeal 16 board getting into it for.
I just wanted to make clear tha t 17 we are not talking about that at all and that this is simply 18 the matter of an appeal or a licensing board raising an 19 issues which was not in the proceedings by way of contention.
20 CHAIRMAN HENDRIE:
I think that.is quite clear, 21 unless we propose to do something which has not been 22 proposed and which I don't propose which is to tell the i
23 appeals board to stick to filed appeals and nothing else.
24 MR. ROSENTHAL:
I just wanted to make sure that l
l l
25 that was outside the scope of this' inquiry.
l l
l l
r ALCERSCN AEPCRTING COMPANY, NC,
39 1
(Laughter.)
2 CHAIRMAN HENDRIE4 You have successfully protected 3
that ---
4 MR. COTTER 4 And you ox is not being gored.
5 (Laughter.)
6 COMMIPOIONER 3RADFORD It is outside the scope I 7 think because it is not on the table.
Logically I aa not 8 sure that the situation is terribly different, but let's 9 just leave it that it is outside the scope because we have't 10 been think about.
11
- 23. SHAP AR :
Maybe it is an idea whose time has 12 come.
13 (Laughter.)
14 CHAIRMAN HENDRIE4 I agree with you, Peter.
In 15 view of the sorts of tnings that we are locking at here why to it might as well as not have been another item that said and 17 what about the appeals board looking at the whole case a t.
18 the lower level.
I haven't suqqested that because I i
19 con tinue to think there is good value in what in effect is a 20 quality assurance operation that the appeal board carries 21 out.
l l
22 Any any rate, as you say, that is sort of another 23 subject and since it is not on the table and the table is 24 piled full, why l?t us just reassure Allen th a t we are not i
25 going to take it up.
l ALCERSON AEPoRTING CCMPANY,INC,
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I declare this subject discussed for the day 2 because John wouli like to think further and because I find 3 no particular enthusiasm for just going back to 1975 wording.
4 COMMISSIONER AHEARNE:
But there may at least be 5 a coalition to have a notice sent to the Commission.
6 CHAIRMAN HENDRIEs There could very well be.
I am 7 not sure for myself.
I guess I would like to hold my own 8 vote on it for the moment.
I must say that I agree with Vic 9
that with the best intentions in the world to maintain an to absolutely the same standard ---
11 COMMISSIONER BRADFOPD:
Well, think about it on a 12 pilot basis and le t's drop it if you don't like it.
13 CHAIRMAN HENDRIE Well, that is a possibility.
I 14 agree with you, Vic, I think hunan nature will just work in 15 a way so that there will be at least a few more than what 16 would otherwise have been-the case if there were things tha t 17 the board were going to raise on their own and carry out on 18 their own and bear the responsibility for having raised th e m 19 and then for bringing them to a conclusion.
20 COMMISSIONER BRADFORD:
Well, here you go, Victor, 21 you and I are trying to hasten the process and we just can't 22 get a sajority.
23 (Laughter.)
24 CHAIRMAN HENDRIE:
That is right.
I think John 25 and I have successfully defended your assault to bring these ALOERSCN AEPCATING COMPANY, INC,
41 1
radical changes in the process.
2 COM*!SSIONER AHEARNE:
Well, I am probably going 3 to be villing to go with Peter's radical changes.
4 CHA!RMAN HENDRIE:
I see.
5 What about contentions, Len?
That may come more 6 crisply to the issue I think.
7 MR. BICKWII:
I am perfectly happy to leave the 8 subject.
I simply want to poin t out for when you come back 9 to it that in the past you have had some memoranda floating to around here with regard to the unresolved safety issues and 11 how that relates to the sua sponte powers.
It is 12 conceivable that some Commissioners might vant to speak to 13 decisions that have been rendered by the appeal board and 14 the licensing boards on those matters.
15 I will lea ve th a t to Commissioners to raise that 16 if they choose.
17 COMMISSIONER AHEARNE:
0;ie will.
18 MR. BICKWIT:
On contentions we had come f orward 19 with a proposal.
We have had some votes on it.
To my 20 knowledge there have only been two votes on it and both 21 negative.
22 When I know what the proposal is ! vill knov 23 whether I as enthused about that result.
24 (laughter.)
25 ME. BICKWIT:
This was the proposal in SECY ALOERSoN REPORTING COMP ANY, iNC,
42 1
81-111A.
2 COMMISSIONE3 AHEARNE:
Put out for public comment.
3 MR. BICKWIT:
At the last meeting Howard agreed to 4 furnish some data with respect to what kind of contentions 5 have been cropping up in recent cases and the extent to 6 which those might fall under the proposal that was in that 7 SECY paper.
8 We were also asked to comment on the pros and cons 9 of dropping the escape hatch that v'as in our original 10 proposal and we furnished a meme on that subject with the 11 bottom line that we still supported the retention of that 12 escape hatch.
13 At this point I think there is nothing further to 14 be done but to declare yourselves on this or alternative 15 proposals.
16 CHAIBMAN HENDRIE:
Let's recount the votes and if 17 I haven ' t made it clear I guess my inclination would be to l
18 send out for comment the Shapar version which is your raised' 19 contention threshold without the barn door open.
l 20 (Laughter.)
21 COMMISSIONER AHEARNE:
Can I make a couple of 22 comments?
l 23 CHAIRMAN HENDRIE:
Please.
l 24 COMMISSIONE3 AHEARNE:
I notic'ed that in one of 25 the memos that was attached to the original SECY paper, one 1
ALDERSON AEPCRTING OOMPANY !NC.
b3 1
from Allen, he made a point that I think that we ought to 2 keep very much in mind if we go in a direction on this.
And 3 it is particularly important that there be no room for doubt 4 regarding the basis on which the licensing board is to make 5 its determination.
6 I think that I have no problem with going out for 7 comment at the present time, but I think if we were to end 8 up modifying the contentions rule it ought to be very clear 9 on what basis we expect the licensing boards to be making 10 their decision.
11 I would like to publish the rule for comment with 12 two changer.
13 The first, put two alternative versions, one with 14 the escape clause in and one without it in, just to get some 15 sense of where people who would be affected by it would come 16 out.
17 The second, I would like to have a possible 18 alternative included that would pick up a point that Len 19 made in his memo.
On page 5 of his original memo he points 20 out that legally more latitude can be probably afforded to 21 the technical members of the board at the contentions stage 22 of a proceeding.
He pointed out that the draft rule doesn ' t 23 incorporate the suggestion allowing the technical members to 24 exercise a greater degree of technical judgments.
25 I would prefer to have a rule going out for ALOERSCN REPCRTING COMP ANY, INC.
44 1
comment that at least has an alternative that would allow 2 that.
3 MR. BICKWIT.
7 just want to add that I wouldn't 4 advise the Commission to adopt this rule in this form or any 5 o2 the alternatives suggested at this time.
Our suggestion 6 is simply that you go out for comment.
7 In part my reservation stems from the fact that I 8 am still unclear of the extent to which con tentions are 9 being raised which can upon quick analysis be determined to 10 be frivolous or obviously non-starters.
11 The ultimately recommedation coming f rom our 12 office will depend on the answer t'o that question which we 13 don ' t now have.
14 COMMISSIONE3 AHEARNE.
Let me answer that.
I have 15 tried in many places in many ways to continue to make the 16 point.
At least my proposals that I have been trying to 17 prop--a for some time have to do with a concept of what th e 18 hea ring process should be, and it isn't meant to say well, r
19 here was this proelem which clearly is there and there is l
i 20 egregious behavior and therefore.
That is not the purpose.
21 Ihe fundamental purpose is trying to outline at 22 least for one person what the role should be and how the 23 process should run.
So these proposals seem to me to be 24 consistent with that.
25 CHAIRMAN HENDRII:
So you would go out with ALOERSoN REPCATING COMP ANY. ;NC,
US 1
alternatives as adjusted.
2 Peter?
! don't know, do I have a vote, Peter?
3 COMMISSIONER BRADFORD:
Yes.
Ihe process of 4 elimination would tell you whether it is a negative vote.
5
( Laughte r. )
6 CHAIRMAN HENDRIE:
I thought maybe you could fill 7 me in on the shades of meaning.
For some reason I got Vic's 8 and I probably got yours, too.
Oh, yes, I do have yours.
I 9 as sorry.
10 C0$HISSIONER GILINSKYs Three of the four parts.
11 CHAIRMAN HENDRIEs Peter's view is that if he is 12 going to look at threshold contentions, and this is 13 consistent with a view you have had for some time that on 14 many of these issues you would propose to discuss them in 15 the context of an overall review of the licensing process.
16 COMMISSIONER BRADFORD:
It is not unlike your 17 perspective on intervenor funding in 1977.
18 (Laughter.)
19 CHAIRMAN HENDRIE:
I have taken the same view 20 myself on other things.
21 Vic, could you amplify?
22 COMMISSIONER GILINSXY
- Well, let's see, as I 23 remember there were three f our points in tn'e proposal.
24 CHAIRMAN HENDRIE:
Four points and then s loophole.
25 COMMISSIONER GILINSKY:
What I said there was that ALCERSoN AEPC ATING COMPANY,INC,
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46 1
I thought there may be some benefit in requiring that 2 contentions be supported with whatever factual material 3 participants either were relying on or intended to rely on 4 but I wouldn't have the board rule on the merits at that 5 point.
6 First of all, there is a certain amount of 7 discipline involved, which I think is useful, in requiring 8 to lay out the basis on which you are making a contention or 9 intend to aake a contention.
10 CHAIRMAN HENDRIE At least indicate the scutce 11 documents.
12 COMMISSIONER GIIINSKYa 31ght.
I mean it is the 13 same benefit that you get in requiring a graduate student to 14 have a research plan or whatever.
15 The other point, it seemed to me, was it signaled 18 to some extent to other participants what the basis of the 17 contention is or what information the participant intended i
18 to rely on and that may be of some benefit.
f 19 I was persuaded that it was not a good idea to f
20 rule on the merits at that point and to look to the summary l
21 disposition process f ec tha t.
l 22 CHAIRMAN HENDRIE:
Do you want comment on the l
l 23 practicality, ;ros, cons and something else of Vic's?
l 24 MR. BICKWIT:
I think it is helpful as against the r
25 alternative of doing n o thin g.
Obviously I don't think it l
l ALDERSCN REPCRilr*G COMPANY,INC,
47 1
goes far enough to deal with a problem which I have admitted 2 ve can't document to the extent that I would like to 3 document it.
4 COMYISSIONER GILINSKYs Well, it wasn't clear to 5 se that the suggestions were really going to lead to 6 procedural improvement.
I mean the idea of actually ruling 7 on the merits of the contention to that point.
You may just 8 get yourself snarled at that point and the board may end up 9 having to deal on complex questions without having very much 10 information to work with.
11 I don't think that there are a lot of issues on 12 which a board can just, you know, rule from the bench and 13 say, you know, that violates the second law of 14 thermodynamics or whatever.
I just don't think there are 15 very many of those.
to MR. BICKWIT:
I don't know the answer to that 17 question and I have not been able to get the answer to that 18 question.
19 COMMISSIONER GILINSKY:
And I am pu : led by the 20 arguments on how difficult it is to deal wi th what seemed to 21 be trivial issues at the summary disposition stage.
If it 22 is very hard to deal with then they are not that trivial.
23 You know, you can't have it both ways.
24 COMMISSIONER AHEARNE:
Well, it depends upon the 25 criteria that are applied for what must be shcun in order to AL::ERSCN REPCAT NG ' CMP ANY, INC.
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get rid of an issue.
2 COMMISSIONER GILINSKY Welle it seems to be 3 unlikely tha t an issue that takes hundreds of hours of staff 4 time is sosething that someone sitting on the board can just 5 resposibly dismiss offhand.
6 MR.SHAPAR4 Well, it shows that there is no 7 genuine issue of fact and the rule requires affidavits.
You 8 have to get technical people.
9 COMMISSIONER GILINSKY:
So it may involved less 10 time, but if it is hundreds of hours of staff time, it is 11 going to be some not inconsequential fraction of the board's 12 time.
You know, it isn't the kind of thing you can just 13 look at and say this is ridiculous.
You know, it is 14 antigravity or something.
15 HR. SHAPAR:
I think tha t is a good point, but I 16 think one has to understand that it depends on which 17 document you are looking at to answer that question. If you 18 are looking at the first document that came in, let's say by 19 an itervenor, then it may not be as difficult to reach the 20 conclusion that you have just suggested.
21 On the other hand, if we follow our existing l
l 22 practice, and I am not advocating we shouldn't, if that l
23 initial document gets refined, then I aculd fully agree th a t 24 there are going to be very few that are going to be thrown 25 out under the new standard.
l ALCERSCN REPCRT1NG COMPANY. ;NC.
e 49 1
In other words, the first contention that comas in 2 is very often in very rough shape.
The Commission's present 3
practice is to have the intervenor work with the staff to 4
refine that rather rough contention.
5 Now, the first initial rough contention may very 6 voll be easy to throw out depending on what standard you 7 vant to use.
On the other hand, after it reaches the point 8 of negotiation and it is refined the second or third time, 9
then I think I would fully agree with what you said that 10 there are very few of them that will be threwn out.
11 MR. ROSENTHAL:
The advantage, if I understand 12 your correctly, of giving the board the power to throw them 13 out on the merits of the inception is that it gets rid of 14 those people who although they may have a substantial 15 concern are inartful in the manner in which they express 16 their concern.
If they go through the refinement process it 17 would be ismunired from being bounced out summarily.
18 MR. SHAPARs I was only giving factual 19 information.
You are the only one up to now who has l
20 expressed an opinion.
j I
21 (Laughter.)
22 MR. ROSENTHAL:
It is not opinion at all.
I am I
23 asking whethee that is what follovs from what you are saying.
24 COMMISSIONER BRADFORD:
An inference ;erhaps.
l 25 COMMISSIONER AHEARNE:
Or what could fcilow is ALDER $CN REPCRTING COMP ANY. INC.
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50 1
tha t the initial presentation of the question can be 2 dismissed but if given technical assistance that that 3 initial question can then be turned or modified in such a 4
way based upon working with someone who has a lot of 5 knowledge.
6 It reminds me very much of some years ago there 7 was a gentleman who was described as having been able to 8 design a nuclear weapon without any knowledge.
He had knowledge.
ail he had was access to two people to ask 10 questions of.
And all they could give him was basically yes 11 or no ansvers.
The two people happened to be people who 12 were very experienced in designing weapons.
And certainly 13 after asXing a lot of questions he finally ended up with, 14 yes, here is how you can design a nuclear weapon.
15 CHAIRMAN HENDRIE:
You will also find in due time 16 whether the refining process meets all the requirements of 17 the current law, and it if it does not, why I will be 18 passing among you with a hat.
l 19 (Laughter.)
20 There are not the votes here to go out for comment 21 on any version of this thing.
l 22 MR. BICKWIT:
Mr. Chairman?
l 23 CHAIRMAN HENDRIE:
Yes.
I i
l 24 5R. 3ICKWIT:
I think that is correct, but you 25 might want to put to the Commission the proposition of going l
ALCERSCN AEPCRTING COMPANY. INC,
4 51 1
out with alternative versions listing the various 2 alternatives proposed.
3 CHAIRMAN HENDRIE:
Including?
4 COMMISSIONER BR ADFORD4 Including the Gilinski 5 version and your version.
6 CHAIRMAN HENDRIE.
And Vic's.
7 COMMISSIONER AHEARNE:
I would support that.
8 COMMISSIONER GILINSKY:
I as disinclined to do 9 that.
10 COMMISSIONER BR ADFORD:
It wouldn't change my 11 position.
12 MR. BICK'4IT:
As I said, I thought you were 13 correct 14 (Laughtar.)
15 CHAIRMAN HENDRIE:
Before I leave this subject let 16 se inquire about Vic 's thought.
17 COMMISSIONER BRADFORD:
The short insert for the 18 policy s tatement?
19 CHAIRMAN HENDRIE:
No.
I am about to turn to the 20 policy statement.
This is still on contentions.
21 COMMISSIONER 3RADFORD:
Okay.
22 CHAIRMAN HENDRIE:
Vic said he wouldn 't raise the 23 threshold but he would think maybe people raising 24 contentions ought to indicate that 25 COMMISSIONER BRADFOSD:
Che second paragraph.
ALCERSCN REPCRTING COMPANY, INC,
52 1
CHAIRMAN HENDRIE:
Yes.
the sources they 2 intend to rely upon to make the case and so on.
3 MR. 3ICKWIT.
May I just ask on that, wha t ha ppens 4 if the intervenor doesn't set for the facts on which he 5 bases his contention and the sources or documents which he 6 used.
7 COMMISSIONER BRADFORD:
Then we a re back in the 8 policy statement and he has missed the hearing obligation 9 and the board has to decide wha t to do with it.
10 MR. BICKWIT:
Is that your concept?
11 COMMISSIONER BRADFORD:
Th e. t would be my concept.
12 COMMISSIONER GILINSKY:
It seems reasonable.
I 13 hadn't thought about it to tell you the truth.
14 CHAIRMAN HENDRIE:
I thought we would throw him 15 out.
16 (Laughter.)
17 COMMISSIONER BRADF02D:
Then what flows from that 18 would mean that this then would have to be, and it probably 19 would have to be anyway, namely, a change in the rules.
I 20 COMMISSICNER GILINSKY:
I guess I thought it would 21 weaken his position.
22 MR. SHAPAR.
You would need a change in the rule.
23 COMMISSIONER GILINSKY:
Yes.
24 MR. BICXWIT:
Would you want to provide 25 specifically that it would not be the basis for denying a l
ALOERSCN REPCRTING COMP ANY, INC,
53 1
con te ntion ?
I think that is your concept.
2 COMMISSIONER GILINSKY:
I haven't carried it 3 through to that point.
It seems to me if you just 4 absolutely refuse to state any basis on which you have made 5 this conten tion then you wouldn' t be conforming to the 6 requirements of the Commission.
7 MR. SHAPAR:
The present rule does require that he 8 state a basis and is grounds to throw him out.
9 COMMISSIONER GILINSKY:
Right.
So this would be, 10 too, and this puts a more specific requirement on him.
11 MR. ROSENTHAL:
It is just tightening up the basis 12 for the requirement.
'A e ha ve throvn out intervenors for 13 f ailure to meet the basis requirement as presen tly 14 interpreted.
,15 MR. COTTER:
My preliminary examination indicates 16 that we throw out 50 percent of the contentions when we 17 first look at them.
18 COMMISSIGNER AHEARNE:
- f. lot of that is because 19 they are cnallenges to the rule.
20 MR. COTTER:
I haven't worked citt the 21 percentages.
That is one major reason.
The second major 22 reason is because they can be consolida ted.
A third one is 23 that many of them are dropped.
24 COMMISSIONER GILINSKY:
I can't find your 25 proposal, Len, but I thought I was picking up three out four ALOERSCN AEPCATING CCMP ANY,INC,
,1 Su 1 ' parts of the proposal.
2 M3. BICK'4IT:
That is right.
One of the reasons 3 for the first th re e is to judge whether a genuine issue of 4 saterial fact has been put forward.
5 As I understand what you are trying to do, it is 6 not to throw out the contention on the basis of ' the f ailure 7 to do this right.
I don't know.
8 CCEMISSIONES GILINSKY:
I don't want the thing 9 dealt with on the me rits a t tha t point, but if you don't to meet your obligations in laying out what the Commission 11 expects you to lay out then that would be grounds for being 12 thrown out.
13 MR. BICK'JIT:
I see.
So you must set forth facts 14 and documents ---
15 COMMISSIONER GILINSKY:
That you have or intend to 16 obtain.
and documents and sources which 17 MR. BICK 'JIT:
18 you have or you intend to o btain.
It is a different 19 proposal from what I thought it was and I think it moves l
20 things along not as far as I would move them, but I think it l
l 21 has more significance that I thought it had.
22 ME. SHAFAR:
I think it could be a big help.
j j
23 CHAIEMAN HINDEIE:
Compared to the present basis?
l l
24 ME. SHAPAR:
Yes, co m pa red to the presen t basis.
l 25 MR. ROSENTHAL:
The difference being what?
l AL::ERSoN AEDCATING COMPANY,,NC,
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MR. SHAPAR:
The difference being that almost no 2 basis is stated now.
3 MR. BICKWIT There is no requirement to set forth 4 facts, sources or documents.
5 MR. ROSENTHAL:
I don 't know how you would treat 6 the individual that comes in and pushes biomass and alleges 7 certain facts and points to Project Independence.
8 COMEISSIONER AHEARNE:
You would let him in.
9 MR. ROSENTHAL:
It seemed to me under Commissioner to Gilinsky's standard tha t that would be enough to get his 11 over the threshold.
12 COMMISSIONER AHEARNE:
We preferred to let him in 13 before.
14 COMMISSIONER GILINSKY:
This wasn ' t designed to 15 deal with that case or with any other specific cases.
It 16 seemed to me as a general matter it is useful to have as 17 zuch laid out as can be laid out at that point.
18 MR. ROSENTHAL:
Pight.
But I just was suggesting 19 it isn't going to change things in that case, and I didn't 20 vant to raise specific cases either except that that seems 21 to have been the case which triggered this whole exercise.
22 COMMISSIONER AHEARNE:
No.
I think that that case 23 ended up being a flash point but it didn't trigger it.
24 MR. 30SE3 THAL:
It wouldn't have changed the 25 result in that case with this proposal as I understand it.
ALOERSCN REPCRTING COMP ANY, INC,
1 56 1
1 COMMISSIONER AHEARNE:
Righc.
2 CHAIRMAN HENDRIIs Do you think it is worth trying 3 to draft some language?
4 MR. BICKWIT:
I do.
5 COMMISSIONER GILINSKY:
Well, the language is 6 basically what he has there.
7 COMMISSIONER AHEARNE:
I will point out, Joe, that 8 ay vote would only be for going out for comment if the other 9 alternatives were included.
10 CHAIRMAN HENDRIE:
Peter, where would you be 11 inclined to stand?
12 COMMISSICNER BRADFORD:
I have no difficulty with 13 something based on Victor's second paragraph, but that is as 14 far as I would go.
15 CHAIRMAN HENDRIE:
But you would not be inclined 16 to go out with a set of alternatives for comment as John 17 would?
18 COMMISSIONER BRADFORD:
No, really not.
19 CHAIRMAN HENDRIE:
Do you really think it is worth 20 anything?
'R.
SHAPAR:
Yes.
21 d
22 MR. BICKWIT:
I do, too.
23 COMMISSIONER GILINSKY:
Why don't you just read 24 those parts of the proposal that would stay sC we have a 25 clear idea.
ACERSON REPCATING COMPANY, ;NC,
b 57 1
MR. SHAPAE:
I think the comments will come back 2
though that it is not.
3 MR. BICKWIT Do you want me to read the proposal?
4 COMMISSIONE3 GIIINSKY:
Yes, just a couple of 5 paragraphs of it.
6 MR. SICKWIT There is a reference in the rules to 7
the filing of a supplement to your petition to intervene 8 which sets forth contentions.
The reference in this 9 particular proposal is to that supplement.
10 It says:
"The supplement must set forth a concise 11 statement of the facts supporting each contention together 12 with references to the written documents and other 13 information relied upon to show the existence of such 14 facts.
A party may as to a particular contention of a 15 petitioner" -- well, I think you have to fix that.
16 I think that is really the essence of your 17 proposal.
I don't think ir would have to be further 18 specified but the understanding would be that if you failed 19 to set forth a concise statement of facts with these 20 references that your contention would not be admitted.
21 CHAIRMAN HEND3II:
Why don't you frame something 22 along that line and let us look at it at a future meeting.
l 23 MR. BICKWIT:
Now we have been here quite a 24 while.
I am not sure we are in much position to staqqer 25 forward.
l AL:ERSoN AEPCRTING COMP ANY, INC,
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Have Commissioners has a chance to thumb through 2 Len's rewrite?
3 COMMISSIONER AHEARNE.
A chance is the right way 4 of describing it.
5 (Laughter.)
6 COMMISSIONER BR AD10RD:
Whether or not I have had 7 a chance, I haven't 8
CHAIRMAN HENDRIE:
And having had the chance have 9 they done so.
10 (Laughter.)
11 COMMISSIONER AHEARNE.
7 rkammed it.
12 CHAIRMAN HENDRIE.
All in favoz say Aye.
13 COMMISSIONER BRADFORD:
I am in favor of time for 14 a chance to read it.
15 (Laughter.)
16 CHAIRMAN HENDRIE:
If we had had a more rapid 17 conclusion to the o ther discussions I could go through it, 18 but at this hour ---
19 COMMISSIONER BRADFORD:
You still have got an 20 affirmation of sone sort.
21 CHAIRMAN HENDRIE:
Yes, we still got affirmations 22 and I have got to off and I hope you vill come along and we 23 have got to fix agendas.
So ve are not about to be through 24 for the afterncon.
25 m: ' u.:a-
- =t I guess I will call it quits on ACEASoN REPCATING COMPANY, nNC,
'l 59 1
this subject at this time.
The next time we go.around it 2 vill be the policy statement.
3 (Whereupon,.at 4: 30 p.m.,
the mee ting concluded.)
4 5
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l ALOERSCN REPCRTING CCMPANY,,NC.
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MUCLEAR PEGULATORY CD.94ISSICN 1
This is 30 Oertify tha; the at achec pr0ceedings bef0re :he COMMISSION MEETING in the matter Of:
Public Meeting - Discussion of Revised Licensing Procedures Date Of ?r0ceecing:
April 23, 1981 Dc0ket !!u= b e r :
? lace Of ?r0ceecing:
Washington, D. C.
were held as herein appears, anc -ha-
-his is :he Original ranscri;-
therecf f0r -he file Of the C0==i35*Or..
Mary C.
Simons Cfficia; ?.eper:er (Typec:
h w l'. G a
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e....
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l P00ROR8NAL