ML20004D034
| ML20004D034 | |
| Person / Time | |
|---|---|
| Issue date: | 05/19/1981 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| Shared Package | |
| ML20004D035 | List: |
| References | |
| FRN-46FR20215, REF-10CFR9.7, RULE-PR-2 SECY-81-202C, SECY-81-304, SECY-81-307, SECY-81-310, SECY-81-311, NUDOCS 8106080224 | |
| Download: ML20004D034 (90) | |
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- 4 NUCLEAR REGULATORY CCMMISSICN c..
COMMISSION MEETING In the Ma W
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PUBLIC MEETING DISCUSSION OF REVISED LICENSING PROCEDURES l
DATE:
Ma?. 19, 1981 PAGzg:
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Washington, D. C.
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1 UNITED STATES OF AMERICA 2
NU' CLEAR REGULATORY COMMISSION 3
f 4
Public Meeting 5
8 7
DISCUSSION OF REVISED LICENSING PROCEDURES 8
9 Room 1130 to 1717 H Street, N.W.
11 Washington, D.C.
12 Tuesday, May 19, 1981 13 The Commission met at 10 : 0 5 a. m., pursuant to
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14 notice.
15 BEFORE:
18 JOSEPH HENDRIE, Chairman.
l 17 -
JOHN AHEARNE, Commissioner.
18 PETER BRADFORD, Commissioner.
19 VICTOR GILINSKY, Commissioner.
20 21 Present for the Office of General Counsel:
22 L. Bickwit, Esq.
l 23 M. Malsch, Esq.
24 1
25 Present for the Office of the Secretariat 4 l
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1 PROCEEDINGS 2
(10:05 a.m.)
3 CHAIRMAN HENDRIEs The Commission will come to
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4 order.
We will embark once more on yet another in a series 5 of Commission meetings on the licensing process.
6 We have for this mieting a series of papers from 7 the general counsel.
The first one I would like to deal 8 with is the paper on a final rule amending Appendix B to 9 Part 2.
You will recall that we had agreed to go out for 10 public comment on two possible changes to Appendix B.
11 One of them would reduce the review time taken by 12 the Commission af ter an initial decision by a board from the 13 expected three months to about two, and the other one would
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14 reduce it the whole three months.
15 There are also in that the consideration of the 16 options, of course, of not changing Appendix B, that is, of 17 leaving th e three months review in place; and finally, there 18 was the option of simply removing Appendix B completely and 19 going back to the im.nediate effectiveness rule which had 20 been in place before November of
'79.
21 (At 10:07 Commissioner Bradford left the room.)
22 CHAIRMAN HENDRIE:
Len, let me ask you to '
23 summarize, comments and your recommendations on the Appendix 24 B rule.
25 MR. BICKWITs The comments really related to those ALDERSoN REPORTING COMPANY INC.
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1 four options, as you have seen in this paper, and the 2 innervenor communit'y was generally inclined tu leave 3 Appendix B as is or, as a fallback, to support option A as 4 proposed.
5 The industry-oriented comments were generally 6 inclined to go back to the immediately effectiveness rule 7 or, as an alternative, to support option B as proposed.
8 (At 10:09 a.m.,
Commissioner Bradford returned to 9 the room.)
10 MB. BICKWITs We have recommended, not on policy 11 grounds but to reflect our view that option A is more likely 12 to receive three votes from this Commission, we have 13 recommended that a variant of option A be adopted.
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14 The issues that we want the Commission to focus 15 on, assuming that observation is correct, the issues that we l
16 vant the Commission to focus on is exactly what should the 17 stay standard be; secondly, should there be a valver 18 provision which would allow 'a waiver to a more flexible 19 degree than would the current waiver standa rd of 2.758.
20 That's about all I have to say.
21 CHAIP.EAN HENDRIEt Since this isn't precisely a 22 new subject and we have all anticipated the' comments coming 23 back in and so on, let me sample up and down the line and 24 see if indeed option A is where there is a musterable 25 majority.
John, what would you --
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1 COMMISSIONER AHEARNE:
I would like to ask one 2 question.
3 CHAIRMAN HENDRIE:
By all means.
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4 COMMISSIONER AHEARNE:
len, on page 13 you have, I 5 believe, carried language of the previous, which talks l
6 about, as a result of analyses still under way the l
7 Commission may change its present regulations, et cetera.
I 8 would have thought ' chat at some point that kind of language 9 ought to be removed.
And I raise the question, isn't it nov 10 that point?
11 MR. BICKWITs I would agree, at some point it 12 ought to be.
I would be inclined to think that now is not 13 the point, that you are out for comment with rules, proposed
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14 rules which are designed to provide a sufficient basis for 15 granting a license, but you haven' t adopted them yet.
I 16 would suggest coming back to this once they are adopted.
17 COMMISSIONER AHEARNE:
I guess I would have 18 thought that we were sufficiently close that --
19 MR. BICKWIT:
What you are presently operating 20 under at this point is the earlier policy statement, the 21 December version of the policy statement.
And that will be 1
22 the operative guidance to the board's until you come to 23 rulemaking.
24 COMMISSIONER AHEARNE:
I understand that.
My only 25 point was that it seemed to be a little cleaner to not to ALDERSoN REPORTING COMPANY,INC,
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1 then at some later stage have to have another change.
2 Joe, without surprise, I'm sure you know that I
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3 would prefer the option B, because I believe that is the 4 only one that really will end up with the Commission having 5 an opportunity to seriously review the license.
I don't 6 believe that the option A will do that.
7 CONHISSIONER BRADFORD:
I do prefer option A.
I 8 have made a number of small revisions to what OGC 9 circulated, only one of which has any real effect on the 10 option.
I can circula te that at whatever moment you think 11 is useful.
But for purposes of just coun ting heads, count 12 me as. option A.
13 CHAIRMAN HENDRIE:
Vic?
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14 COMMISSIONER GILINSKYs I don't think it's any 15 surprise to you that I'm an option A Commissioner.
16 CHAIRMAN HENDRIE:
Since option A was your sort of l
17 counter-of f er at the time we discussed changing Appendix B, 18 w hy, I'm not surprised.
19 Let me note for the re co rd tha t my preferences run 20 as follows:
A, reinstate the immediate effectiveness rule.
21 Failing that, adopt option B and take the Commission out of 22 a t least the direct line o'f review after a licensing beard
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23 has made the initial decision, although leaving them with 24 the ability to get to it in th ree months.
25 Finally, working my way down, cearching for two l
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1 other Commissioners whom I can join in creating a majority 2 for action, option A I consider enormously better than the l
3 present situation and it is, after all, the place I have 4 long since myself concluded that we would end up.
It is 5 also the basis for the present scheduling which the staff is 6 reporting on cases.
l 7
And I will therefore, John, with recognition that 8 if you were here and I were there --
9 (Laughter.)
10 CHAIRMAN HENDRIE4
-- we'd be saying each other's 11 speeches, I will vote for option A.
12 Now, that comes out not a formal action of the 13 Commission.
I would declare it simply establishes where the
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14 majority will lie on this.
l 15 Peter, let's talk about language and maybe let's I
16 thumb through this thing with Len, because there are some 17 questions.
Before you get started, let me ask Len one.
l l
1,1 Expecting this, how come you provided in the SECY 19 paper a draft of a new Appendix B?
In it for operating 20 licenses you incorporate a changed stay standard, "whether l
21 in the public interest" it's best to stay, whatever the 22 nature of the iss'ues, et cetera, et cetera.
You did no t, 23 t ha t I can see, include language to take up Duke Power's 24 suggestion about vaiving in a case where the Commiscion felt 25 it had previously provided policy guidance.
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What I wanted to ask was, you seemed to think 2 there was some merit to providing that flexibility.
To wha t 3 extent would explicit language along that line increase the 4 flexibility that it seems to me that the Commission has 5 now?
That is, at the present time if we adopt option A more
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6 or less as draf ted, once the board issues an initial 7 decision, then if the Commissioners conclude that, gee, the 8 only issues they have been arguing about in this case are 9 ones that we looked at, you know, in Smith Unit No. 2 two 10 months ago, and it's settled and why are we doing this 11 again, I would think Commissioners would just go ahead and 12 vote the case out without taking the nominal 30 days or 13 whatever.
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14 Now, is there something else in the sort of waiver
.15 that Duke Power proposes that I don't see and would be 16 advantageous ?
17 3R. BICKWIT:
I think they could do that.
I think 18 if the Commission plans to do that on occasion, it would be 19 best to have something in the way of language in the rule to 20 signal that possibility, to signal that they are not going 21 to use their 30 days as a standard practice in circumstances '
22 where they feel they have provided policy guidance in 23 earlier proceedings, f or example.
24 COMMISSIONER GILINSKY:
W..it a minute.
As I 25 understood the change, it would do away with the Commission ALDERSON REPORTING COMPANY,INC, A$ VIRGINIA AVE S.We W$HINGT@N D.C. 82164 G858 E54-MkB t
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2 HR. BICKWIT:
Yes.
But the Commission would make 3 the determination that it was going to waive the rule.
So 4 in effect you've got the Commission voting on something.
5 COMMISSIONER GILINSKY:
Yeah.
But Joe is talking 6 about a situation where the Commission voted say the day 7 af ter or the same day, or anyway immediately after.
8 CHAIRMAN HENDRIE:
48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> or at dawn on Sunday.
9 COMMISSIONER GILINSKYs That's right, and you said 10 if you're going to do that you ought to signal it in the 11 rule.
But what you're talking about in the rule is a change 12 which would' do away with this 6:00 a.m. Sunday vote.
13 HE. BICKWITs I guess that's true, and it's a very 14 minor difference.
15 COMMISSIONER AHEARNE:
With your and Joe's 16 interpretation, I don't see why you need any changes.
17 COMMISSIONER GILINSKY:
That's what I think.
If 18 the Commission feels cheerful and happy about the result, 19 they can vote ten seconds af ter the board decision has come l
20 d o w n.
21 CHAIRMAN HENDRIEs I guess, Len, as I think about 22 it the one proposition that having explicit valver language 23 might do for you is, as the case came along and it was 24 recognizable as a narrow one and the issues have been dealt 25 with before and your observer didn't see anything, it's ALDERSON REPORTING COMPANY. INC.
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10 1 possible that you might come to us anticipating a board 2 initial decision, say a couple of weeks or months 3 beforehand, and say, we think this is a case where you need 4 very little review.
The Commissioners might agree and then 5 vote not to review.
6 So then even before the initial decision issued, 7 we have said, we've taken ourselves out of it.
8 MR. BICKWIT:
For planning purposes, I think that 9 would be helpful to the parties.
I think the parties are 10 aware of that.
11 CHAIRMAN HENDRIE:
Well, it would be helpful to 12 the parties, probably.
But it seems to me that's the only 13 case where it's apt to do much for you.
Once'the initial
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14 decision issues, then it's as much trouble to get 15 Commissioners together and get them to agree not to review 16 as it is to get them to agree there isn 't much to review and 17 get them to vote the damn thing out.
18 MR. BICKWIT I agree.
I almost agree.
I think 19 it's a little easier if you've got something in the rule l
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20 t h a t contemplates you're going to waive this on occasion to l
21 get them to the table and say, let's do this, let's take t
22 this track that we've got written down there in the rule as l
23 a track that we may take on occasion.
l 24 COMMISSIONER BRADFORD:
Suppose you just changed 25 "within 30 days" to be "not more than 30 days."
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1 MR. BICKWITs I think my point still stands.
I 2 think these are all rather minor distinctions.
3 CHAIRMAN HENDRIEa I like your word change, 4 because I would hope that would be what we would do anyway, 5 Peter.
But it seems to me that it 's so clear there are 6 going to be very many cases where one would decide before 7 the board's initial decision that one did not want to take a 8 look at.
9 I don't know.
Maybe -- I think Duke Power's 10 recommendation is not without a certain cognizance of the 11 status of Maguire.
12 (Laughter.)
13 CHAIRMAN HENDRIE:
Now, Maq'uire is the last case n
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14 we're ever going to see where there's going to be that sort 15 of thing.
Well, maybe we could just do something for 16 Maguire in some civil case 17 (Laughter.)
18 CHAIRMAN HENDRIE:
Don't laugh.
The laws of the l
19 United States are full of these kindds of things.
They stay l
20 o n the statute books for a hurdred years, having been
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21 applied f or the specific benefit of Minnie Smith in 1847 and 22 it 's still there.
23 Well, I don't know.
Any inclination to -- I must 24 say, I'm not myself that enthused about trying to find the i
25 right words to express the waiver.
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Let me ask another related question, then, before 2 I turn it over to Peter.
As I read this thing and 3 understand it, there is no profound analysis that the g
4 Commission is compelled to produce to show that it's done 5 something meaningful in its review.
It has a certain -- the 6 proposition is that the Commission has decided that it wants 7 at least a few days to look the case over and listen to your 8 office and see if it sees any reason why the progress 9 shouldn't go ahead out at the plant pending appeals and so 10 on.
11 MR. BICKWIT:
Tha t's correct.
12 CHAIRMAN HENDRIE:
And when it decides -- when the 13 majority of Commissioners decide that the license can go
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14 ahead and issue, the Commission just says:
Director of NRR, 15 issue the license.
16 MR. BICKWIT:
Tha t was contemplated.
17 CHAIRMAN HENDRIE:
So I don't see any great i
18 agonizing se t of findings that we have to rise to, no six l
l 19 criteria under Section 120, whatever it is.
l 20 Okay, Peter -- since I'm looking your way, I may 21 vant to make sure that I don't leave John with his hand up,
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23 him there very long he'll go to sleep.
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24 (Laughter.)
25 CHAIRMAN HENDRIE:
Do you ha ve anything?
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COMMISSIONER AHEARNE:
No.
I just intend to have' 2 a short dissent.
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3 CHAIBMAN HENDRIEs Well, short, but I trust 4 peppy.
5 COMMISSIONER AHEARNE:
I would say peppy.
6
( La ugh te r. )
7 CHAIRMAN HENDRIE:
Peter, you had some things you 8 van ted to whack at?
9 COMMISSIONER BR ADFORD :
Let me circulate it.
With 10 one exception, they aren't substantive.
And it's really --
11 CHAIRMAN HENDRIE:
Would SECY like to have one for 12 the record?
13 COMMISSIONER BRADFORD:
There may be a couple of i4 others available. for Messrs. Shapar, Rosenthal and Cotter.
15 Bill, do you have any spares?
16 CHAIRMAN HENDRIE:
Now this comes right out of the 17 paper, I take it.
The base document is in fact the draft 18 final rule and the SECY paper?
19 COMMISSIONER BR ADFORD:
Yes.
20 CHAIRMAN HENDRIE:
Okay.
21 COMMISSIONER BRADFORD:
If you want to deal with 22 the substantive one first, it's on page 14A.
23 CHAIRMAN HENDRIE:
This kind of contradicts my 24 proposition of approach these things starting with the 25 least, but let's try it.
N.
ALDERSCN REPORTING COMPANY,INC,
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COMMISSIONER BRADFORDs It's down at the bottom.
2 Don 't worry about the underlining.
3 CHAIRMAN HENDRIE:
Len?
4 MR. BICKWITs On the substantive proposal, I 5 certainly don't have any problems with that.
What you're 6 shifting is you're making a standard request -- it was 7 contemplcted that the Commission could request comments.
8 You're making a standardize request for them, telling the 9 parties --
10 CHAIRMAN HENDRIE:
Or if not request, telling them 11 they are acceptable and will be accepted and promptly 12 filed.
13 MR. BICKWIT4 Right.
14 CHAIRMAN HENDRIEs John?
15 COMMISSIONER AHEARNEs Well, actually it does two 16 things, I think.
Ftrst,.it will tend to lengthen the time 17 for the Commission review, both because -- it says five 18 days, but since it's in the mail I think the Commission will 19 f eel obligsted to review it even if it takes ten days.
And 20 in general, then OGC will take a certain amount of time to 21 review the submission before summarizing and coming to the 22 Commission.
But I think it 4111 quarantee a slightly longer 23 review.
24 On the other hand, it begins to move it toward 25 where there might be something actually meaningful about ALDERSoN REPORTING COMPANY,INC,
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1 this Commissic>.2 review, because I seriously doubt that in 2 the absence of the participants pointing out with any kind 3 of focus where the issues are, within that short period of 4 time the Commission would be able to do much other than 5 either go yea or nay on an insubstantial amount of 6 inIormation.
7 So I think Peter's proposal would be a good one.
8 COMMISSIONER GILINSKYa Your first point, about 9 the mail -- you said something about it being in the mail.
10 This has to be received within five days.
11 COMMISSIONER AHEARNE:
Yes.
But the way the whole 12 process works on rule comments and everything else, I think 13 if the Commission got a substantial block of paper and it 14 was a couple of days late, I just don't see the Commission 15 saying, well, too bad, I'm not going to look at it.
l 16 COMMISSIONER BR ADFORD:
I agree with you, there's 1
17 no control over this.
But it oughtn 't to be a substantial 18 block of paper.
For one thing, there really isn't any-19 time.
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20 COMMISSIONER AHEARNE:
'J e ll, except that I would 21 imagine that in most cases people who are in opposition to 22 the plant will have a sense early on that they a're not going 23 to succeed in their arguments, so that the-1 vill be 24 preparing at the same time.
25 COMMISSIONER BRADFORD:
I agree with that and ALDEF"pN REPGATING COMPANY. INC,
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s 16 1 that's -- in a sense, it cuts both ways.
It would suggest 2 they really ought to be ready before the decision comes out 3 with whatever they're going to send in.
4 COMMISSIONER AHEARNE:
I'm sure they will.
5 COMMISSIONER BRADFORDa The importance is lossened
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6 somewhat by the fact that the Commission can go to the 7 proposed findings of fact and other documents to discover 8 what the parties thought were important when the hearing 9 itself was concluded.
But this does give them a chance to 10 sharpen their points in the specific context of immediate 11 effectiveness, 12 COMMISSIONER AHEARNE:
On balance, as I say, I 13 think it will lengthen the time.
But I've all along f elt if 14 the Commission is going to have any kind of meaningful 15 review, it will take a longer period of time.
And this 16 would help.
It would be a meaningf ul review.
So I think it 17 would be a good cha.7ge.
18 COMMISSIONER GILINSKY4, What about limiting the 19 length of the submissions, so you don't just get proposed 20 findings sent up to you?
i 21 COMMISSIONER BRADFORD:
I said they ought to be 22 brief.
Do you want to put a specific number on that?
23 COMMISSIONER GILINSKY:
I don't know.
I'm just l
24 wondering about th a t.
What we really want is a very brief 25 note that comments on the decision rather than to get the I
ALDERSON REPORTING COMPANY,INC,
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2 COMMISSIONER AHEARNE What you would like is the 3 knowledgeable participants to, in a very terse fashion, 4 point out, here is the key point or points that you ought to 5 be aware of in the review or to think about.
6 COMMISSIONER GILINSKY4 I wonder if even a 7 five-page limit would not be unreasonable.
8 CHAIRMAN HENDRIE4 I would keep it brief.
Commen t 9 and received in five days, that's a sort of -- it seems to 10 se that -- I'll tell you what, Peter.
On the basis that in 11 aost cases where the Commission decides it ought to hear 12 f rom the parties, however, quickly, this will put that 13 process in motion automatically and people vill know about 14 it even bef ore the initial decision.
So that any case where 15 the Commission decided as part of our 30 days we'd like to 16 hear what everybody has to say real quick, sort of one last 17 paragraph a piece, this will be best.
18 COMMISSIONER BRADFORD:
I see what you're saying.
19 You 're trading maybe up to five days in those cases where 20 the Commission could otherwise do it within a day or two as 21 against the situation in which the Commission would sta rt on 22 day one to ask for comments and therefore --
23 CHAIRMAN HENDRIE:
Or the Commission starts on day 24 one when the initial decision arrives on the doorstep, and 25 hems and havs and ten days later decides, well, why don't we ALDERSoN REPORTING COMPANY,INC,
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?
I see what everybody has got to say, everybody submit one page 2 on the following subject, you know.
And then you've got to I
3 vait five or ten days to prepare and a few days for it to 4 come in.
And you're way down the line.
5 COMMISSIONER BRADFORD:
Fair enough.
6 CHAIRHAN HENDRIE:
This puts it ahead, and I guess 7 on that basis -- and I might guess that there is at least a 8 reasonable chance that the Commission might ask for 9 reasonable comments from parties, you know, some reasonable 10 fraction of cases -- I guess I find this probably overall 11 not ta be a thing which extended the process; in a given 12 case, maybe slightly, but probably overall in most cases 13 probably moves it.
14 MR. ROSENTHAL What do you mean by within five 15 days of the board's decision?
Because if you mean within 16 five days of the day that the board's decision is issued, 17 many of the parties won't have the board's decision by that 18 tim e.
19 CHAIRMAN HENDRIE:
That will make the comments 20 brief.
l 21 (Laughter.)
22 MB. ROSENTHALs Well, you've got to bear in mind 23 tha t the board 's decision issues in Bethesda.
It's sent 24 downtown.
Sometimes if it's issued on a Friday it may not j
25 be ser ted until the following Honday.
It's received two or l
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19 1 theee days later.
And there's the five days before they 2 have an opportunity to write it, let alone transmit it and
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3 get it into the hands of the Commission, since it must be 4 received --
5 MR. COTTERa Normally these kinds of things are 6 phrased in terms of receipt of.
7-MR. BICKWITa But if you go where you're headed, 8 then the ten-day period with respect to low power licenses 9 is --
10 MR. ROSENTHALs I'm raising the point that this is 11 vritten as a rubber sandwich in terms of comments.
It 12 doesn 't accomplish anything.
13 (Laughter.)
14 CHAIRMAN HENDRIE:
Well, it depends.
What it 15 says, for the great majority -- for the majority of parties, 16 it won't need comment.
What it means is the Commission will 17 accept a brief comment post the initial decision from any 18 party.
But it's got to be fast if it's going to be 19 compatible with the Commission 's schedule.
20 And all parties are then on notice that if they 21 vant to make a comment on the initial decision they are 22 going to have to make their own arrangements to have speedy 23 access to the initial decision and have speedy delivery of 24 their comments here to the Commission.
And indeed the mail 25 von 't do it.
If th'er want to sit in California and wait for ALDERSON REPORDNG COMPANY. INO,
s 20 1 the mail to get there from Bethesda and then mail something 2 back, they aren't going to make it.
3 And all I can say is that the California 4 interventions are sufficiently well funded to arrange for 5 representation here.
6 MR. ROSENTHAL:
It would seem to me there would 7 have to be an obligation
- on the part of licensing boards to 8 notify the parties by telephone on the date of issuance, 9 because otherwise, unless there's somebody permanently to stationed in the East-West Towers, they'd have no way of 11 knowing.
12 COMMISSIONER GILINSKY We do not normally notify 13 the parties of when a decision is going to come down?
14 COMMISSIONER BRADFORDa Probably not, because 15 there 's no short time like this.
18 MR. ROSENTHAL:
My understanding is that we do not 17 have a set practice.
The appeal boards do.
The appeal 18 boards on any major decision will notif y the parties by 19 telephone.
20 COMMISSIONER GILINSKYa Well, presumably the date 21 is pretty well known several days in advance, because you 22 must just be d uplica ting the thing.
23 MR. COTTER:
Yes, we send it down for 24 distribution.
25 MR. 2!CKWTT:
Well, why don't we so provide it in ALDERSoN REPORTING COMPANY,INC, m
21
(
1 here.
2 COMMISSIONER GILINSKY:
But we've got to do our 3 part, too.
l 4
CHAIRMAN HENDRIE:
So provide what?
5 MR. BICKWIT That there will be telephone 6 notification in these cases.
7 MR. SHAPAR:
Do you want to put that in the rule?
8 MR. BICKWIT:
No.
9 MR. SHAPAR:
I didn't think so.
10 MR. BICKWIT:
I don't know why not.
11 MR. SHAPAR:
It doesn't bind the public.
It's 12 just an internal practice.
It can be done by " order," I 13 mean in quotes.
(
14 MR. BICKWIT I don't care how we do it.
15 CHAIRMAN HENDRIE:
It seems to me it's more an 16 internal practice matter and the boards can simply tell 17 parties the last time they see them at the hearing that if 18 any party would like to be notified by telephone when the 19 board decision or partial decision is about to issue.
My 20 guess is the board clerks do that on equest normally.
t l
21 MR. COTTER:
We can do it.
1 22 COMMISSICNER GILINSKY:
How far in advance could 23 you inform someone of a decision about to come down?
24 MR. COTTER:
In advance of the issuance?
26 COMMISSIONER GILINSKY:
Yes.
l ALDERSON REPORTING COMPANY,INC, ci3 MI~EINQ ANL RWm WWIMT@N, @).@, Si$4 GSM@ @_@_ __ _ _ __
s 22 1
CHAIRMAN HENDRIE:
Probably not more than a few 2 days.
3 HR. COTTERe I'd be happy to call them up once
(
4 that's done, but 5
COMMISSIONER AHEARNE:
He's not saying the 6 substance of it.
1 7
MR. COTTER:
I understand.
8 COMMISSIONER GILINSKY:
When is a decision dated?
9 Is it when it's signed or when it is actually released?
10 HR. ROSENTHAL:
Released.
I don't know about the 11 licensing boards, but we don't always know very far in 12 advance what our issuance date is going to be.
We always 13 have people who tinker around with the decision a t the last 14 mom ent.
For most decisions, Xeroxing is not an extensive l
t 15 period of time.
16 We wouldn't be able, in the context of an appeal 17 boa rd, to give in most cases very much advance notice.
18 COMMISSIONER AHEARNE:
So when you say telephone, 19 wha t you do is, when it's released you call them?
20 MR. ROSENTHAL:
That's right.
Or what will happen 21 frequently is --
22 CHAIRMAN HENDRIEs When you know it's on the way I
23 downtown or when you've stopped tinkering with it and it's l
24 gone to the Xerox machine, so the final thing is going to go 25 downtown --
l ALDERSON REPORTING COMPANY,INC.
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_ 400_ VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554 2345
l 23 1
MR. ROSENTHAL:
That's right.
But usually when we 2 make our telephone notification the opinion'is actually l
3 available within an hour if someone wants to send up for 4 it.
But that involves people who are in town here.
l 5
For those people that are out of town, normally, 8 unless it's an applicant lawyer who's got'some kind of 7 arrangement with some local law firm, the out of town people I
l 8 say mail it to us.
And if it's mailed to them, tha t 's two l
l 9 or three days.
And as I say, they would have about an hour 10 to prepare these comments so they could get them mailed back l
11 and received within five days of the date of issuance.
i 12-COMMISSIONER AHEARNE:
And even then that would be l
13 very uncertain.
14 MR. ROSENTHSL:
Well you could recei.e telephone 15 comments through the Commission duty officer.
l 18 (Lauq ter.)
F 17 CHAIRMAN HENDRIE:
We've already got one man out 18 there with the tape machines and so on.
19 COMMISSIONER BRADFORD:
What would you think of 20 actually going back to the old formulation as to low power, 21 and moving the number of days up to say 10 for full power?
22 Because as Alan points out this process is not likely to be 23 meaningful in the low power cases.
Just say that as to lov 24 power the schedule is such that the Commission won't 25 well, whatever the original language was.-- whatever the ALDERSoN REPORTING COMPANY,INC,
s 24 1 original language was.
There is no -.
2 COMMISSIONER AHEARNE:
Ten days counted as --
3 COMMISSIONER BRADFORD:
Ten days from issuance.
4 CHAIRMAN HENDRIE4 I'll let John get his comment 5 in.
It sounds reasonable to me, because'the thing that's 6 pressing the tins is the ten days for low power.
7 On the other hand, for low power you're not 8 signing off on the plant for 30 years or something like that 9-and the risks are enormously less f or low power and you 10 probably have a good deal less -- yes, I see a finger 11 raised.
12 MR. BICKWIT:
This now I think revives the Duke 13 Power issue.
You are now in the circumstance where you are m
14 saying each and every time there will be a ten-day delay 1
l 15 with respect to the issuance of a full power license, and is now you are no longer in the situation of saying that Duke 17 Power's proposal is --
18 COMMISSIONER GILINSKY:
Except you could approve, 19 low power operation, a nd you can' t permit more than low 20 power for sore than ten days anyway.
21 MR. BICKWIT:
Assuming you have a low power 22 license.
23 COMMISSIONER BRADFORD:
I was going to suggest on 24 that point, that is the case where the Commission really 25 f elt there was no reason to hold up at all -- I hadn't ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
s 25 I
1 thought of that when I wrote this originally -- but you 2 could always put in at the end of the sentence, which now
(
3 would apply only to full power, "unless the Commission 4 decides to the contrary."
That is, if one day when the 5 Commission says, look, this is just not one that we have any 6 doubts about at all.
7 COMMISSIONER AHEARNE:
Anybody for option B?
8 (Laughtar.)
9 CHAIRMAN HENDRIE:
Say --
10 COMMISSIONER BRADFORD:
You could simply let the 11 parties know that comments wouldn't be received, and they'd 12 probably get telephone calls to that affect before they 13 receive the decision anyway.
14 COMMISSIONER GILINSKY:
But since you have the low l
15 power option --
16 CHAIRMAN HENDRIEs They may already be there.
I 17 think in a good many of these cases either.we will have some 18 legislation that will. allow us to uncork on the low power l
19 while the hearing is going on or, if not, people with plants 20 that are ready will be pressing boards for low power 21 permission, so that at least the near-term cases, like the 22 next year and a half, I think you will more likely than not 23 come to a full power decision with the plant already chewing l
24 a wa y a t fuel loading and low power tests.
25 COMMISSIONER GILINSKY:
We won't get suggestions?
l l
l l
ALDEldON REPORTING COMPANY,INC,
i 26
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1 CHAIRHAN HENDRIE:
How does that strike you?
2 HR. BICKWITa I think that's fine.
3 CHAIRHAN HENDRIE:
let us do that, then.
Okay.
4 But I wouldn't put telephone notification.
If you want to 5 put something in the st'atement -- but I wouldn't even sey it 6 there.
7 I'll tell you what.
I'll issue one of those 8 yellow announcements to all employees.
Answer the telephone 9 will be the instruction.
10 Let's go back to page 1 of Peter's marked up 11 version.
12 COMMISSIONER BRADFORD:
The big deletion in the 13 top and bottom is self-evident.
The big one in the middle 14 -- it just doesn't seem to me the reason we're doing this, 15 unless the point occurs again later, is because of the
~
16 progress we have made.
The reason we're doing it is we have 17 become a wa re tha t the progress we have made takes a little 18 longer than it needs to and it's become apparent that time 19 is of the essence in these cases.
20 COHMISSIONER AHEARNE:
I will then point out in my l
21 dissent, I will add the comment that I think one of the 22 reasons that the Commission should be making changes is 23 because we have made progress in incorporating the safety 24 requirements, because that at least was the original reason 25 I voted for putting in Appendix 3, because we did have those ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
,u.
i 27 1 uncertainties.
2 CHAIRMAN HENDRIEs Very good.
Want to 3 reconsider?
4 COMMISSIONER BRADFORD:
No, that wasn't -- I think 5 I agree with John about the original basis.
It's just that 6 ay level of certainty hasn't been enhanced all that much 7 because we've never used Appendix B in either a low power or 8 a full power case.
So I can't really say that we've tried 9 it out and discovered that 10 J0MMISSIONER AHEARNE:
Well, exac tly, and that's 11 why I would not. be in favor of a change just because there 12 appear to be some plants sitting impacted by Appendix B.
13 The change I would be in f avor of is because I think we have 7
14 done enough review that we can now go back to a different 15 phasing of the Commission involvement.
16 COMMISSIONER BRADF0ED:
The change on page a is 17 the same, 18 CH AIBMAN HENDRIE:
I don't have a comment with I
19 tha t.
John, I think your comments would be similar.
l 20 COMMISSIONER BRADFORD:
There's a change on page 5 21 that is really a reflection of the change we've already made l
22 to page 14A.
And then that really is it, except for other 23 minor changes on 14A and 15.
Now we are, I guess, adopting 24 14A as against 14.
OGC had set them out as alternative 1
25 standa rds.
l ALDERSoN REPoATtNG COMPANY,INC,
i 28 1
COMMISSIONER AHEARNEs I would certainly encocrage 2 that, for us to adopt 14A.
I think it is good the' 3 Commission recognizes the public interest in taking the 4 actions.
3 CHAIRMAN HENDRIE:
What do you mean by that?
6 COMMISSIONER BRADFORD:
I think he likes the 7 flexibility, even if you would have gone for more.
8 COMMISSIONER AHEARNE:
No, what I mean by that is 9 tha t we have recently had big debates about what does the 10 public interest mean, and some of the Commissicners have 11 been unwilling to support the use of the phrase.
12 COMMISSIONER BRADFORD4 Oh, I almost took it out 13 here too, for reasons that I had doubts about in another 14 con text.
15 CHAIRMAN HENDRIE:
There were a couple of things 18 on page 15 that were okay.
Go back to page 4 for a minute, l
17 about two-thirds of the way down, the benefit.
18 (Laughter.)
19 CHAIRMAN HENDSIE:
I'm not sure that thing says 20 exactly what we mean.
It's not your change, Peter.
It's 21 your change that drove me to read it yet again.
I 22 COMMISSIONER BRADFORD4 Well, that's what I l
23 figured.
I wasn't sure you would accept the sentence, 24 any way.
But if you did, it seemed to me that it was a l
25 clarification of what was already there.
ALDERSoN REPCRTING COMPANY. INC.
400 VIRGINIA AVE S.W WASHINGTCN, D.C. 20024 (202) 554-2345
's 29 1
CHAIRMAN HENDRIE:
Read that benefit and see if 2 you think that's what the benefit is of the Commission i
3 taking a quick look at these things after the board.
4 COMMISSIONER BRADFORDs My guess is that it's 5 probably accurate -- or at least more or less accurate for 6 the Commission as a whole, while not necessarily being 7 accurate for some of the individual Commicsioners.
8 CHAIRMAN HENDRIE:
I don 't know.
9 COMMISSIONER GILINSKY:
I guess I would change it 10 or simply say " benefit of direct Commission" --
11 CHAIRMAN HENDRIE:
Well, I'm not sure that the
~*
12 Commissioners are necessarily more adept at assuring 13 conformance with Commission policy than the officers of the
(~
14 Commission, except that voting collegially the Commission 15 can take a new policy or by edict manda te that whatever it's 16 doing at the moment in fact is its policy, and obviously th e 17 officers can't do that.
18 MR. BICKWIT:
It was meant to include that 19 notion.
20 COMMISSIONER GILINSKY:
For the benefit of the 21 Commission decisionmaking and to the costs associated with 22 tha t, leaving open what pracisely that value is.
I'm not 13 sure we will all agree on it anyway.
24 CHAIRMAN HENDRIE:
Yes.
25 I wasn't arguing about whether there is one or ALCE son REPORTING COMPANY,INC, l
30
/
1 isn't one.
But it just seemed to me that the phrasing here 2 did not quite come to the sort of reasons that drew in at 3 least advance as to why Commissioners ought to have their 4 hands on these things.
It was in fa ' precis ely the act in 5 being of having hands on that shows the merit in it.
6 COMMISSIONER GILINSKYa What about simply saying 7 the benefit of direct Commission.--
8 CHAIRMAN HENDRIE:
Con sidera tion?
9 COMMISSIONER GILINSKY:
"Of nuclear power 10 operating reactor licenses;" and then --
11 CHAIRMAN HENDRIE:
Fine with me.
John, do you 12 have any objection?
13 COMMISSIONER BRADFORD4 What was the word tha t
(
14 comes af ter " Commission"?
15 MR. BICKWITs
" Consideration."
16 COMMISSIONER GILINSKY:
Or "decisionmaking."
~
17 COMMISSIONER BRADFORD:
" Consideration" is all 18 rig h t.
I just didn ' t hear you.
19 COMdISSIONER GILINSKY:
I think someone else 20 actually spoke the word.
l 21 MR. BICKWIT:
Well, that's the word I heard.
22 CHAIRMAN HENDRIE:
Okay.
Now how speedily can you 23 d rum up the language back on 14A?
24 MR. BICKWIT4 I think the language on luA is 25 drummed up.
ALDERSoN REPORTING COMPANY !NC.
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
31 1
CHAIRMAN HENDRIEs We:Li, you're going to fix up 2 Peter's 14A7
(
3 COMMISSIONER BRADFORD4 That's right.
4 CHAIRHAN HENDRIE:
To provide that for low power 5 propositions the Commission --
6 HR. BICKWIT:
I thought you were referring to the 7 star standard.
Conforming to Peter's proposals will take no 8 time at all.
9 CHAIRMAN HENDRIEs Okay.
So the change you' re 10 going to make, it will be not necessarily identical but very 11 closely along the lines at the bottom of 14A to -- I dol't 12 know.
"In fuel loading and low power operating license 13 matters, the parties shall have no right to pleadings, et
~
14 cetera."
I don't '.now whether you want to add "in view of 15 the shortness of time in which the Commission expects to 16 a ct. "
That's not necessary in my view, and I would be i
17 inclined to say no pleadings unless we ask for them.
Okay?
18 And then go on to say s "For full power operating 19 license matters and consistent with the target schedule set 20 f orth above, the parties ma y file," et ce te ra.
That is 1
21 Peter's comment, and make it received within ten days of the 22 boa rd decision, by which we understand the issuance of the 23 board decision.
24 MR. SHAPAR:
There are cases where you get 25 something between full power and low power, and like one l
l ALDERSoN REPORTING COMPANY. !NC,
s 32 1 request for 35 percent.
Which of the two standards would 7
2 apply?$
3 COMMISSIONER AHEARNE:
Is low power defined in our 4 either revised' regulations or regulations? So then the low 5 power is anything other than full power?
6 MR. BICKWIT:
I think that's right.
7 COMMISSIONER GILINSKYa Well, we've been using th e i
I 8 five percent break point.
9 MR. BICKWITs But if it's a 50 percent license, I
l 10 does the Commission intend that there be a 10-day period or 11 a 30-day?
i 12 CHAIRMAN HENDRIE Well, steady now.
I'm reminded l
13 that just because there is a problem, that doesn't mean 14 there is a solution.
15 (laughter.)
18 CHAIRMAN HENDRIEe That is, the universe of 17 problems exceeds the universe of solutions, probably.
And 18 this one, while not being necessarily solutionless, I think 19 there is no need to confront it.
I 20 If it's the first piece of permission to put fuel 21 in a reactor that the Commission gets, then it isn't going l
22 to be 35 percen t or fio percent, because if it's 35 or 50 23 percent it might as Fell be full power, okay.
You're l
l 24 setting close enough tt
.ne fi ssion product inventory so l
l 25 that you're going to have to make essentially the full power i
ALDERSoN REPORTING COMPANY. INC.
400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
's 33 1 safety case.
2 COMMISSIONER BRADFORDs Unless our rule is written 3 in such a way that there is a great advantage in filing for 4 99 percent, in which case we'll start seeing 99 percent 5 applications.
6 CHAIRMAN HENDRIE:
I'm just saying the first thing 7 we'll see, if you're going to see something which allows the 8 plant to get started, the first thing you're going to see is 9 the five percent sort of thing.
So if it's that sort of a 10 thing, then the ten days will clearly operate.
11 For the next ones on up the line, if there is 12 another one before full power, I would just say the 13 Commission shape it as it suits.
If we find out the board 14 is going to deal with a 35 percent interim stage, why, OGC 15 can tell us that's apparently going to come and we decide 16 what we do about the review.
17 I just don't see it's worth trying to spell out l
18 h e re e ve ry conceivable circumstance.
And I must say, I just 19 d on ' t think we're going to have cases like that.
20 COMMISSIONER BRADFORD:
That's probably right, 21 although I would be reluctant to lay down a standard that 22 anything other than full power was low power, just because I 23 think that would start to encourage the 99 percent.
24 CHAIRMAN HENDRIE Ch, I think that's right.
25 Again, I would not interpret it, for precisely the reason ALDERSoN REPoR7NG COMPANY. INC.
34 1 that as you come down from full power the fission product
(
2 inventories do not get down to the place where you can see, t
3 gee, this operation, you know, is just almost sort of
(
'4 trivial compared to full power operation, until you get 5 substantially down and until the mode of operation is indeed 6 not one in which there are weeks of running at the allowed
,7 power to build up the equilibrium inventories.
8 So I think low power, full power, is sufficient 9 languge here and I don't see a need to define it beyond 10 that.
Okay.
Now, with that understanding about the way the 11 language goes on 14A, would you be agreeable with being 12 asked to vote on it with the understanding that you got a 13 look at that language before it issues, but that we will not
(
14 need to come to the table and vote again, you know, unless 15 there turns out to be enormous confusion or disagreement 16 over the 14 A language and I have to bring it back?
17 COMMISSIONER BRADFORD:
The only other reservation 18 I would have is, John is still circulating a --
19 COMMISSIONER AHEARNE:
It will take me about a day 20 to draf t tha t.
21 COMMISSIONER BRADFORD:
-- a separate comment.
22 And I'm certainly prepared to vote for this in principle.
23 If John makes some really telling points, I would want to 24 reserve the --
25 COMMISSIONER AHEARNE I don't think there will ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
i 35 1
be--
2 COMMISSIONER GILINSKYs Do you guarantee a 3 percent?
4 COMMISSIONER AHEARNEa No, I guarantee that they 5 vill be unemotional and short.
6 CHAIRMAN HENDRIE Len, if I concur in John's 7 comment --
8 (Laughter.)
9 CHAIRMAN HENDRIE:
-- do I also vote for the 10 rule?
11 All right.
Those in favor of amending Appendix B 12 to part 2 as discussed this morning, please indicate by 13 sa ying a ye.
14 COMMISSIONER BRADFORD:
Aye.
j 15 COMMISSIONER GILINSKYa Aye.
16 CHAIRMAN HENDRIE:
Aye.
17 COMMISSIONER AHEARNE:
No.
18 CHAIRMAN HENDRIE:
The motion carries three to l
19 one.
There will be an amendment to Appendix B which will 20 have hopefully the effect, in spite of John's pessimism on l
21 the point, of reducing Commission review time after an 22 initial decision f rom a prospective three months to a 23 prospective one month.
24 We still have time to make further progress at 25 this point.
On to the policy statement, I think.
Would you l
ALDERSON REPORTING COMPANY,INC, 9mua fn.fnuryn
s 36
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1 rather do that or would you rather take up the sua sponte?
(
2 HR. BICKWITs I'd rather do the policy statement.
3 COMMISSIONER BRADFORD:
I guess I would too, just 7
4 because I haven't even had time to look at Tony's.
5 HR. BICKWITs I think'it's one that's in reach of 6 getting out.
And also, if by any chance it does take us to 7 the end of the hour, it will give people a chance to read 8 Tony's memo on sua sponte.
9 COMMISSIONER AHEARNE:
We spent a let of time 10 starting with Tony's memo back in March, and in two and a 11 half months we ought to be able to get a response to it.
I 12 CHAIRMAN HENDRIE:
Picky, picky, picky.
13 MR. ROSENTHAL:
March 25.
Almost three.
14 CHAIRMAN HENDRIE:
Now let's see, on the policy 15 statement my notcs indicate that we sere to have a new draft 16 f rom OGC with the various improvements that had been made I
17 incorporated in it.
We have that.
What's the number?
SECY 18 81-202(2) is the version.
19 We were going to have some adjusted words in l
20 Soctions 3 A and 3D.
I think you adjusted at least the 3D.
l 21 fic has a counterproposal for adjusting 3D which I thought 22 was pretty good.
So I'm prepared to vote your 3D without 23 further ado.
24 COMMISSIONER AHEARNE:
I would like to ask Vic one 25 question.
ALDERSON REPORTING COMPANY,!NC, W MGNA AVE, S.W., WASHINGTON. D.C. 20024 (202) 554-2345
37 1
CHAIBMAN HENDRIEa please do.
2 COMNISSIONER AHEARNE:
Vic, you say in your first 3 page, down at the bottom, "The boards are reminded that ther 4 may limit the number of interrogatories."
Under what 5 regulation would they be doing that?
6 COMMISSIONER GILINSKY:
I thought 7
CHAIRMAN HENDRIE4 Ask Tony to answer and explain 8 you don't want to preempt the board chairman, and allow him 9 to answer it.
10 MR. COTTER:
I would assume that the referances 11 are to discovery, which is protected because it's burdensome 12 and considered unnecessary, and there's some kind of 13 protective motion filed.
14 COMMISSIONER GILINSKY:
I thought yesterday or the 15 last time we talke about this someone asked that question 16 and the answer was that the board could limit discovery if 17 18 MR. BICKWIT.
That wa s the answer I ga ve, although 19 I also agreed that it would be cleaner to do this by 20 rulemaking.
~
21 COMMISSIONER GILINSKY:
Well, we have a rule in 22 the works.
23 COMMISSIGHER AHEARNE:
No, I know that.
I was 24 just questioning.
It wasn't clear to me that right now the 25 boa rds can limit the number of interrogatories by say, if ALDERSoN REPORTING COMPANY,INC,
s 38 1 they find the benefits f rom such interrogatories outweighed 2 by the burdens imposed.
I think Tony's answer was that if 3 the parties on which the interrogatories are filed come back 4 and make a case, that this can be very burdensome, 5 unreasonable and so forth, that the board then could.
Is 6 that your point?
7 BR. COTIER Yes.
I warn't talking in terms of an 8 arbitrary imposition of some fixed number on that specific 9 situation.
10 CHAIRNAN HENDRIE Do the board's supervisory 11 powers under part 2 as it stands at the present -- without a 12 motion f rom a party objecting to discovery, could the board 13 simply reach down and say, listen, that's excessive, quit
(
14 it?
15 MR. SHAPAR4 I think tha t would be questionable, 16 because you 've got a standard f or discovery, of the 17 production of relevant evidence.
You have another rule tha t 18 says that if it's oppressive or harassing that it can be 19 limited on that basis.
I think Tony's answer is right.
20 COMMISSIONER BRADFORDs It's pretty hard to find
~
21 something oppressive or harassing before th e party objects 22 to it.
23 MR. COTTER 4 I would take exception to that.
I 24 think my own personal view is that as a matter of i
1 25 responsibility for managing the proceeding tha t they could ALDERSoN REPCRTING COMPANY. INC,
s 39 1 within limit take some action.
2 CHAIRMAN HENDRIE:
But if the party on whom the 3 interrogatories were being served seemed to shrug and not 4 care, why, the board is not very likely to say anything.
5 MR. COTTERS I'm not about to address what would 6 not appear to be a problem.
7 COMMISSIONER AHEARNEa My raising the question 8 wasn't meant to imply that I didn't think that the board 9 should not be interested.
And I think you're right, Vic, 10 this does pick up the sense of the answer last time.
Just 11 in thinking about it more, it didn 't seem to me that the 12 boards really had the kind of flexibility that was in mind.
13 COMMISSIONER GILINSKY.
Well, modify it so that it 14 conforms with the rules.
15 CHAIRMAN HENDRIE:
About the fourth line from the 16 bot tom, "The boards are reminded that," and then it seems 17 you need a comma, "in response to whatever kinds of motions" 18 -- what's the right language in response to a motion?
19 COMMISSIONER GILINSKY:
I would put it after 20 " find."
They may limit the ones if they find, comma.
CHAIRMAN HENDRIE Good.
What kind of a mot an is 21 22 it?
23 MR. BICKWITs It's an objection or a motion f or a 24 protective order, one or the other.
25 But I agree with Tony that there may well be ALDERSoN REPORTING COMPANY,INC,
.o 40
- authority on the part of the board to limit even before the 2 filing of such a motion or objection.
I'll admit it's not 3 --
4 COMMISSIONER AHEARNE:
We have a question --
5 MR. BICKWITs I'll admit it's f uzzy--
6 MR. SHAPAR:
A split among the lawyers.
7 MR. ROSENTHAL:
I'm very doubtfu.1.
8 CHAIRMAN HENDRIE4 The chief judge of the appeals 9 board is saying, boy, you bring an appeal up to me in which 10 some boa rds' discovery -- why, I'll fix them.
11 MR. 'ICKWITs It's not three to two among the 12 lawyers.
1at CHAIRMAN HENDRIE:
Who's the third?
Which way?
k 14 (Laughter.)
15 MR. SHAPARs You don't get two votes.
16 MR. BICKWITs I only had one.
l 17 MR. ROSENTHAL:
Apart from the question of whether 18 the board can do this sua sponte or not, it seems to me that 19 the standards for relieving a party of the obligation to 20 r es po ad to interrogatories are clear at this point, on 21 burdensomeness, relevance, et cetera.
Why the boards have 22 to be reminded of the f act that there a re these standard s 23 bhich they can police, at least upon application by a party, 24 is f rankly totally unclear to me.
25 It's another matter as to whether you want to get ALDER $oN REPORTINo COMPANY,INC,
__ 4 o wRomiA ave, sw.y_AssmoroN. o.c 2co24 voz) ss4 234s 1
7
a 41 1 into the restriction of the number of interrogatories, and 2 it's a matter on which the Commission, as I understand it, 3 is still under advisement or is going down.
But anyway, 4 that's a separate and distinct s'atter.
5 But in terms of no arbitrary restrictions, it's 6 simply a matter of the board policing the process so tha t 7 there is an avoidance of burdensome discovery, irrelevant 8 discovery.
That's fairly, I would think, clear to the t'is point.
And it would seem to me, quite h
9 boards at 10 candidly, to be ra ther demeaning to the boards for the 11 Commission to remind them of this tool t! at is available to 12 them to control discovery.
13 CHAIRMAN HENDRIE:
Alan, it is the fate of all of
(
14 us, I by Congressional Committees, you by the Commicsion, 15 and lawyers in cases b'y you, and staff engineers by the 18 lawyers and cases.
But one can see this chain stretching i
17 out into the remote distance.
It is all our f ates to be 18 reminded periodically of things which in principle we knov 19 perfectly well and in principle are carrying out.
20 MR. BOSENTHAL:
If tha t's the case, I would 21 shorten this by saying simply to the boards:
- Boards, 22 remember that you have the power to control discovery and go 23 and exercise those powers, rather than trying to fiddle with 1
24 a lot of refined language.
25 MR. COTTER:
I would endorse that to the extent
(
ALDERSON REPo6 TING COMPANY, thC.
400 VIRGINtA AVE., S.W., WAS"INGTON. D.C. 20024 (202) 554-23-c
s 42 1 that picking out interrogatorie:N which is only one 2 discovery tool, which is perhaps where this whole 3 conversation got hung up 4
CHAIRMAN HENDRIE:
Well, the paragraph is 5 provided, because we're looking at the matter specifically 6 of limiting interrogator 1ee.
7 MR. SHAPAR Well, I think there is a legal 8 question here.
Clearly from this discussion, I think Alan 9 and I would say that you have standards now in your rules.
10 If those standards are met, the guy is entitled to submit 11 his interrogatories.
And besides, he's on the appeal board 12 and he 's going to rule that way.
13 But we don't want ping-pong played here.
(
14 MR. COTTER:
Well, since, it's an interlocutory 15 aatter, I don't imagine it ever came to it.
16 COMMISSIONER BRADFORD4 Well, he would have an 17 opportunity, but not on an in,terlocutory basis.
18 CHAIBMAN HENDRIE:
We're going to have to take 19 strong measures, Vic.
Now listen, all you experts over 20 there.
Assuming we want to say so me thing in sentence two of l
l 21 this paragraph, "Pending a decision on the proposed rule,"
22 --
23 MR. SHAPAR:
" Limit interrogatories in accordance i
24 with the Commission 's rules" would do that.
25 XR. COTIER:
In the inherent authority of the l
ALCERSON REPORTING COMPANY,INC, I
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
s 43 1 presiding officer.
2 CHAIRMAN HENDRIE:
"The boards are reminded,that 3 they may limit the number of interrogatories in accordance 4 with the Commission's rules."
5 MR. SHAPAR:
Correct.
6 CHAIRMAN HENDRIE And you were trying to cork in 7 something else, but that covers it, doesn't it?
8 MR. BICKWIT:
The rules pick up your point.
9 MR. SHAPAR4 His argument is that the general 10 authority of the board would override the particular rule.
11 Alan and I don't think so.
12 MR. COTTERS Well, you're talking about a 13 particular rule that protects a particular party, and I'm
(
14 talking about general authority.
15 COMMISSIONER BRADFORD:
But the way it's phrased l
16 doesn't in fact pick up a particular rule.
It picks up the 17 rules.
18 CHAIRMAN HENDRIE "That they may limit the number 19 of interrogatories in accordance with Commission rules,"
20 right, period.
21 MR. SHAPAR:
It solves the question at the same 22 tim e.
23 CHAIRMAN HENDRIE:
That's been the outstanding l
24 characteristic of my administration.
25 Now, what else would be -- that was a good ALDERSON REPORTING COMPANY,INC, 6 WXIMr$T@EL RBL RFA36K&a OfEG.
i 44 1 discussion.
John, where else are you here?
2 COMMISSIONER AHEARNE:
That was my only question.
3 I'm afraid to ask any more.
We may get further 4 improvements.
I can accept the rest of it.
5 CHAIRMAN HENDRIEs How do you feel about Vic's 6 version?
7 COMMISSIONER AHEARNE That's fine.
8 CHAIRLAN HENDRIE:
I'll vote for it.
Vic, you're 9 honor-bound to vote for it.
10 Peter?
11 COMMISSIONER BRADFORD:
Fine.
12 CHAIRMAN HENDRIE:
Good.
Put Vic's 3D into the 13 policy statement as just amended.
(
14 Nov vith regard to the rest of the policy 15 sta tement, anybody got any problems with the edits and stuff 16 in the conversion?
Does anybody know of anything in here 17 that I don't like?
18 (Laughter.)
l 19 COMMISSIONER BRADFORD:
I think consistent with 20 Alan 's point -- I'm sorry, this goes back to Vic's but not 21 to the part we were talking about.
I guess I go back to the 22 original language on page 2.
I think it's enough to remind 23 the boards in the preceding paragraph a t the top of page 2.
24 CHAIRMAN HENDRIE:
"The boards should manage and 25 supervise."
ALDERSON REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
5 45 1
COMMISSIONER BRADFORD4 "Accordingly, the boards 2 should manage and supervise."
.3 CHAIRMAN HENDRIE Oh, okay.
Sold, with agreemen t 4 by all.
5 Other comments on the policy s t'a t em en t ?
Len, we 6 have a query.
The hand markups in the draft version in 7 202(c) are whose?
8 MR. BICKWIT:
Ours.
9 CHAIRMAN HENDRIE:
They are yours, reflecting 10 either edits on rereading or assistance, edits, or 11 wherever?
12 MR. BICKWIT:
They're just editorial.
13 CHAIRMAN HENDRIEa Get rid of the word " exists" l
14 indeed.
In my view any editorial change which removes the l
15 word " presently" as meaning now is to be desired.
If 16 civilization is to stagger forward another generation, we've 17 got to hold the line on some of these thing s.
18 MR. ROSENTHAL:
I notice that Commission Gilinsky l
19 did use " presently" to mean now.
1 20 CHAIRMAN HENDRIE:
Where, where?
21 MR. ROSENTHAL:
In the first sentence of the l
22 second paragraph.
23 MR. CCTTER:
I might note that the word 1
(
24 " presently," the meaning is Elizabethan and Shakespearian, l
25 and current dictionaries give it both --
i A1.DERSON REPORTING COMPANY,INC, t
s f4 6 1
MR. SHAPAR:
Fowler's modern English is not 2 accepted.
3 CHAIRMAN HENDRIE:
Make Vic's "now" obtained,
/
4.okay?
5 COMMISSIONER GILINSKY:
Okay.
6 CHAIRMAN HENDRIE:
For Alan and me.
7 Other?
Let me ask about 3A.
I believe the 3A 8 language is not changed f rom the last version.
9 MR. BICKWITs It is changed back to the original 10 SECY-202 with some edits.
11 CHAIRMAN HENDRIE I see, okay.
12 MR. BICKWIT:
I have to say, in reviewing the 13 tra nscrip t, we will have to see as to exactly what the 14 Commission consensus was.
So we went back to that.
15 CHAIRMAN HENDRIE:
Okay.
Since I don't have any 16 words that would do better than these --
17 COMMISSIONER BRADFORD:
Vic, didn ' t you propose --
18 where are we now?
Didn't you propose --
19 COMMISSIONER GILINSKY
- Well, 20 COMMISSIONER BRADFORD:
I thought we had at one 21 time agreed to --
22 MR. BICKWIT:
I have the papers, and Vic had a 23 dif ference.
24 COMMISSIONER GILINSKY:
Where is my version?
25 MR. BICKWIT.
Would you like to see your version?
l ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W WASHINGTON, D.C. 20024 (202) 554-2345
s 47 1
COMMISSIONER GILINSKY No, no.
This is another 2 point.
This has to do with the schedule.
3 CHAIRMAN HENDRIE I think that's it, isn't it?
4 COMMISSIONER GILINSKY:
Yeah, the first part.
5 MR. BICKWIT:
Oh, here it is.
6 COMMISSIONER GILINSKY Yeah, I thought this was 7 what we had approved.
8 CHAIRMAN HENDRIE:
Yeah, but that then meant 9 that was in the days when we were going to try to s tick a
- 10 schedule in here.
And what I think we are headed for at the 11 moment is not to put a schedule in here.
12 By the way, where does the schedule prospectively 13 hang, Len?
14 MR. BICKWIT:
Tony I gather is prepared te speak 15 to where the boards are in relaxing the schedule.
16 MR. COTIER:
We have an early dra f t.
17 CHAIRMAN HENDRIE:
I like your first sentence.
18 COMMISSIONER GILINSKY:
Which one?
19 MR. BICKWIT And Peter had another version of 20 this.
21 COMMISSIONER BRADFORDs Yeah, but I dropped'mine t
l 22 when we agreed to send Victor off to prepare another one, I 23 think.
24 MR. BICKWIT:
I did not understand the Commission
(
25 had reached agreement on Vic's.
l ALDERSoN REPORTING COMPANY. INC, EFLdQE1TdD /XiL&W_,JNMHINETON, D.CJ0024 (202D 554 2345
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1 COMMISSIONER BRADFORDs You may be right, now that 2 I see the part about the standa rd sched ule.
3 (Pause.)
4 COMMISSIONER GILINSKYa
-- and they've got the 5 last sentence here.
And you also need to specify 6 timeframes, and you just can't expect them to do all that.
7 CHAIRMAN HENDRIE In some ways you're amplifying 8 here.
You're saying time f rame for actions where the board 9 deems that that will expedite proceedings.
It's a little 10 bit of an amplification.
11 COMMISSIONER GILINSKY:
Well, you 're getting down 12 to more detail.
But it seems to me that we're treating 13 everyone like grown-ups.
I thought it was really captured
(
14 in a f airly firm statement.
15 CHAIRMAN HENDRIE:
I would like to keep some of
~16 that stuff in here.
17 COMMISSIONER GILINSKY:
Now this is a separate l
18 thing.
19 CHAIRMAN HENDRIE:
And I think it is a useful 20 o n e.
I would just come in here.
I would come in one place, 21 I think, to get this thought.
22 Let's see, shall we extend our negotiations and 23 see how the others feel?
Shall we let them in on what we 24 did ?
25 Okay, the proposition is as follows.
We start out ALDERSoN REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W, WASHINGTON. D.C. 20024 (202) $$4 2345
i s
49
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1 3A, " Time," with Vic's first sentence, to wit "The 2 Commission expects licensing boards to set and adhere to 3 reaso'nable schedules for proceedings."
We would then delete 4 the 202(c) first sentence, which starts, "The fundamental 5 ingredient."
Okay.
6 Now, Vic and I are disagreeing on whether to 7 delete the next sentence.
I would keep it.
He would delete 8 it.
And we would go on together concomitantly from there on 9 to the end.
10 COMMISSIONER BRADFORD:
I don't feel too strongly 11 about whether or not there's another sentence there.
I 12 don ' t think the point is that the boards should set time 13 f rames where they f eel that such delineations would -- or
(
14 only where they feel that they would expedite proceedings.
15 The end result if they're doing it right ought to be to 16 expedite proceedings.
17 But what you 're really talking about is giving a 18 better overall organization to the proceedings, putting 19 parties on notice of what's expected of them when, so that, 20 for example, they don' t surprise each other or unf airly 21 burden each other.
And then part of that also is that one 22 wants to expedite it.
23 The schedules have a larger goal, and if you say
(
24 you're only doing it to expedite then I don't think that's 25 quite the right thing to say.
ALDERSON REPCRT1NG COMPANY,INC, EFM%hR
s 50 1
COMMISSIONER AHEARNE:
I agree on that point.
2 CHAIRMAN HENDRIE:
I think this is mounting up to 3 it being easier to delete the sentence than to qualify it 4 suitably by these objections.
I'm beginning to regret I 5 started the whole thing with 3A.
6 Okay.
Vic's first sentence:
"The Commission
\\
7 expects licensing boards to set and adhere to reasonable 8 schedules for proceedings."
Then it goes on, starting 9 " concomitantly" and going on from there to the end of the to draft.
Okay, cut " concomitantly."
Start it with "The 11 hoards."
That got a round of a pplause.
12 Okay.
Now, do the owners of the drafting rights 13 on this document now understand where we are?
Do the k
14 Commissioners understand where we are?
Since the language 15 is settled, subject only to producing a clean copy and 16 som ebody proof reading it, which seems to me could be done 17 downstairs and so on, it seems to me that we ought to vote 18 it out.
It's been a long time coming and I don't think 19 we're going to perfect it any more by reading the clean copy.
20 Is that all right?
21 COMMISSIONER BRADFORD4 I think it is.
22 CHAIRMAN HENDRIEs' I therefore propose to you that 23 the policy statement as drafted and amended at this point in k
24 our discussion be issued by the Commission as soon as a 25 clean copy and a proofread copy can be produced bY the i
ALDERSoN REPORTING COMPANY,IreC, 6 C/XIMIMiT@N, @).@, RUF4 ((85A) fM8009
s S1 1 assorted offices in the secretariat.
2 Those in favor?
,e 3
CHAIRMAN HENDRIE:
Aye.
4 COMMISSIONER AHEARNE:
Aye.
5 COMMISSIONER GIIINSKY:
Aye.
6 COMMISSIONER BRADFORDa Aye.
7 CHAIRMAN HENDRIE Carried unanimously.
8 Well, I'm sorry we don't have a license to take.up 9 here today.
10 COMMISSIONER GIIINSKY:
That's this afternoon.
11 CHAIRMAN HENDRIE:
Well, I know.
But you'll have 12 had lunch and slowed down by that time.
I may not be able 13 to keep you to it.
(-
14 Now I don't propose to quit.
The other thing we f
l 15 had on the docket was this set of sua sponte propositions.
l 16 I think we ought to discuss those for a bit.
17 Let me remark about scheduling, where we are going
~
18 and wha t we are doing.
You remember last time we instructed 19 counsel to package together what we seem to have agreed on 20 out of the part two rule changes as acceptable for Appendix 21 B, which was coming separately, which we have done.
He was
~
22 also to package a proposed rule for comment with a possible 23 limit on interrogatories, some stuff about contentions, air 24 express filings, several things of that kind.
25 He has done that and we have the papers.
But they ALDERSON REPORTING COMPANY,INC, M VIRGINIA AML S.W WC9HINGToN. D.C. 20024 6202D 554 2345
52
/
1 are rather recently arrived.
It seems to me that those two 2 points of final rule and some changes to part two proposed
(
3 for comment rule and other changes to part two is a fitting 4 subject for a meeting unto itself, rather than the last 30 5 minutes of this morning.
And so I propose, if it's all 6 right with you, to hold those tMhos until our next meeting 7 on revised licensing procedures; also to go with that future 8-meeting then is discussion about standard schedule.
9 10 11 12 13
(
14 15 16 17 18 19 20 21 22 23 24 25 ALDERSON REPORTING COMPANY,INC,
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53 1
CHAIRMAN HENDRIEs Therefore, let us turn at this 2 moment to, if I can find it, an object called SECY 81-304,
(
3 proposed rule change on adjudicatory board's authority to 4 raise issues sua sponte.
We have had that since the end of 5 last week.
6 We also have today a collection from Tony Cotter 7 of the resumes of eminent American men of law, letters and 8 science.
9 HR. ROSENTHALs And women.
10 CHAIRMAN HENDRIEs And women.
I'm sorry.
11 And to the f ront of that he has attached the 12 latest entry in the ongoing efforts to set a record for most 13 recently submitted memorandum.
(
14 HR. DICKWITs Well, let me sa y, I think the reason 15 for that is, through inadvertence on our part we did not 16 coordinate this paper with Tony or with Alan, and Alan has 17 communicated to us his views.
And I knew that Tony's would 18 be more voluminous and I asked him to fu;nish them to the 19 Commission if he could.
20 MR. COTTER:
It's my constituency.
l 21 CHAIRMAN HENDRIE:
I guess my policy, Len, w6uld
~
22 normally be, either inform them in a lot of time or keep 23 them totally in the dark.
But these halfway measures only 24 lead to confusion.
I have no objection, which of the first 25 two you follow.
Just consistency, that's all.
ALDERSoN REPORTING COMPANY,INC,
54 1
Okay.
Now the proposition.
Len, why don't you 2 outline the proposition in 304.
We will have such 3 countercommentary as people would like to offer briefly 4 along the Commission table.
5 HR. BICKWITs What we are trying to do here is 6 pick up the drift of the discussion tha t the Commissioners 7 had on this subject.
And while in reviewing the transcript 8 it was clear that there was no specific agreement, this at 9 least was not objected to by Commissioners who talked about 10 the concept.
11 Under it, as you can see, the board before taking 12 up an issue sua sponte in an operating license proceeding 13 we would propose to expand that to CP and OL amendment
(
14 proceedings -- would have to no tif y the Commission and the 15 Commissioners would have 15 days in which to take some 16 action to prevent the boards from implementing their 17 int ent.
18 And Alan has pointed out that throughout this 19 proposed rule the words " certified an issue to the 20 Commission" are used and that that could be confusing in 21 that it could give the impression, one, that it's the 22 substantive issue that's being certified, and secondly, that
(
23 some action on the part of the Commission is required.
Both 24 o f those notions could be inferred from the word f
25 " certification."
l ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTCN, D.C. 20024 (202) 554 2345
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So he suggests " notification" as an alternative t
i 2 and we would support that.
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3 4
5 6
7 i
8 9
10 l
11 12 I
13 14 15 16 17 18 19 20 21 22 23 24 25 ALDERSON REPORTING COMPANY,INC.
56 1
COMMISSIONER BRADFORD:
Am I wrong in thinking we
{'
2 discussed this last time and decided to go to comment with 3 it?
4 COMMISSIONER AHEARNE:
That is what I thought.
5 MR. BICKWIT:
That is not what I thought.
6 (Laughter.)
7 COMMISSIONER AHEARNE:
So much for that.
8 MR. RICKWITs I may be wrong.
What I thought was 9 tha t we would send up to you this kind of paper because we 10 were unsure where the Commission was on the concept.
Our 11 recommendation was that you go out for comment without more 12 but 13 CHAIRMAN HENDRIE:
I think Len has got it right.
(
14 Ny notes f rom the last meeting, Peter, is that Len was to 15 get his new sua sponte rule proposal to the Commission, then I
16 we were to decide whether it should go out for comme.t and, 17 if so, should it go out for those other Part 2 things or 18 wha tever.
So I think he has got it.
19 COMMISSIONER AHEARNE:
Well, except that what 20 would come up is that if the Commission were to go out for l
21 comment independent of the past mee ting, certainly sven a 22 strong supporter of change as I would want to have it out 23 for comment.
24 COMMISSIONER BRADFORD:
Were you a strong 25 supporter of this change?
I thought this was the one that ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W.. WASHINGTON. D.C. 20024 (202) 554 2345
57
('
1 Victor.end I initially supported and you and Joe opposed.
2 CHAIRMAN AHEARNE4 No.
Eliminating it.
In other 3 words, be more restrictive on it.
I would certainly want 4 consent on it.
5 CHAIRMAN HENDRIEs Well, let's see.
The 6 proposition is to put it out f or comment.
7 COMMISSIONER BRADFORDs The proposition here is to 8 make it immediately ef fective, isn't it?
9 MR. BICKWITs I don't think so.
A register notice 10 announcing an immediately effective rule change.
Of course, 11 the recommendation is that we use it as a basis for further 12 discussion.
13 COMMISSIONER AHEARNE:
That is what I meants for 14 comment.
15 CHAIRMAN HENDRIEs We are talking about a proposed 16 rtile for comment.
17 COMMISSIONER AHEARNE:
Right.
18 CHAIRMAN HENDRIE:
I do not think we can 19 contemplate going out and -- now, Tony, you need a chance to l
20 express your general admiration of the general counsel's 21 propositions here. ~
22 COMMISSIONER AHEARNE:
At some point before we 23 break, I would like to ask a question.
24 CHAIRMAN HENDRIE:
Would you rather hear Tony or --
25 COMMISSIONER AHEARNE:
I an always glad to hear ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHING ton, D.C. 20024(202) 554 2345
58 f~'
1 Tony.
2 CHAIRMAN HENDRIE:
I mean first or --
3 COMNISSIONER AHEARNE:
Fine.
4 CHAIRMAN HENDRIE:
Go.
5 MR. COTTEB I object.
6 CHAIRMAN HENDRIE:
Sustained.
That gets the point 7 across.
If only we could do it as well.
8 MR. COTTER:
When there is no problem with sua 9 sponte, I think it has been reasonably well established.
It 10 has not taken too much time.
The director of NRR says it is 11 not a problem.
This is a major effort to address a 12 nonexistent thing.
In the course of doing that, we feel 13 that it raises a number of problems.
I fundamentally have 14 still not adjusted to the manner in which the board's 15 f unction in this agency -- it is much more limited and quite 16 contrary to my experience.
17 But I do understand them to serve the purpose of, 18 after mandatory reviews of construction permit proceedings, 1
19 holding hearings on operating licenses and their amendments 20 in those cases when an Intervenor has raised an issue in 21 controversy which is feasible under the proceedings that we l
22 hold.
23 Ihe difficulty that I have theoretically is the 24 adjudicatory system functions here within the Commission is 25 that the original decision is made on a preliminary piece of N.DERSON REPORTING COMPANY. INC.
400 VIRGINIA AVE, S.W., WASHINGTON D.C. 20024 (202) 534-2345
59
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1 paper -- that is,.the construction permit design -- and that 2 the actual construction of the plar:t is 'not completed on the
('
3 average until, what, five or six years later.
4 We have certainly seen in the last 18 months to 5 two years that a number of developments in the technology of 6 the construction can take place which would require 7 differences in the plant which is constructed and make it to 8 some degree or other different from the pla nt which was 9 designed.
10 Secondly, it has been my experience in the 11 construction business in general for the last 30-odd years 12 that nothing is ever built as it is designed, and it is
(..
13 dif f erent significantly f rom the way it is designed simply
~'
14 because when the practical people come to convert the paper 15 into concrete and the components of the structure, they make 16 changes.
17 And consequently, it seems to me that given that 18 significant gap between what is originally proposed and wha t 19 is actually constructed, that a limitation on the authority 20 of those people who are to apply their expertise to evaluate 21 th'e adequacy of the staff review of the construction, that 22 that limitation is completely contrary to the mission of the 23 Commission.
24 Now, as I underctand the proposal, the purpose of 25 it is to eliminate delay.
I have not seen any evidence ALDER $oN REPORTING COMPANY,INC, nqu]IdrmG /JIL RW.WMHINEToNa D.C. 20024 (2021 554 2345
60 1 anywhere on the table in the last four months that it has 2 caused delay.
3 CHAIRMAN H!.iDRIEs But it is also a matter of 4 staff resources.
5 MR. COTTER:
The staff has said it is not a 6 problem.
The director stood un there about three months ago I
7 and said that.
8 MR. SHAPAR That was in response to a specific 9 question.
I do not think it is fair to say it is the view 10 of the NRR that it is not a problem.
11 CHAIRMAN HENDRIE:
I think Dircks and Denton both 12 m ad e --
l 13 MR. COTTER:
Well, if they think it is a problem --
14 CHAIRMAN HENDRIEs Well, they think it could be a 15 problem.
16 COMMISSIONER AHEARNE:
As a person who raised the 17 issue earlier, it das not, as I tried to say in the past, 18 because of potential problems ith staff resourcer, it is my 19 conccpt of what is the purpose of the hearing process.
20 And the one point I r/: ally disagree with you,
~
21 Tony, is that one could conclude from the way you phrased 22 that answer that the only plants then that we should have 23 confidence in being safely reviewed are those that go into l
(
24 the contested hearing and a board gets a crack at reviewing 25 it.
If it were not a contested hearing, therefore, there
(
ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W. WASHINGTON. 0.C.-20024 (202) 554-2345
61 1 would be no hearing, that we had to be very uneasy about 2 it.
3 I just disagree that that is the purpose of the 4 operating license hearings.
And that is why I an in favor 5 of this kind of restriction, because I believe that 6 fundamentally the hearing is supposed to resolve issues in 7 disagreement.
8 And I can see the advantage of the proposal that 9 ve have in this proposed rule, because it then does meet one 10 of the objections that has been raised by a number of 11 people, including yourself in this paper, of what happens if 12 there is t serious issue that someone sees.
Well, then, 13 this would prcvide a mec!;anism to handle it.
(
14 '
MR. COTTER:
I think there are two responses to 15 tha t.
One was, as I understand the history of the concept, 16 the original mandatory review for en operating license was 17 lif ted in 1962 on the theory that the construction permit 18 review had been thorough and that the operating license 19 would follow soon after.
And those two facts do not obtain 20 n ow, because of the length of time between issuance of the
~
21 construction permit license and the review for the operating 22 license.
23 So while I am not obviously arguing contrary to 24 the statute, I am saying that the rationale for the statute c
25 has not proved too valid.
ALDERScN REPORTING CoMFANY,INC, 400, VIRGINIA AVE S.W., WASHINGTON, D.C. 20024 gC2) 554 2345
62 1
MR. SHAPAR:
I do not believe tha t was the premise
(
2 for the '62 statute.
The premise for that statute was a 3 multiplicity of hearings in which the Congress felt at one 4 time it was necessary.
And this is sort of important in 5 terms of understanding what tne role of the board is.
6 At one time there was indeed a mandatory hearing 7 at both.the CP stage and a mandatory hearin,g at the OL 8 stage.
And in addition, the statute was interpreted in such 9 a way that it vss considered necessary to have a mandatory 10 hearing for all amendments as well.
11 This got to be too much, and gene rally there is a 12 f orm that says, "All these hearings were not necessary to 13 pro tect the public health and safety."
So about in 1962
(-
14 this mandatory hearing requirement at all stages was 15 dissolved a nd the basic thrust behind it was you did not 16 need tha t many hearings to protect the public health and 17 saf ety.
18 As I indicated, it retained the mandatory hearing 19 a t the CP stage.
They abolished any requirement whatevet 20 for hearing at OL stage unless an interested party requested l
l 21 a hearing.
And there was also an opportunity for hearing on 22 the amendments.
But the only mand & tory hearing was lef t at 23 the CP stage.
And I thit.k that was the basic thrust of th e 24 '62 amendments.
25 MR. CCTTER:
Certainly, some of the instances in ALCERSON REPORTING COMPANY,INC, 400 VIRGINtA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
63
("
1 the intervening years, Three Mile Island being an obvious 2 one, suggast that that original consideration was not 3 correct.
4 COMMISSIONER GILINSKY :
Would your objections 5 hold if the 15-day provision disappeared and was merely a 0 satter of notifying the Commission that "The board is taking 7 up the following issue"?
8 In fact, let me ask you, what is the practice of 9 the hoards when you launch on a new issue?
Do you issue 10 some piece of paper notifying the parties?
11 MR. COTTER:
Yes.
The board would notify the 12 parties that have a particular question, yes.
13 COMMISSIONER GILINSKY Why can that not be sent
('
14 up to the Commissioners?
15 MR. COTTER:
I have no objection to doing that.
16 It is a public document.
I mean, in a sense, it is sent up l
17 to the Commission, because all those papers and all the l
18 cases are filed here.
l I
19 COMMISSIGNER GILINSKY Well, that could serve to 20 notify the Comnission with the general counsel being alert 21 to these pieces of paper.
~
22 MR. COTI2R:
In that sense, that takes place now.
23 COMMISSIONER GILINSKY:
So someplace between 24 that, in which you seen to have no objection to in the 25 proposal here which introduces a 15-day period, you cross ALDERSON REPORTING COMPANY,INC, c?O VIRGINIA AVE., S.W WASHINGTON, D C. 20024 (202) 554-2345
64 1 some' sort of threshold.
2 HR. COTT ER :
I cross two thresholds.
One, I think 3 it is inappropriate to restr?.ct the presiding officer.
4 COMMISSIONER GILINSKY Well, it is the 15-day 5 period then, because the notification is something that you 6 apparently do not --
7 HR. COTTER:
No, it is the restriction, whether it 8 is 15 days or 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> or whatever it is.
It is a 9 restriction on the presiding officer in his hearing 10 authori'ty to conduct the proceeding and do the business.
11 COMMISSIONER GILINSKY Where is the restriction?
12 We can always do that right now.
13 MR. COTTER:
As a practical matter you can, and as
(
14 a practical matter that is why this will not work.
You i
15 cannot do that either.
16 COMMISSIONER GILINSKY Why not?
Why can we not 17 do it?
18 MR. COTTER:
It is impracticable.
19 COMMISSIONER BRADFORD:
Well, we could.
We do 20 n o t.
21 COMMISSIONER GILINSKY:
Well, we have not.
But we 22 ce'rtainly can af ter the f act say that we think the following 23 issues need to be considered; and we could, if that policy 24 is not followed, reach down and say we do not think that 25 MR. COTTER:
I am not questioning your authority ALDERSON REPORTING COMPANY,INC, i
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024_(202[554 2345_
65 1 to do that a t all.
Certainly you can do that.
2 What I am saying is, as a matter of running an 3 administrative law or adjudicatory proceeding, it is
(-
4 contrary to logie and common-sense to reach into different 5 parts or pieces of it and say, "We are going to reach into 6 this piece and we are not going to reach into that piece and 7 ve are going to rer rict it here and not restrict it there."
8 COMMISSIONER GILINSKY:
It is not matter of 9 degree.
If you did it all the time, obviously, the system 10 would break down.
You cannot delegate the authority to 11 people and expect them to run errands and --
i l
12 MR. COTTER:
I have great faith in the " thin edge l
13 of the wedge" concept.
I just think it is repugnant to me l
14 to appoint a hearing officer and to give him a general 15 delegation of authority, as you have done, and to set up his 16 jurisdiction, and then to start interfering in individual 17 cases at individual places.
18 CH AIRMAN HENDRIE:
But it is less that proposed 19 here than a consideration of that basic grant of 20 jurisdiction.
21 MR. COTTER 4 I have no trouble with the basic 22 grant of jurisdiction.
But you are talking about reaching 23 into individual cases and individual issues.
24 CHAIRMAN HENDRIE:
Well, a proposal which has been 25 discussed is simply to delete sua sponte powers in the ALDERSON REPORTING CoHPANY. INC.
400 VIRGINIA AVE S.W WASHINGTON D.C. 20024 (202) 554-234:
66 T'
1 boards at the operating license stage to determine matters 2 put in controversy by the parties.
3 MR. COTTER:
As they say in that case, call balls 4 and strikes.
I think you are wasting an awful lot of talent S here if that is what you want.
You should just have a clerk 6 do thit.
7 COMMISSIONER AHEARNE:
Tony, are you saying that a 8 resolution of the issues put in disput> by the parties are 9 so easy that the resolution is trivial, that you do not need 10 the board to resolve it?
11 MR. COTTER 4 No, I am not saying th a t.
I am 12 saying that if you are ocing to tie the hands of the people 13 conducting these hearings that way by restricting what is a 14 normal inherent authority of the hearing officer, then you 15 are turnin7 the proceeding into some thing else.
16 COMMISSIONER AHEARNE:
Well, but when you say the 17 " normal l'nherent authority," to start with, there are 18 already constraints, and those are the constraints that are 19 established by, if we make a --
20 MR. COTIER:
It is limited jurisdiction.
21 COMMISSIONER AHEARNE:
If we make a generic rule 22 and there are some things that are automatically out of the 23 purview of the hearing officer.
24 MR. COTTER :
That is right.
25 COMMISSIONER AHEARNE:
And the isrue here is an ALDERSoN REPORTING COMPANY. INC.
400 VIRGINIA AVE S.W WASHINGTON. D.C. 20024 (202) 554-2345
67 1 additional level of restriction in an operating license
-s 2 case.
3 MR. COTTER:
There is a difference between
(
4 restriction and jurisdiction.
Jurisdiction says, "This is 5 the territory over which you have authority."
And the 6 passing of a generic rule is the definition of that 7 territory.
The requirement that a hearing officer certify a 8 question of judgment on an issue in a case up to the 9 Commission, that is a restriction.
10 COMMISSIONER AHEARNE:
Well, except that the 11 question is not how does the hearing officer judge the issue 12 in contention; it is should there be other issues in I
t 13 contention.
(
14 MR. COTTER:
All right, I will accept that.
i l
15 HR. BICKWIT:
In the words of that case, the 16 boards would not be asked to simply call bal's and strikes 17 with respect to the issues in contention; they would be 18 ado pting the normal administrative practice rule.
19 MR. COTTER:
That is correct.
20 COMMISSIONER AHEARNE:
May I ask Len a couple of l
21 questions?
l 22 CHAIRMAN HENDRIE Pray do.
23 COMMISSIONER AHEARNE:
Len, first you restricted 24 it to operating license proceedings as opposed to operating 1
25 license and, say, amendment.
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
68
~
1 MR. BICKWITa No.
We have drafted it that way, i
2 but in the cover memo we proposed, as does OELD, that it be 3 expanded.
(
4 CCHNISSION ER AHEARNEs Okay.
I did not catch 5 chat.
You have also on page 4, you have now expanded to 6 also cover the appeal board.
And you say that in a 7 proceeding where, let's say, the appeal board determines 8 that a matter existed has not been raised by the parties, do 9 you mean raised by the parties at any stage in the earlier 10 proceeding, specifically raised by the parties --
11 HR. BICKWITs The first.
12 COMMISSIONER AHEARNE:
Well, I understand that, 13 but I just wanted to make sure I understood that that is 14 what was meant here.
15 Now, when you have certification and as a result 16 of Alan's suggestion, you would change it to notification, 17 vill tha t 15 days from the date of the notification, that 18 would be the clock would start on the day the Commission, l
19 either SECY or OGC, whoever receives it, notifies.
Is that 20 correct?
l 21 MR. BICKWIT:
Yes.
22 COMMISSIONER AHEARNE So if the notification were 23 b y the rapid interagency mail service, that could be four or
(
24 five days?
25 3R. BICKWIT:
That is correct.
ALDERSoN REPORTING COMPANY,INC.
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69 1
MR. ROSENTHAL:
You might send it via Toledo and 2 make sure the 15 days were consumed.
3 MR. BICKWITa It would be 15 plus five.
You would 4 use the portion of the rules that says --
5 COMMISSIONER AHEARNE:
But this is notification, 6 and I assume notification is a receipt.
7 MR. BICKWITs No, that was not intended.
It was 8 intended that the normal practice would apply.
You file 9 your notification, 15 plus 5 days later, the Commission has 10 to act.
11 MR. ROSENTHAL:
What is the five days for?
To be 12 served by mail?
13 MR. BICKWITs res.
It seems to me the rule that 14 extended by five days, all of these requirements on i
t P
Lpients of pieces of paper --
i MR. ROSENTHAL:
Well, that's served by the United to i
17 Sta tes Mail.
I can get it in Mr. Fitzgerald's hands by 18 Rapidf ax within five minutes.
There should not be any five 19 days at all.
I have some problems.
I think 15 days ought 20 to mean 15 days from the time that the general counsel's 21 office actually has the notification in hand.
22 COMMISSIONER AHEARNE:
I have to agree.
23 MR. ROSENTHAL:
I do not see any reason for 24 putting in a five-day mailing period.
25 MR. BICKWITs I am just telling you what the i
ALDERSoN REPCRTING COMPANY. INC.
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.o 70 1 intent was.
g 2
COMMISSIONER AHEARNE:
I would agree.
It is 15 3 days from receipt of that -vtification, and that 4 notification could be done very rapidly.
In some cases, it 5 has taken a long time to get a notification.
6 MR. BICKWIT:
That is not what it says, and it 7 could be modified.
8 COMMISSIONER GILINSKY:
Why do you need the 15-day 9 period at all?
10 COMMISSIONER AHEARNE:
Well, let me ask the other 11 question.
I guess I would prefer the 15 days to be tied to 12 say that the "15 days without action by the Commission."
13 And the reason I would like to put it that way is that 15 14 days -- I imagine when the 'ssue comes, that we will ask OGC f
(
15 to take a look at that issue, and if it is a complex issue 16 it may take a little while to get that result.
And then the 17 Commission may wish to say, "This is a complex issue.
We 18 would like the board to hold on that until we resolve it.'
l 19 MR. BICKWIT:
Well, that is contemplated that the 1
20 Commission can step in within that 15-day period and stop 2
either temporarily or permanently th e act.Lon of the boards.
22 COMMISSIONER AHEARNE:
So your statement "the l
23 Commission directed not to consider" includes "not to 24 consider a t the moment" as well as "never"?
25 MR. BICKWIT:
That is right.
That was the intent.
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COMMISSIONER AHEARNE Oh, I see.
2 Okay, then the last question would be for Tony.
(
3 Tony, in your paper that you sent up this morning, you say 4 that it could delay the process for requiring 15 days' delay 5 when a party is urged that the board examination on admitted 6 contention is actually a sua sponte question?
7 MR. COTTER:
Normally, during the course of a 8 hearing, the members of the board will have questions on any 9 given contention.
10 COMMISSIONER AHEARNEs Right.
11 HR. COTTER :
And if I were a party and did not 12 van t the issue to proceed, it certainly would always be open 13 to me to say that the questioning has gone beyond the
(
14 confines of the issue and that consequently it is a new 15 question and that the board does not have the authority to 16 proceed.
17 MR. ROSENTHAL:
I think that is a substantial 18 pro blem.
I think if you go this route, you have got to be 19 very clear in defining what is in fact a new issue as 20 opposed to a board pursuing an existing issue, because Mr.
~
Shapar and I have had disagreements over whether a 21 22 particular appeal board inquiry represented an exercise of 23 the sua sponte authority or was rather simply a pursuit of 24 an issue that was already in contention, carrying that issue 25 a little bit beyond the narrow confines of the contention ALDERSoN REPORTING COMPANY,INC,
72 1 itself.
2 (Commissioner Bradford leaves meeting at 11:55.)
3 Ar.d if in fact a board strayed at all from th e 4 confines of that contention represents exercise of sua 5 sponte authority subject to 15 days and all of this, there 6 is an enormoun portent for delay.
7 HR. SHAPAR:
Of course, there is a portent,for 8 delay if the board takes a week to have a hearing on a sua 9 sponte issue that the Commission does not think needs to be 10 addressed at all.
11 COMMISSIONER AHEARNE:
I think the point that 12 Len, could you respond to that?
13 MR. BICKWIT:
I am not sure I grasped the issue.
(
14 COMMISSIONER AHEARNE:
The point I believe both of 15 them are saying is that in a hearing, let us say, we have to this rule in pla s and in a hearing a board member starts i
17 asking some questions.
One of the parties says, "No, wait, 18 that is beyond the f ramework of the contentions.
You a re I
19 now going into sua sponte, and you have to" 20 MR. PICKWITs The board will have to be the judge 21 of that in the first instance.
We have that problem under 22 the existing rule.
l 23 (Commissioner Bradford returns to reeting at 24 11:57.)
s l
25 COMMISSIONEB AHEARNE.
You do say it is up to the l
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W WASHINGTON. D.C. 20024 (202) 554-234S
73 i
1 board to make that determination?
1 MR. BICKWITs It is up to the board to make it,
{
3 and under the existing rule the Commission can step in and 4 say, "You are making it correctly," if it were monitoring 5 the case.
6 MR. SHAPAR:
And the parties really have no 7 recourse, because they can object, but the board overrules 8 them.
9 MR. ROSENTHAL:
They can certainly request a 10 recess, and if they are overruled they can apply to the 11 Commission.
12 MR. SHAPAR:
They can request it and it can be 13 denied.
(
14 MR. COTTER:
But they can apply to the Commission 15 and the Commission can make up its mind.
16 COMMISSIONER GILINSKY:
Does the board now find an 17 issue is sua sponte?
18 3R, 30SENTHAL:
The example that I had in mind a 19 f ew minut?s ago was in the Diablo security plan proceeding, 20 where the board which had the adequacy of the security plan 21 before it looked at the plan and one or two aspects of the 22 plan they were concerned with that had not been specifically 23 f ocused upon by the Intervenor, who, insofar as that board 24 was concerned, they were not exercising their sua sponte 25 authority.
They had a question of the adequacy of the plan ALDERSoN REPORTING COMPANY. INC,
74 1 before it.
And this was just one or two little additional 2 details.
3
.On the other hand, when the executive legal 4 director put its paper up a month'or two ago, this was 5 treated as having been an exercise by the board of a sua 6 sponte authority.
7 Now, what the appeal boar,ds do, at least, is if 8 the board thinks that this is an exercise of sua sponte 9 authority, it will so indicte but --
10 HR. SHAPAR:
That is not the case invaria'bly with 11 the hearing boards.
In fact, on occasion there are 12 objections by parties saying that the board'in effect is 13 exercising its sua sponte authority but it has not made a
(
14 finding that it is a serious issue.
15 Even with the recent change in the Commission 16 cules, the requirement is that only serious issues affecting 17 public health and safety.
And a board on occasion has not I
18 made that finding and has been asked to by a party.
So it 19 is not always the case that the hearing boards identify that 20 they are indeed raising a sua sponte issue.
21 MR. COTTER:
In a recent spent-fuel pool expansion l
22 -- I have f orgotten the name of the ca se -- it was the first 23 instance of double racking, and the physicist-engineer, a
{
24 member of the board asked a considerable number of questions i
25 because he did not feel the staff had thought through, nor I
ALDERSoN REPORTING COMPANY,INC, L-
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75 1 had the Applicant, the details and the ramifications of this 2 new storaga configuration.
3 COMMISSIONER GILINSKYs But did he then identify 4 that as 5
HR. COTTER:
He thought they were all within the 6 realm of the issues that were presented.
7 COMMISSIONER GILINSKY Well, then it is not sua 8 sponte.
9 3R. COTTERa That is a good question.
1 10 (Laughter.)
11 HR. ROSENTHAL:
The point I was making before is I 12 think there has got to be some clarification.
I do not 13 think it is enough, as I think I heard Len suggest, that it
(
14 is up to the board to decide whether it is or is not within 15 the confines of the present case, or as a sua sponte 16 exploration.
I would agree, in the final analysis, it is 17 for the boards to decide this.
18 But I think there has to be some generic guidance l
19 on this, because what the quer' ion really comes down to is 20 whether sua sponte authority is being exercised only where a 21 board is raising an issue that is quite discrete from the l
22 issues that have been put into controv$rsy as opposed to the 23 other theory that the board is to be considered as raising
! (.
24 an issue sua sponte if, even though it is dealing with 25 precisely the subject matter presented by contention, it i
ALDERSON R.PCRTING COMPANY,INC, 400 VIRGIN!A AVE., S.W., WASHINGTON. 0.C. 20024 (202) 554 2345
.76 i
1 goes beyond the four corners of that contention.
2 I would like to see the Commission, if it going to 3 impose some kind of requirement, that there be notification 4 to it, lay down some guidelines so that the board is 5 comfortable about whether in the particular instance it is 6 or is not under an obligation to provide the notificati'on.
7 HR. SHAPAR:
I do not think it is practical to 8 give that kind of guidance.
I think the point is if it has 9 been raised by a party -- it has not been raised by a party 10 as sua sponte and it is not going to be possible to say 11 where the interface is between expanding a contention and 12 raising a new contention.
13 As a matter of fact, if it is considerable and
(
14 legitimate concern, you might ask for comment on this 15 specific point in the notice of proposed rolemaking.
16 COMMISSIONER GILINSKY:
If you cannot draw that 17 distinction, then what are we talking aboutT 18 HR. SHAPAR:
We are talking about clearly where 19 the matter is not a contention.
If you want an example made 20 out of thin air, one I have used before, if the contention 21 in the case is shipworms in Barnegat Fay and the hearing 22 board wants to bring up a Class 9 accident, that is clearly l
23 a sua sponte issue.
(
24 MR. ROSENTHAL Nobody would disagree with that.
L 25 But that class of cases I was raising falls on a --
1 ALDERSoN REPORTING COMPANY,INC, L
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1
O 77 1
MR. SHAPARs I think you will find those areas to 2 be rather rare.
And what I think you are doing is taking 3 these rare disagreements and saying it is difficult in the 4 ordinary case to tell wha? is indeed a sua sponte issue.
I 5 think history tells us that is not true.
In most cases 6 where we have identified sua sponte issues, there has not 7 been any disagreement about the fact they were sua sponte 8 issues.
9 MR. COTTER:
Yes, because the board identified l
10 them as such.
That is not hard.
11 MR. 3HAPAR:
Not necessarily.
12 COMMISSIONER GILINSKY When you ur upon a new 13 area that was not raised by one of the parties, you issue k
14 some sort of order or statement?
l 18 MR. COTTERS Identifying it as a board question.
16 MR. SHAPAR:
That is not always the case, no.
17 COMMISSIONER GILINSKYa-Will that be uniform 18 practice from now on?
l 19 MR. COTTER:
It always has been.
20 MR. SHAPARs No.
21 MR. COTIER:
One of the advocates takes a 22 dif ferent view.
23 MR. SHAPAR:
You can go back and track the record.
(
24 COMMISSIONER GILINSKY It sounds like there is no 25 objection to that being uniform practice.
ALCERSON REPORTING COMPANY,INC, 400 vtRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
78 1
XR. SHAPAR:
That is fine.
It ought to be uniform 2 practice.
3 MR. BICKFIT It sounds like the rule would
[
4 virtually require that it be uniform practice, because,you 5 have got to make a determination.
I read that to mean you 6 have got to --
7 COMMISSIONER GILINSKY:
He is doing that now and 8 that piece of paper comes to your office; right?
That seems 9 to me to constitute notification of the Commission, so long 10 as your office is monitoring the proceedings.
11 Now, how much time elapses from the time you issue 12 such a -- what is it -- a statement, an order, a question?
13 MR. COTTEH It would be an order identifying
(
1 14 board questions.
15 COMMISSIONER GILINSKY:
-- until the wheels start 16 turning.
Or do they start turning immediately in terms of 17 effort being expended on the part of parties, the board, on 18 tha t partirular issue?
19 MR. COITER:
The wheels would effectively start 20 turning immediately.
21 COMMISSICNER GILINSKY And do these things tend 22 t o -- I am sure they vary -- but typirally, issues that get 23 dealt with over "a short period of time, a long period of 24 time, are we talking about days, weeks, months?
25 MR. COTIER:
Some of them will run the length of l
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9 79 l
1 the proceeding.
Others will be resolved, because the 2 Applicants will be responsive to the probles which has been
(
3 identified, and it will not go all the way through the 4 hearing process.
5 CONHISSIONER GILINSKY:
I guess what I am getting 6 to is I wonder whether the practice of simply notifying 7 having these pieces of paper go to the general counsel's 8 office and the general counsel monitoring the proceedings 9 does not satisfy what is, you know, the object of the 10 proposed rule.
11 HR. COTTER:
I think it probably would.
12 COMMISSIONER GILINSKYs If the Commission wants to 13 act, it can act.
And it can certainly act after the fact in
\\
14 decisions on appeal.
And it can certainly reach into 15 proceedings if it feels that it has been exceeded by some 16 unreasonable margin.
17 COMMISSIONER AHEARNE:
At least in my view that 18 would not meet the 19 COMMISSIONER GILINSKY What is it that is 20 achieved by this 15-day business?
21 COMMISSIONER AHEARNE:
Well, if it is 15 days in 22 which the Commission takes some action, then what is 23 achieved is to reiterate that the fundamental purpose of the 24 operating license hearing is to resolve issues in dispute 25 and that going beyond issues in dispute is an extraordinary ALDERSON REPORTING COMPANY,INC,
80 1 occurrence.
2 COMMISSIONER GILINSKY Well, do you tnink that 3 less issues will be dealt with in this way?
Is that the
\\
4 idea?
Do you think this will be a hurdle?
5 COMMISSIONER AHEARNE:
As I have tried to say many 6 times, I c.m trying to construct, at least for myself, a 7 framework of what the hearing process should be.
And in my 8 mind, the operating license hearing should >= a resolution 9 of issues raised in dispute by the parties.
And that is why 10 you even have the hearing.
11 And so, going beyond -- and I will grant Tony's 12 argument that there are a lot of very competent people on 13 the boards, and so if they see something that the staff or 14 ACRS has missed, that there then should be an opportunity 15 for them to address that.
But since that, to me, is a 16 separate step in what the hearing process is, then I see it 17 as needing some formal mechanism for an additional 18 delegation of authority, and that additional delegation of 19 authority is accomplished by this proposed rule.
20 COMMISSIONER GILINSKY:
You are just saying it is l
21 closer to --
l 22 COMMISSIONER AHEARNE:
Pardon me?
23 COMMISSIONER GILINSKY.
Well, the delegation of
(
24 authority is in the Commission's rules, and presumably the I
25 same standards would be applied either way, and you would be ALDERSON REPORTING COMPANY. INC.
400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
81 I
1 notified.
And the only dif ference is that on some issues, 2 if you objected, you could not catch it to nip it in the
('
3 bud.
4 COMMISSIONER AHEARNEa Nos the fundamental 5 difference, Vic, is what is the approach that all 6 participants, including the board, take when they go to the 7 operating licenses Is it another level of an independent 8 technical review, or is it a process to resolve issues 9 raised in dispute by the parties?
10 I see the trend going towards the former.
I ~ am 11 reaching the conclusion tha t it ought to be the latter.
12 MR. COTTER:
I understood the purpose of it was --
13 COMMISSIONER GILINSKYs If you want to change the
(
14 Commission's rules on sua sponte altogether, I understand 15 that.
But here we are just talking about the Commission 16 having -- being notified so that if it wants to reach down 17 it can reach down.
I 18 What I am saying is that the present process, if 19 carried out with i little more alertness, will give you the 20 same notification that the proposed rule gives you.
21 COMMISSIONER AHEARNE:
It might give the same 22 notification.
It would not have the same philosophical 23 impact.
24 COMMISSIONER GILINSKY :
It will not inhibit the 25 boards as much, or what?
I am not sure it would not cut the l
ALDERSoN REPORTING COMPANY. INC,
82 1 other way.
2 COMMISSIONER AHEARNE:
It is a pejorative word 3 that implies a real negative.
I am trying to reiterete the
(
4 point that I see the purpose of the operating license 5 hearing to be a resolution of hearings of dispute.
And if 6 you expand beyond that purpose, then that ought to be a more 7 formal step.
8 ER. COTTER:
The adequacy of the staff's review?
9 CHAIRMAN HENDRIE:
No.
In fact, before 1975 the 10 OL hearings were pre *cisely as John would --
11 MR. COTTER:
I am not talking about the findings.
12 I am talking about the adequacy of the review.
13 HR. SHAPAR:
That is initially in the uncontested k
14 case at the CP stage, as I recall the rules.
15 CHAIRMAN HENDRIE:
And the operating license stage 16 you only have a hearing if your parties want one.
And in 17 order for the parties to stay and put contentions on the 18 table and get them accepted and up until, what, 1975, those 19 were the only items that could be talked about in operating 20 license hearings.
21 The boards did not rule on the adequacy of the 22 staff 's review, because in most cases -- in fact, in all 23 cases -- there were very la rge portions of the staff reviev 24 which ever came bef ore the board, because they were not part 25 of the argument over a contention.
ALDERSON REPORTING COMPANY INC.
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83 1
At the present time, a very large part of the 2 staff review at the operating license stage does not come
(
3 before the boards.
But if the boards think it is their 4 mission to expand the scope of the OL hearing and in fact do 5 a de novo review or at least an oversight review in the way 6 they do at the construction permit stage, then that is a 7 totally different concept of the hearing at the operating 8 license stage.
9 Between us, I think, the regulations are on my 10 side and John's.
11 HR. COTTER:
The boards do not think they could do 12 tha t, because there is no way they could conduct that kind 13 of review.
14 CHAIRMAN HENDRIE:
That is one of the practical "5 rea sons tha t they are not invited to in the regulations.
16 Okay.
You know, what we are arguing about is whether the 17 boards should have the authority to pick up an issue on 10 their own at the 3L stage or what sort of limitations on 19 that 7.uthority which they now have might want to be 20 imposed.
21 But I do not think that any of us here are 22 suggesting that it is the function of boards in operating 23 license hearings to determine the adequacy of the staff 24 review of the application for an operating license.
That is 25 not the way the regulations read.
That has not been the ALDERSON REPORTING COMPANY,INC,
84 1 practice.
2 And, you know, one of the things that gives me 3 concern is that I suspect in fact there are board members 1
4 out there who think that either is their mission or ought to 5 be their mission and are moving in that direction.
And that 6 is one of the reasons I am on the side of trying to prevent-7 some limitation of sua sponte power, lest it be turned, in 8 fact,'into a general movement of board practice in that 9 direction.
10 T.here is a substantial difference between the 11 directions the board takes, it seems to me, in a 12 construction permit case that is uncontested where the board 13 specifically looks at what the staff has done and the 14 application and sees if there is an adequate basis for the 15 findings there.
16 But that is not the way the law lays out the OL.
17 So, you know, I have got a lot of problems hearing about f
18 boards having a responsibility to judge whether the staff 19 has done an adequate review at the operating licencs stage.
20 But in the frame of a particular contention, cbviously the 21 staff has its view, as do the other parties, and they could 22 sake their case, and the board decides.
23 MR. ROSENTHAL:
I do not think the appeal boards 24 have that view of their f unction.
On the other hand, it is 25 certainly true that it would be an enormous shot with the l
l l
ALDERSON REPORTING COMPANY,INC,
_ 400 VIRGINIA AVEy S.W., WASHINGTON. D.C. 20024 (202) 554-2345
e 85
+
1 members of the appeal panel -- and I make specific reference 2 to'the technical sembers -- if sua sponte powers were 3 stricken.
4 Now, they are not suggesting that a plant that 5 does not go through an OL adjudicatory proceeding is 6 parforce unsafe.
What they are saying is that if they are 7 brought into the proceeding, the happenstance somebody filed 8 a contention, but there they are and they see something 9 which to them poses a very serious safety question, they 10 feel they have to be able to explore that.
11 And I just tell you it is not a view that they are 12 ombudsmen, that their stamp of approval on the entire 13 reactor is necessary to ensure safety or anythir.g else.
I 14 recognize some of these f acilities will be licensed for 15 operation without any board being involved at all.
16 But it is just simply there they are, they have 17 been put in this case, and if they see something they regard 18 as serious, they feel that they have a professional 19 responsibility to get into it.
And I can tell you that my 20 colleagues -- and I think I speak for them directly -- would 21 have a great deal of difficulty signing off a particular 22 plant within the confines of a contested issue if, in doino 23 th a t, they would have to turn their back on some other 24 serious problem.
That is the way they see it.
25 COMMISSIGNER AHEARNE.
That is the same point that ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
86 1 Tony made.
The question, whether people would be able to --
1 2 members would be able to sign off.
Of course, I think that 3 the proposed rule would provide the mechanism for that 4 member who believes there is a serious safety issue to raise 5 that with the Commission.
6 CHAIRMAN HENDRIE:
That argument comes not from 7 the ptoposition that if there is a serious safety question, 8 the board ought not to ask, the board ought to just leave it 9 alone, but rather on the one hand how it should be treated 10 and on the other that probably, from my standpoint, the 11 concern is -- the indication in one or two cases, at least 12 -- is that what constitutes serious a health, safety, or 13 environmental question, tha t the threshold may be moving 14 dowt. ward.
15 For instance, it is not in the least clear to me 16 why in the spent-fuel pool case the whole range of 17 unresolved safety issues, generic unresolved safety issues l
l 18 on the Commission's list is necessari1 a set of issues in 19 tha t case, and wha t does it have to do with the spent-fuel 20 pool?
21 The rest of us need to get to lunch.
Let me 22 suggest that -- why don't we come back, since the l
23 proposition here was to decide whether or not this paper or 24 some version of it should or should not be considered for 23 proposed -- f or comment.
And since we have got the Part 2 i
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ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
.g 87 1 things to consider that way, why don't we stop now and pick 2 this up as part of the next discussion, which would be on
(
3 the 26th?
4 Okay.
Thank you.
5 (Whereupon, at 12:20 p.m., the Commission 6 adjourned.)
7 8
9 10 11 12 13 r
14 15 16 17 l
18 19 20 21 22 23 k
24 25 ALDERSON REPORTING COMPANY. INC.
N*-~
NUCIZAR REGUIATORT CO.WSSION
']g This is to certify that the attached proceedings before the COMMISSION MEETING 1
in the clatter of: Publ.ic Meeting - Discussion of Revised Licensing Procedures
- Date of Proceeding:
May 19, 1981 Decket Number:
Place of Proceeding:
Washington, D. C.
were-held as herein appear's, and that this is the original transcrip%
thereof for the file of the Coc: mission.,
ANN RILEY Official Reporter (Typed)
(' ~;,
I d a [T i a y
Official Reporter (Signature) l l
1 L
- -.. ~. - -
.