ML20028G362
| ML20028G362 | |
| Person / Time | |
|---|---|
| Issue date: | 01/28/1983 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| References | |
| REF-10CFR9.7 NUDOCS 8302080481 | |
| Download: ML20028G362 (75) | |
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1 UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
DISCUSSION ON REGULATORY REFORM TASK FORCE -
4 LEGISLATIVE PROPOSALS 5
PUBLIC MEETING 6
Room 1130 1717 H Street, N.W.
7 Washington, D.C.
~
8 Friday, January 28, 1983 9
The Commission met, pursuant to notice, at 10 2s05 o' clock p.m.
11 BEFOREs 12 NUNZIO PALLADINO, Chairman of the Commission JOHN F. AHEARNE, Commissioner 13 IHOMAS ROBERTS, Commissioner
(-).
JAMES ASSELSTIME, Commissioner 14 STAFF AND PRESENTERS SEATED AT COMMISSION TABLE 4 l
15 l
SAM CHILK 16 J. TOURTELLOTTE MARTY HALSCH 17 18 19
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20 21 22 23
.s 24 25 t
l ALDERSON REPORTING COMPANY,INC,
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T DISCI. AIMER l
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This is. an 'uMficiaT transcript of a. meeting of the Unitad States
'..- : Nuclear Regulatory Comnission held on January 28, 1983 in the
.Comission's officas at 1717' H 5treet, N. W., wasnington, D. C.
The maating was open to public attendanca and observation.
This transcript har not. been reviewed, corrected, or edited, and it may contain inaccuracies.
Tha transcHpt is intended solely for general informationai purposes.
... As. provided by 10 C~R 9~.103, it is not part of the forinal or infomal recordcof decision of the matters d.isc;'ssed.
Expressions of op. inion in
~.this. transcript do not necassariTy reflect finai determinations or
~
1 beTiefs.
No pTeading or other paper may be-filed with the C::mmission i:t T
any proceeding as the res' ult of or addressed' to any statement or -argument F()
.l contained herein, excapt as the Comission may auth'erize.
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CHAIRMAN PALLADIN0s Good afternoon, ladies 3
and gentlemen.
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4 This afternoon we vill resume our 5
deliberations and discussions on the proposed 6
legislative packet on regulatory reform.
I suggest we 7
direct our attention this afternoon to the 8
section-by-section analysis.
I would like Jim 9
Tourtellottee to lead our discussions.
10 Are there any Commissioner comments before we 11 proceed?
12 COMMISSIONER AHEARNE:
My only question would 13 be, an I correct that we only have two pieces of paper b
14 ve should be looking at?
15 HR. HALSCH:
As far as I know.
We have only 16 prepared, at Jim's request, one section analysis.
17 COHNISSIONER AHEARNE:
And then there was a l
18 set of substitute pages.
19 MR. MALSCH I am not sure about that.
20 ER. TOURTELLOTTEs Yes, that is correct'.
l 21 COMMISSIONER AHEARNE Those are the only ones.
22 COMMISSIONER ASSELSTINE If I could raise one 23 item on the bill tha t was left open from yesterday.
I I
have a suggestion that might address, John, your concern 24 25 about embedding NEPA in the Atomic Energy Act.
l a
ALCERSoN REPORTING COMPANY,INC,
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1 I thought about it a little bit more and it 2 seemed to me that one alternative to that would be to 3 simply take the two provisions - that are now one in the
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4 site permit section and the other in the design approval 5 section that' discuss NEPA - and take them out of the 6 amendments to the Atomic Energy Act and put them in.a 7 single section of this bill.
8 They would not then be in the Atomic Energy 9
Act but they would be separate, free-standing provisions 10 of this bill.
11 COMMISSIONER AHEARNEs
'Yes.
12 COMMISSIONER ASSELSTINE:
So, if that makes 13 sense, why don 't I try and draft that approach?
That
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l
' 14 would answer the question about being embedded in the l
15 Atomic Energy Act.
l 18 COMMISSIORER AHEARNE:
Yes.
17 CHAIRMAN PALLADINO:
Any other comments?
Jim?
18 MR. TOURTELLOTTE:
Well, of course the 19 section-by-section analysis was actually prepared by the 20 Office of General Counsel.
So, I think --
21 CHAIRMAN PALLADINO:
That we should turn it 22 over.
1 23 HR. TOURTELLOTTE:
I think that if there are I
24 any questions -- I have some of my o wn.
l 25 (Laugther)
.l ALDERSON REPCATING CCMPANY. INC,
4
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CHAIRHAN PALLADINO:
I am sorry, Harty.
s...
2.
MR. TOURTELLOTTE:
I have some of my own 3
comments and suggestions as we go through the thing.
(-)T 4
But I think, as we have done before, it is 5
probably best to just start at the beginning with the 6 findings and purposes and, as we move through, see what 7 suggestions there might be for adding whatever needs to 8
be added, "re-word engineering," I g uess, those things 9
that the Commission feels are important to state in 10 possibly different ways.
11 So, I would ask that we just start with the 12 findings and purposes on the first page and see'how the 13 Commission stands.
O 14 COMMISSIONER AHEARNE:
Before you get to that, 15 I would say that at some point the cover letter ought to 16 try to say clearly why it is that the bill is coming up.
17 The cover letter seems to be more a repeat of pogntthereoughttobe 18 what it is, and at some
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19 something that says why is this coming out.
20 CHAIRHAN PALLADINO:
Although some of the 21 items in here are the " whys."
But I agree with you, it 22 does not quite develop in that way.
23 MR. TOURTELLOTTE:
I take it that there are no gs 24 comments on the findings and purposes part of the 25 section-by-section analysis, then?
ALDERSON REPORTING COMPANY,INC, n
5
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1 CHAIENAN PALLADINO:
Where are we?
2 The findings.
There are some marks on my copy 3
and I am not sure whose they are in every case.
Some of
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4 them are mine, some of them others'.
Besides, I can' t 5 read it.
6 (Laughter) 7 COMMISSIONER ASSELSTINE:
The addition of the 8 word " quality" is on the subsitute pages.
9 CHAIRMAN PALLADINO.
That is all I see on to mine.
All righ t?
11 HR TOURTELLOTTE:
On the construction permit 12 and operating license, Section 101, there seems to be a 13 fairly adequate description.
I have some question over 14 on page 4 15 CHAIRMAN PALLADINO:
On page 47 16 MR. TOURTELLOTTE:
I think that question was 17 raised also by Commissioner Ahearne yesterday.
18 CHAIRMAN PALLADINO:
You want to pick up in 19 between, on page 27 20 MR. TOURTELLOTTE:
Oh, yes, certainly.
21 CHAIRMAN PALLADINO:
The top of the page ended 22 paragraph - and I am not sure if it is a complete 23 paragraph - with the word " require."
It says, "Even in 24 the absence --
25 MR. TOURTELLOTTE:
It should be " hearing
. s ALDERSON REPORTING COMPANY,INC,
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1 r eq uest. "
2 CHAIRMAN PALLADINO:
Okay, maybe that is 3
already on this.
4 Now, on page 3, the top of the page, the first 5
paragraph, I don 't know if this vas a Marty Halsch 6
correction or not.
The suggestion to take out the last 7
sentence.
8 HR. HALSCH:
Where are we?
I'am sorry, I lost 9
tra ck.
10 CHAIRNAN PALLADINot Page 3..
11 RR. TOURTELLOTTES The last sentence of the 12 first paragraph.
13 CHAIRMAN PALLADIN0s "Nothing in this O'
14 subsection would preclude the issuance of a temporary 15 operating license under Section 192 of this Act."
16 NR. HALSCHs Let me explain that.
The current 17 Section 192 authorizes issuance of something that is 18 called temporary operating licenses.
19 In the case of a combined contruction permit 20 and operating license, the authorization that is 21 required from the Commission prior to opera tion would 22 not technically follow the language of the bill (b) 23 operating licenses.
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24 Technically, they have already gotten what the 25 bill calls combined construction permit and operating m
ALDERSoN REPORTING COMPANY. INC,
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license.
2 So, if you were to presume that 192 vill be 3
extended or that the bill gets enacted early so that
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4-this section, current Section 192, is still in ef fect at 5
the time the bill gets enacted, you might consider 6
making conforming changes to Section 192.
7 I think that is the problem.
The sentence 8
here does not add much, it does not resolve the issue.
9 So, I would be in favor of taking it out.
I think what 10 ve need to think about is conforming changes of 192 if 11 ve are thinking about issuing an operating authorization 12 prior to completion of the new kind of limited hearing 13 called for by this Act.
')
14 CHAIRMAN PALLADINot So, you recommend taking 15 out tha t sentence.
b' t,
16 ER. MALSCH:
I recommend taking it out u
17 sir, keeping in mind to think about this question again l
18 as the bill progresses.
19 COMMISSIONER ASSELSTINE Although in any 20 event that situation would only occur if this bill were 21 to be enacted before December of this year.
22 MB. MALSCH:
That's right.
Or if 192 were 23 extended.
w-24 COMMISSIONER ASSELSTINEt Was extended, that 25 is right - both of which, I would suspect, are lov s
s ALCERSON REPORTING CCMPANY,INC,
8 1
p to babilitie s.
2 (Laughter) 3 COMMISSIONER ROBERTS:
Would it be December,
)
4 or?
5 COMNISSIONER ASSELSTINE:
December of this 6
year, yes.
Is it not December?
7 MR. MALSCH:
December 31, yes.
8 CHAIRMAN PALLADINO:
Do you feel confortable I
9 in crossing it out?
10 COMMISSIONER AHEARNE:
Yes.
11 COMMISSIONER ASSELSTINE
.Yes.
i 12 COMMISSIONER AHEARNE:
Could I go back to the l
l i
13 bottom of page 1 and the top of page 27 Ma rty, I guess (T
14 I would like you to-talk about why you believe this is 15 acarate.
16 You say that, you are talking about deleting 17 the requ'irement for the earliest and latest completion 18 dates, with which I do not he a problem.
19 The problem comes, "The existing provision has 20 produced unnecessary paperwork" - I agree
" expenditure i
21 of resourcas" - fine - "without assuring that l
22 construction is diligently pursued."
I presume that is 23 correct.
(
24 Defined then, " Reasonable diligence in 25 const ru ctio r is largely assured by the large investment ALDERSON REPORTING COMPANY,INC.
9
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1 and carrying charges for that investment."
I would like l
2 to understand that.
3 MR. HALSCH We,lif ted this language f rom an
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4 earlier draft of Jim's.
5 (laughter) 6 MR. HALSCH:
Let me just say that in 7
performing this service for Jim here we put them in.
8 MR. TOURTELLOTTE:
I take it the ball is over 9
on my side now.
10 (Laughter) 11 NR. TOURTELLOTTE:
All right, that is a 12 judgment.
But in f act there is a considerably stronger 13 driving force by c'eason of having, say, a quarter of a
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14 billion, a half a billion, a billion dollars invested in 15 a plant.
16 There is a considerably greater impetus for 17 completing that construction project on schedule than is 18 the simple setting of a dats as to when construction is 19 going to be completed.
20 And in the past, of course, obviously the fact 21 that a data has been set has little or nothing to do 22 with the f act that the project is completed on time.
l 23 And in fact, in asny instances they have had to come in k-24 and ask for extensions which are relatively meaningless, 25 they are just paperwork.
They do not really accomplish i
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ALDERSCN REPORTING COMPANY,INC,
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1 anything.
2 COMMISSIONER AHEABNE:
I would have thought 3
that the issue is whether or not our approval should be
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4 viewed as being only valid for a fixed period of time 5
because after that period of time we would have wanted 6
to revisit the regulation or, after that period of time 7
we doubt that whatever was being constructed would be 8
able to be stretched out that long and still be built i
9 safely.
l 10 But as f ar as diligence in carrying-through l
11 with the construction, I.would guess the argument would 12 be that is not really a health and safety concern.
t 13 I don't know if, were I asked can I give some k'
14 proof, that the diligence is assured.
I can say that, 15 "Yes, it would certainly seem logical that the utility 16 management would because of the large investment and 17 carrying charges, would like to move forward - asterisk, 18 asterisk - except in those cases where they have 19 concluded that for either lack of having access to the l
20 cash or because of decreased load demand f orecast, they l
21 have concluded it is best to slow down," which as 22 actually happened in a number of plants.
23 CHAIRMAN PALLADINO Yes.
MR. TOURTEllOETE:
Or cancelled.
But once 24 25 again, you see, the setting of the completion date in ALDERSON REPCRTING COMPANY,INC, E MR KM4 12 0 2H54-2345
11
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1 terms of the initial permit has nothing to do with those 2
decisions.
3 COMMISSIONER AHEARNE:
Jim, Jim, I am not
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4 objecting.
5 ER. TOURTELLOTTE:
It has no effect on those 6
decisions.
7 COMMISSIONER AHEARNE:
I agree with taking the 8
provision out.
9 NR. TOURTELLOTTE:
Yes.
10 COMMISSIONER AREARNE:
I am just having 11 concern with defending this sentence of explanation.
12 CHAIRMAN PALLADINO:
The explanation of how 13 you are going to contin ue to get reasonable assurance.
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14
. COMMISSIONER AHEARNE:
I would just drop that 15 sentence.-
16 MR. TOURTELLOTTE:
I have no problem with 17 dropping it.
The only ques tion migh t be, well, if you 18 don't have this provision in there, how do we know that 19 someone is not going to file an application and then 20 just let it lay there.
21 COMMISSIONER AHEARNE:
You mean after getting 1
22 approval.
23 MR. TOURTELLOTTE:
Yes.
I though t that tends 24 to answer that question.
There is a driving mechanism,
j 25 a driving economic mechanism -
al though, as you point j
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ALDERSON REPORTING COMPANY,INC,
12
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1 out, it may not be the only one.
2 COHNISSIONER AHEARNE I would quess that 3
right now there are enough cases where utilities have
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4 slowed down plants to make it difficult to defend that 5
sentence.
6 So, I would think that that might actually be 7
veakening our argument.
I grant you that there ought to 8 be something there to support it but I don't think that 9
does.-
10 HR. TOURTELLOTTEs Well, it might be rephrased 11 to say that economic considerations associated with the 12 large investment and carrying charges provide an 13 impetus, provide an impetus for diligence in 14 construction.
15 COMEISSIONER AHEARNE:
Fine.
16 HR. TOURTELLOTTE:
Something like that.
17 COMMISSIONER AHEARNE:
Yes.
18 COMMISSIONER ASSELSTINE4 Tes, I think there 19 are ways if that became a problem that we could address 20 it.
It seems to me one way is, we could adopt a 21 regulation that says you have to begin construcion or 22 pursue construction in a diligent manner or begin it 23 within a certain period of time.
That would be a basis 24 for revoking the license if it was not complied with, if 25 it really became a problem.
ALDERSoN REPCRTING CCMPANY,INC,
l 13 (G
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1 COMMISSIONER AHEARNEL Yes, I would guess I 2 would have to see some connection to health and safety.
3 COMMISSIONER ASSELSTINEs Yes.
l 4
MR TOURTELLOTTE4 However, you see, initially 5
the placing it in the Act indicated that health and 6 safety was not really the consideration there as much as l
7 it was, I think, most the concern that scueone might 8 file an applicaton and then not follow it through.
9 They want to make sure that they follow it 10 through at some point in time.
11 HR..HALSCH:
Let me just say just for the 12 lower hazard that the reason why that section was 13 originally put in the statute back in 1954 is, at that 14 time the AEC was allocating special material to the 15 licensees because the AEC was the only source of 16 natorial.
17 The concern was that they are making the 18 allocations at the construction permit stage and there 19 was sort of a scarcity of materials.
Thy wanted to make 20 sure because there was a scarcity that the people who 21 were building a plant pursued the project diligently and 22 then used the materals on a timely basis.
We do not do 23 that anymore.
24 COMMISSIONER AHEARNE:
Why don't we say that?
25 HR. MALSCH:
We could say that in the analysis.
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
14
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1 CONHISSIONER AHEARNEs Yes, excellent.
1 COMMISSIONER ASSELSTINE:
I think.that is a 3
good idea.
)
4 COMMISSIONER ASSELSTINE:
The original 5
justification for this provision is no longer there.
6 "R.-MALSCH:
One other. thing occurs to me.
7 There are other sections of the statute that say, "Each 8 license shall be issued for a specified period..."
9 We probably ought to explain in the section i
10 analysis that that section would not apply because the 11 obvious intent of taking it out of the CP section is 12 that we can issue licenses without any fixed term.
13 CONNISSIONER ASSELSTINEs Yes.
I. i 14' CHAIRMAN PALLADIN04 Where should that be, in
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15 this section?
i 16 HR. HALSCHa I would put it in this section.
17 CHAIRHAN PALLADINO:
Are you reading this 18 tro ug h ?
19 HR. TOURIELLOTTE:
Well, I was over at page 4 l
20 and we went back to page 2.
21 CHAIRMAN PALLADINO:
That is where I was.
I 22 HR. TOURTELLOTTE:
So, is there anything else 23 on page 2, I guess, is the question.
O 24 CHAIRMAN PALLADIN04 I was on page 3.
25 ER. TOURTELLOTTE:
Page 37 On page 3, I
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ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
1 l
15 l
1 think, it was agreed to take out the last sentence in 2
the first paragraph.
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3 CHAIRMAN PALLADIN04 A change was suggested 4
just below the middle of the page where it is speaking j
5 about, "which are needed to support licensing conditions 6 under applicable provision of Federal law where there-7 have been made..."
8 The suggestion was, cross out "where then" and 9
put "and which" have been made.
After " Federal law."
to COMMISSIONER AHEARNEa Yes.
11 HR. TOURTELLOTTE:
"And which?"
12 CHAIBNAN PALLADIN0s "And which have been 13 made."
zs 14 5R. TOURTELLOTTE:
Anything else on page 3?
15 Page 47 16 COMMISSIONER AHEARNE:
Yes, the last pa ra gra p h 17' prior to Section 102.
That was something that I think l
18 Jim you had said --
N 19 COMMISSIONEh ASSELSTINE:
That is righ t, I am 20 going to provide some additional discussion of the 21 meaning of the substantial evidentiary showing.
22 CHAIRMAN PALLADINO Where is this?
23 COHNISSIONER AHEARNE:
This is the last s/
24 stentence prior to Section 102.
25 COMMISSIONER ASSELSTINE:
Tha t 's righ t.
d ALDERSoN REPORTING COMPANY. INC.
400 VIRGINIA AVE., S.W., WASHINGTON 0.C. 20024 (202) 554 234S
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1 CHAIRNAN PALLADINO:
Just prior to 102?
2 COHHISSIONER AHEARNEa Yes.
And I am 3
interested in, I hope that what the explanation vill
)
& then not leave the implication as I got out of this, the 5
inference that when we says "as under current law," what 6
this meant is that this is not affecting anything.
7' COHHISSIONER ASSELSTINE:
Right.
8 CHAIRHAN PALLADIN04 So, what are you going to 9
do, Jim 7 10 COMNISSIONER ASSELSTINE4 I am going to 11 provide a revision which will include additional 12 elements for this paragraph that precedes Section 102.
13 CHAIRMAN PALLADIN0s In Section 102 there is a O
14 suggested change --
15 HR. TOURTELLOTTE:
Excuse me, before you get 16 to th a t.
17 CHAIRMAN PALLADINO:
Go ahead.
18 HR. TOURTELLOTTE:
Also, up about that same 19 area ve talk about substantial evidentiary showing.
In 20 ac=ordance with the discussions we had I th ough t too 21 that might be a good place to add some discussion as to 22 what the qualitative assessmet of this substantial 23 evidentiary showing might be.
24 COHNISSIONER ASSELSTINE:
Th at 's righ t.
25 HR. TOURTELLOTTE:
Hight?
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTCN, D.C. 20024 (202) 554 2345
17 1
COMMISSIONER ASSELSTINE:
That's right.
2 MR.'TOURTELLOTTE:
That is correct.
Okay.
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3 And that is going to be part of your rewrite.
I 4
COHNISSION ER ASSELSTINE:
Tha t 's right.
5 Excuse me.
Now, 1027 6-CHAIRMAN PALLADIN0s In the second line it 7
says, "This is the section which aff ords members of the 8 public the opportunity to request and participate in 9
hearings," et cetera.
10 It was suggested tha t the words "this is the 11 section which" should be replaced by -- I want to make 11 sure I read the number right - Section 189 affords 13 members of the public.-
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14 The comment is, 189 is broader, it covers 15 materials, et cetera.
16 And th e n, at the end of the sentence it was 17 suggested we add "and activities."
So, the sentence 18 would read, "Section 189 affords members of the public
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19 the opportunity to request and participate in hearings
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20 on proposed licensing actions relatig to specific 1
21 nuclear facilities and activities."
22 I don't know what " activities" are.
23 COMMISSIONER AHEARNE:
That is the materials.
3 24 CHAIRMAN PALLADINO:
Okay.
25 COMMISSIONER AHEARNE:
We are still on page 4.
4 ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASAINGTON, D.C. 20024 (202) 554 2345
18
(,'
1 COMMISSION ER ASSELSTINE:
Yes.
2 COMMISSIONER AHEARNE:
I noticed the revised
(')
3 pages brings attention to something.
Subsection (d),
.... the final determinations made in any prior..."
5 Now, how is this going to now read, " prior 6
proceedings?"
7 COMMISSIONER ASSELSTINEs That is what it 8
looks like to me, yes.
9 MR.. MALSCHs I don't have a copy of it.
10 COMMISSIONER ASSELSTINE4 "Made in a prior 11 proceeding," and then you add that sentence.
12 COMMISSIONER AHEARNE4 Yes.
13 MR. MALSCH:
It would read " proceeding' and 14 then we would make clear toward the end that this
'~~
15 includes staff review.
18 COMMISSIONER AHEARNE4 Now, that is --
17 CHAIRMAN PALLADINO:
Where do you say that?
18 COMMISSIONER AHEARNE:
That was the issue I 19 wanted to get to.
l 20 Is there somewhere in the Atomic Energy Act a I
21 phrase or a section which would link proceeding and 22 h ea ring?
23 MR. MALSCH:
The only thing I could think of
.s.
24 is --
- s. s l
25 COMMISSIONER AHEARNE:
That is something like ALDERSON REPCRTING CCMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
19 1
allowing a hearing to be available.
2 MR. HALSCH4 You mean a proceeding?
3 COMMISSIONER AHEAREEs Yes.
(]
4 MB. MALSCH:
No, the closest you have is 5
189(a) which is allowing a hearing in any proceeding 6
for, and then it is defined in what kind of proceedings 7
you do have a right for a hearing.
8 CONNISSICNER AHEARNEa So, you don't believe 9
then by us now equating a licensing action as a 10 proceeding this is going to then by some torturous logic 11 10ad you to bringing in the APA requirements on all I
12 licensing actions..
13 MR. MALSCH:
No. But just as 189 talks about s
(.)
14 proceedings for certain kinds of actions.
So the the f
15 litigation section talks about proceedings for certain 16 kinds of actions, and I think it would be similarly 17 limited.
18 COMMISSIONER AHEARNE:
All right.
19 CHAIRMAN PALLADINGs Go ah ead.
20 NR. TOURTELLOTTE:
I am not positive about 21 this, but I think also the APA in interpretations of the 22 term " proceeding" did not equate that to " hearing."
But 23 it is a broader term.
24 HR. HALSCH:
That is true.
~-
25 MR. TOURTELLOTTE.
A hearing is a proceeding, ALDERSoN REPCRTING CCMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINJTON, D.C. 20024 (202) 554 2345
20 e ')
1 but a proceeding may not be a hearing.-
2 NB. HALSCH:
Well, tha t is true, c'
3 COHNISSIONER AHEAREE4 My confusion was, I 4
thought that there was a link in the Atomic Energy Act 5
that for proceedings one requested a hearing, it would 6
have to be granted under some certain conditions.
7 HR. HALSCHs No.
In fact, if you look at the 8
legislative history, at one time 1(a)(1)(A) read as 9
though you had a right to a hearing on any Commission 10 action.
And the drafters said, "Oh, no, we do not knov 11 what that means, that includes too many things.
Let's 11 define the kinds of actions as to which you do have the 13 right for a hearing."'
14 COMMISSIONER AHEARNE:
Fine.
15 MR. HALSCH:
And the result was proceeding for 16 the gran ting, issue, and amending, and so forth.
17 COMMISSIONER AHEARNE:
Okay.
18 COMMISSIONER ASSELSTINE:
I have one question 19 at the top of page 4 that relates to the certification, 20 need for power and alternate generating means analysis.
21 At the end of the first full sentence on the 22 top of page 4 I thought the point we were trying to make-23 there was not just that this provision does not preempt 24 the Commission's regulatory authority over radiological 25 harards and that a state cannot substitute its judgment, ALDERSON REPCRTING COMPANY,INC.
400 VIRGINIA AVE S.W., WASHINGTON, D.C. 20024 (202) 554-2345
21 m
1 but also the point that the Commission would develop the 2 radiological hazards basis that the state would then use 3
in doing the alternate generating means analysis.
A CHAIRHAM PALLADIN0s Say that again, Jia?
5 COBBISSIONER ASSELSTINE:
Cartainly.
6 That the Commission would in essence provide 7
the radiological hazards assessment that would serve as 8
thes basis for the state alternate generating sources 9
consideration.
10 CHAIRHAN PALLADIN0s Hight.
I 11 COMMISSIONER ~ ASSELSTINEa I think we ought to 12 add that element in there.
13 CHAIRMAN PALLADINO How would we provide that?
es
(
' ~ ~
14 COMMISSIONER ASSELSTINE:
I think you just 15 need another sentence at the end.
16 CHAIRHAN PALLADINO:
No, I meant how would you 17 provide the state the radiological hazards assessment?
18 COMMISSIONER ASSELSTINE:
For acceptability 19 for a site, for example, we say, "Here is the envelope."
20 COMMISSIONER AHEARNE:
That's right.
21 COMMISSIONER ASSELSTINE:
The envelope, the 22 radiological envelope.
And then, when we approve a 23 plant we say, "Yes, this plant falls within that."
So, 24 ve are essentially in the first place saying what the l
25 emission level should be and in the second we are saying l
ALDERSCN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W.. WASHINGTCN, D.C. 20024 (202) 554 2345
22 i )
1 what the emission levels are or would be.
2 COMMISSIONER AHEARNE:
Ies.
-w 3
CHAIRMAN PALLADINO Okay.
-]
4 COHNISSIONER ASSELSTINE4 But I don 't have 5
language for a sentence.
6 COHdISSIONER AHEARNE:
Marty, if I could on 7
that previous point, on this set of substitute pages 8
there is the sentence added, "For purposes of this 9
section a proceeding is not limited to a hearing."
10 Is that what you are thinking of?
11 MR. MALSCH That was the idea, yes.
12 C05HISSIONER AHEARNE Now, you see, that led 13 me to conclude if for purposes of this section a
(
14 proceeding is not. limited to a hearing, then the rest of 15 them 16 MR. MALSCH:
It should be for purposes of 17 Subsection -- whatever it is -- (d) I guess.
18 COHHISSIONER AHEARNE:
Then, is it not correct 7
19 that everywhere else a proceeding is limited to a 20 hearing?
21 HR. MALSCH:
Not necessarily.
22 COEMISSIONER AHEARNE:
Well, it if reads, "For 23 purposes of this subsection a proceeding is not limited 24 to a hearing."
25 MR. MALSCHs Oh, I see, if you are reversing ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
33 l
l ()
1 it.
What we ought to do is explain more clearly what it 2 is that we are after.-
3 COMMISSIONER AHEARNEt Yes, yes.
{)
4 CHAIRMAN PALLADIN04 Delete this whole section 5 you are talking about?
i l
6 MR. NALSCHa Yes, what ve-have to do is-7 explain a little less cryptically what we are doing.
8 Say the provision regarding relitigation would apply not 9 only to prevent relitagation decisions made by Licensing 1
10 Boards af ter hearings, but also prevent relitigation of l
11 issues finally resolved by the Commission where no i
12 hearing has been requested, something like that.
13 CHAIRMAN PALLADIN04 In place of this sentence?
14 MR. HALSCH:
Yes.
15 CHAIRMAN PALLADINO Okay because one of.the 16 questions this sen tence raises, if it is not limited to 17 a hearing, what all does it include.
i l
18 NH. HALSCH:
Well, if we followed my i
19 formulation it includes, for example final decisions 20 reached by staff in a safety evaluation report where 21 those aspects of the report were challenged by anyone.
22 CHAIRMAN PAllADIN0s Yo are going to provide 23 substitute language ?
(-
24 MR. MALSCH:
We vill provide some better 25 language th a t is a little less cryptic.
eS ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
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)
1 HR. TOUBTELLOTTEt Page 5?
2 CHAIRNAN PALLADINO4 I would suggest a change 3 on line 8, I think it is where it starts, "This reflects
)
4 a policy judgment that hearing should not be held where i
5 there are no material issues of fact placed in dispute."
6 The suggested change is, "This change reflects 7 the judgment es reflected in Section (2)(a)(11) of the 8 bill."
This is to tie the judgment to a finding in ithe-9 bill.
I can give it to you.
10 HR. TOURTELLOTTE:
I'm sorry, that what?
11 CHAIRHAN PALLADIN0s.
What bothers ne is, there 11 are two " reflects" in there.
This change, you put af ter 13 "this" tha word " change."
And then cross out "a " a nd
,/ '
~
14 put "the."
Cross out " policy" and then after 15
" judgment", "... as reflected in Section 2(a)(11) of the 16 b ill,..-. "
17 COMMISSIONER ASSELSTINE:
You could say, "as 18 provided" and you would not have two " reflected."
19 CHAIRHAN PALLADINO:
What is that?
20 COMMISSIONER ASSELSTINE:
You could say, "as 21 provided in Section 22 CHAIRMAN PALLADINO Provided in Section 23 2(a)(11)," I think tha t would be better.
24 MR. TOURIELLOTTE:
I would also suggest that 25 you add the word " adjudicatory" before the word ALDERSON REPORTING COMPANY,INC, L.
25 O
'/
1
" hearings" because in the hybrid hearing process you are 2 actually having hearings initially which are not
(])
3 adjudicatory in nature.
4 CHAIRHAN PALLADIN0s Farther down on the page, 5 in the second full paragraph the last sentence that 6 begins, "These subsections would not," I suggest that 7 the word " subsections" be changed to " provisions," that 8 "these provisions would not."
9 COMMISSIONER ASSELSTINE:
Let's see, I had a 10 couple.
The last sentence just before the middle 11 paragraph on the page, the last sentence of the first 12 paragraph.
"This section also would permit the 13 Commission at its discsretion to use hybrid-type hearing 14 procedures," I would ad in, as specified in 15 subsections (c) and (d.), " instead of the fo rmal 18 adjudicatory procedures.
Just to make it clear that th e 17 bill contains the specific types of hybrid procedures.
18 CHAIRMAN PALLADINO:
Specified in what?
19 COMMISSIONER ASSELSTINE:
In subsections (c) 20 and (d).
21 CHAIRMAN PALLADIN04 And cross out the rest of 22 the paragraph?
23 COMNISSIONER ASSELSTINE No, keep the rest.
24 CHAIRMAN PALLADINO:
Keep the rest.
25 COMMISSIONER ASSELSTINE:
Yes.
Just add that ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTCN, D.C. 20024 (202) 554-2345
26 s
1 insert.
right
. _f On the middle paragraph I would change, 2
" reviews for CP/0L the end of the first sentence, 3
at
}
" reviews for plants that have 4 plants," I would say, previous 1r been issued a combined CP/0L."
5 paragraph on page S I would take And the last 6
the words " production or utilization" in the third 7
out 8
line up from the bottom.
CH AIRMAN P ALLADINO:
Is that because it does 9
10 n o t a p p l y,- o r ?
COMMISSIONER ASSELSTINE4 That's right, yes, 11 since we have now limited it to thermal-neutron power 12 13 generation f acilities.
What did you cross out?
CHAIRMAN PALLADINO:
14
" Production or CONHISSIONER ASSELSTINE:
15 at the end of the third line 16 utilization."
Tt is right 17 up from the bottom.
at the top of page 6, I have one other point 18 reads, " Members of the the carry-over sentence where it 19 wish to participate in pubb.icthroughoutthenationmay 20 his public proceedings on design approval requests and t 21 them with is a special mechanism for providing 22 appropriate notice."
23 I think it also might be useful to add in a
i 24 is the case, the fact sen tence just to explain why that 25 ALDERSCN REPORTING COMPANY,INC, 20024 (202) 554 2345
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27 n
1 that you will have a design approval request that will 2
not be tied to a specific site, and it nigh t be
(])
3 ref erenced to sites anywhere in the country.
4 CHAIRMAN PALLADIN0s You are going to suggest 5
something?
6 MR..HALSCHs I will put some-language together.
7 COMNISSIONER AHEARNE:
On page 6, a variation 8
of a previous discussion we had.
When we were
~
9 discussing 189(a)(1)(D) of the bill on this "were not 10 and could not and new information," I thought that the 11 point that was aide was that it was not going to be --
12 the reason. that the new information was there in 13 addition was that it was the possibility of new
(
t 14 information no an issue tha t had previously been raised.
15 CONHISSIONER ASSELSTINE:
That 's right.
i 16 COHNISSIONER AHEARNE:
And theref ore my 17 argument that you did not have to have the second phrase
(
18 was not correct.
19 But I' noticed tha t the section by section 20 speaks of an issue which could not have been raised i
21 because it is based on new information would be an l
22 appropt.-iate issue for consideration.
23 So, if it is really a new issue then I would L-24 argue that we don't need the phrase unless it is based 25 on new information.
l
!(
Al.DERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
28 O
i since te no says, "an issue which co 1d not 2
have been raised, however, would be an appropriate issue 3
for consideration."
That is taken up in the previous --
(]
4 CHAIRMAN PALLADINO:
So, what do you want to 5
take out?
~
6 COMMISSIONER AHEARNE:
All I am suggesting is 7~
that if the previous discussion which led to keeping in 8
the phrase in the bill is correct, then the section by 9
section ---
10 COMMISSIONER ASSELSTINE:
That is right, this 11 does not track that previous discussion.
That is right.
12 COMMISSIONER AHEARNE Yes.
So, someone ought 13 to rewrite it..
O 14 COMMISSIONER ASSELSTINE4 Yes.
15 NR. TOURTELLOTTE:
Right before that sentence 16 too where we are talking, there is some discussion about 17 the substantial evidentiary showing.
I think right 18 bef ore "an issue" it seems to me that we ought to N
19 include the definition of what a substantial evidentiary 20 showing is at that point.
21 COMMISSIONER AHEARNE:
Yes.
22 COMMISSIONER ASSELSTINE Well, this is the 23 second time now that the term is used.
Let's see, if we
('
24 do a detailed explanation a t the first point then we 25 could simply refer to those at this point that is
~f ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W WASHINGTON, D.C. 20024 (202) S54 2345
29 (A
1 mentioned..
s 2
HR. TOURTELLOTTE:
But either previously or
(]}
3 here it seems that it is --
4 COMNISSIONER ASSELSTINE4 I agree, yes.
5 MB. TOURTELLOTTEs.
It should be set out what 6
that definition is and maybe a little-more discussion of 7
what it entails.
8 COHHISSIONER ASSELSTINE:
Yes.
9 CHAIBHAN PALLADINO:
The long paragraph in the 10 siddle of the page suggests,.the last phrase that says, 11 "unless barred by traditional concepts of res judicata l
12 or collateral estoppel."
13 That it read, "unless litigation was barred,"
( ()
I 14 e t cetera -- relitigation, excuse me, relitigation.
15 "unless relitigation was barred by."
16 MB. TOURTELLOTTE:
I have a question about 17 that.
I am wondering whether that phrase really has any 18 applicability because it is my understanding that -- and 19 I have not read the last Appeal Board Opinion that is 20 out - but that really res judicata and collateral 21 estoppel simply do not apply for the most part in our 22 proceedings.
23 COMMISSIONER ASSELSTINE:
Oh, no.
24 ER. HALSCHs That is not right, they do apply.
25 COMMISSIONER ASSELSTINE:
There a re limits on ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554-2345
30
'A j
1 the extent to which they foreclose issues.
For example, 2-if you have Party A in a constructon permit proceeding 3
that raises an issue, and Party A tries to raise the
{])
4 ~ same issue in an operating license proceeding, he is 5
foreclosed f rom doing so by the legal doctrines.
6 MR. TOURTELLOTTE:
The point that I as making 7
is that practicality, the practical situation is that 8
that does not occur.
9 EH. HALSCH:
Yes.
The more usual situation is 10 Part B tries to' raise the same issue.
11 COMMISSIONER ASSELSTINEa That's right.
l 12 MR. TOUBTELLOTTE:
Correct.
13 ER. NALSCH:
And that would be barred by the O~~
14 new language here.
l 15 MR. TOURTELLOTTE Yes, but 16 COMMISSIONER ASSELSTINE:
But not by the 17 traditional legal concepts.
18 MR. TOURTELLOTTE:
Well, let me tell you what 19 sy real concern is.
That somebody is going to read this 20 and say, "Well, gosh, if you got all the protection of 21 collateral estoppal and res judicata, then what do you 22 wawnt this other protection for?"
23 My answer would have to be that res judicata 24 and collateral estoppel for the most part don't work.
25 COMMISSIONER AHEABNE:
Well, would it be l
ALDERSCN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
31 Pkl 1
better to sa y, "unless relitiga tion was barred bT the 2
NRC's interpretation of the concept?"
('N 3
(Laughter) s/
4 COMMISSIONER ASSELSTINE:
I think the concepts 5
are pretty clear.
6 MR. TOUBTELLOTTE:
Well, actually, see, one of 7
the things that can happen, in order to get around the 8
same issues raised by the same parties, the situation is 9
that you simply get another party in and the other party 10 reraises the issue.
Then the issue has to be l
11 relitigated because the parties are not the same.
I l
12 And that has happened on occasion.
And for 13 the most part it is easy to get around these things.
I 14 don't recall any case that I was ever in where anybody 15 was successful in stopping an issue from being 12.tigated 16 on the basis of res judicata or collateral esto: el.
17 As a matter of fact, every time I ever :ried 18 to use it, I failed.
That is why I guess I am not 1
19 enthusiastic about it.
I 20 COMMISSIONER AHEARNE:
You do not see it as l
21 much of a bar.
22 MR. TOURTELLOTTE:
Not much.
23 COMMISSIONER ASSELSTINE:
I would agree with 24 that, that I don't think it is too much of a bar.
25 Probably what ought to be done here is to simply explain ALDERSON REPORTING COMPANY. INC, i
Stor,1 rdLR Komo cR6pa gg3.g4g
32 1
that those traditional legal doctrines as they have been 1 applied in our licensing cases don't provide auch of a 3
limitation on the abilitr to relitigate issues, and tha t
{a]
4 this provision would go farther than those traditionti 5
doctrines.
6 MR. TOUBTELLOTTE:
I think that is a good idea.
7 CONNISSIONER AREARNE:
Yes.,
8 NR. TOURTE1LOTTE4 The peculiar circumstances 9-of licensing are such that those doctrines, although 10 they work in civil litigation, did not work very well in 11 licensing.
12 COMMISSIONEB ASSELSTINE:
That is the 13 difficulty of being able to demonstrate that a O
14 construction permit proceeding and a subsequent 15 proceeding like an OL proceeding is the same cause of 16 action.
17 MR. MALSCHs That is probably the other part 18 of this, you usually run into a DOL stage, contentions 19 which are arguably based upon new information anyway.
20 COMMISSIONER ASSELSTINE:
That's right.
21 MR. HALSCH4 So, the minute you get new 22 information, the traditional concepts no longer seem to 23 apply very much and you are left with not much case law 24 at all that will sllow you to restrict the review.
25 CHAIBMAN PALLADINO:
Are you going to write --
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1 HR. MALSCHz.
I can provide some explanation as 2 to what the traditional concepts are and why they have f}
3 not provided auch by way of limitation, and what would
^
v 4 be different about this.
5 COMEISSIONER AHEABNE.
A question on the 6 Sholly A,Mendment pro vision.
You say nere-that the 7 sub;ection is similar to the Sho11y Amendment except 8
that the concept would be extended.
9 Do you mean that it is identical. to the Sholly 10 Amendment except that the concept would be extended, or 11 are there changes other than the extension in the 12 concept?
13 HR. MALSCH:
I didn't check it word for word.
~
14 I think it is identical except for that, and for the 15 f act that the rule-making provision was not put in the 16 Atomic Energy Act as part of this reform bill.
i 17 I think apart from that it is the same, it is 18 identical.
19 COMMISSIONEF ASSELSTINE:
I think we put in 20 the rule-making provision.
21 MR. MALSCH:
I don't remember.
22 CHAIRMAN PALLADINO:
I remember seeing ea rlie r 23 draf ts changed because they were not cor sis tent.
24 MR. TOURTELLOTTE:
Ny understanding was that 25 it was supposed to be identical except for the addition I
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
34 nx (d.
1 of those --
1 COMMISSIONER AHEARNE That is what I thought,
(~)
3 too.
I wonderc.d whether there was some --
v 4
CH51RMAN PALLADINO If it is we are going to 5 say it is the same as the so-called Sholly.
6 COMMISSIONER ASSELSTINEa-It is.
7 ER. TOURTELLOTTE:
Or is identical except 8
MR. MALSCH:
I think the draft I was working s
9 from did not have the rule-making section in it.
So, I 10 said "similar."
But if it does now, we can say 11
" identical."
12 COMMISSIONER AHEARNE:
I would rather say that.
13 CHAIRMAN PALLADINO:
We have seen this.
I b~.
14 have trouble with " identical."
It is the same as the 15 so-called Sholly Amendment.
16 MR. MALSCH Yes.
17 COMMISSIONER ASSELSTINE:
Yes.
18 MR. TOURTELLOTTE:
Page 77 19 CHAIRMAN PALLADINO:
I have a few editorial 20 suggestions.
In the third line down instead of 21
" conduct," suggest "use.
I don't feel strongly about l
22 that.
23 And then below, farther down -- let's see, the 24 seventh line - where it reads, "f ormal trial type with 25 no flexibility" -- I have to read the whole thing.
i l
l ALDERSON REPORTING COMPANY,INC,
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l crA VIR@lNIA AVE, S.W, WASHINGTON, D.C. 20024 (202) $54-2345
35 r"(3 1
" Historically the hearing phase of the 2 proceedings to license production and utilization
(]).
3 facilities has been entirely adjudicatory (i.e., formal, 4 trial-type) with no flexibility f or any inf ormal 5
proceedings."
The suggestion was made, "with no 6 flexibility" to substitute " informal procedures."
7 I have a feeling this is more clear.
8 COMMISSIONER AHEARNE:
Would it be true?
9 CHAIRMAN PALLADINO:
Yes, at least that is 10 wha t Bill Benick said, that this is more true.
11 COMMISSIONER ASSELSTINE:
I think that is true..
12 MR..TOURTELLOTTE:
So, what would you propose?
13 CHAIRHAN PALLADI304 "With no fle xibility," to 14 substitute " informal procedures," and cross out 15
" proceedings."
16 COMMISS'IONER ASSELSTINE:
I would just add the I
17 word " hearings" af ter " trial type," just to make it l
l 18 clear.
f l
19 COMMISSIONER AHEARNE:
My question really is 20 not questioning that we have not used any informal 21 procedures.
My question really was, is it true that it 22 was not possible to use the m ?
23 COMMISSIONER ASSELSTINE:
I suspect there is a 24 dif ference of view on that issue.
25 MB. MALSCH:
I think this is worded so as to
/
ALDERSON REPORTING COMPANY,INC,
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36 l
/
1 avoid taking sides on that question and just speak.to 2 historical practice.
3 COHHISSIONER AHEARNE:
Well, the inference I
& drew is, we are doing more than speaking historical 5
practice.
6 CONMISSIONER ASSE1STINE4 I guess I read 1.t 7. just as historical.
8 HR. TOUBTELLOTTE s Have all the proceedings, 9
have they been entirely adjudicatory?
10 COHEISSIONER AHEARNE4 Well, it all depends on 11 what you call " proceeding."
12 See, as we talked earlier, it depends on what 13 is a proceeding.
Some people would have argued tha-t out O
14 in the Midwest a couple of years ago when the staff and 15 the intervenor, and the utility - I think it was the 16 Omaha - got together and held a aseting and at the end 17 of it they decided that they did not really have any i
18 arguments and there were no arguments then raised, that 19 tha t was an informal proceeding.
20 MR. MALSCH.
I think historically, whenever 21 people have pressed and insisted on whatever f ull rights 22 were accorded them under 1-EIA in the case of 23 facilities, we have ended up giving them a formal
/
24 trial-type hearing.
25 That is not to say we have not met with l
I ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. 0.C. 20024 (202) 554 2345
37
/
1 parties.
.s 2
COHHISSIONER AHEA RNE:
Then it is no
~
3 fle xibility to substitute informal procedures at the 4 NRC's desire.
5 HR. HALSCH:
That is true.-
It was always-6 possible for parties to get together and decide-any 7
decision they wanted to.
8 MR. TOURTELLOTTE:
Does Vermont Yankee not 9
fall in this category?
10 MR. HALSCH I don't know what you mean by 11 Vermont Yankee.
12 HR. TOURTELLOTTE Well, the Vermont Yankee 13 proceedings.
They were not adjudicatory.
14 HR. MALSCH:
Which ones, though?
15 MR. TOURTELLOTTE:
The one on the Supreme 16 Court case.
17 HR. HALSCH:
Yes, but that was rule making.
18 HR. TOURTELLOTTE:
For rule making.
19 MR. HALSCH:
Rule making, yes.
20 CHAIRMAN PALLADIN0s What do you want to say, 21 with no --
22 COMMISSIONER AHEARNE:
No, I was just 23 questioning it.
24 CHAIRMAN PALLADINO:
No flexibility by NRC7 25 COMNISSIONER AHEARNE:
No, I was not going to s.
I ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 modify it.
I-was just trying to understand what was 2
neant.
But you can leave it that way.
If people are 3
going to get concerned about it a few word changes that 4
ve are going to make here are not going to solve the 5
problea - if there is one.
6 MH. TOUBTELLOTTE:
I as beginning to get a
7 troubled by " proceedings" too.
8 The word that really bothers me has been 9
" entirely" adjudicatory.
That means, there has 10 absolutely been nothing that has not been adjudicatory.
11 The rule-making a t Vermont Yankee, was that 12 not a licensing action?
It was not a licensing action.
13 HR..MALSCH4 No.
14 ER. TOURTE1LOTTE:
Okay.
15 COMMISSIONER AHEARNE:
At the bottom of the 16 page when you say, "Indeed its feature of using informal 17 proceedings," et cetera, "is not unlike the objectives 18 of the prehearing procedures provided before in the l
19 Commission's rules of practice."
20 It was not clear to me whether that was a war 21 of saying, "While this is a very interesting f eature,
22 b ut look, we already do it. "
Is that what was meant?
23 MR. MALSCH:
No.
I believe -- again I have to s -
24 say we looked at this limited draf t.
But a s I read it, i
l 25 it is a weak comparison, "not unlike."
~..
ALDERSON REPORTING COMPANY. INC.
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It also is not exactly like..
And again, if s
2 rou like we could provide some further elaboration
,r^)
3 exactly how this would differ from what is current
~J 4
summary dispositon practice.
5 COMMISSIONER ASSElSTINE But in many respects l
6 I think it is f air to say that this is-somewhat similar 7 'to the kind of prehearing process.
The legislative-type 8
portion of the proceeding tends to be like or has the 9
same objectives as the prehearing process of our present 10 rules. recognizing that we are making some adjustments 11 in terms of the opportunity to get to the trial-type i
12 hearing.
13 ER. TOURTElLOTTE:
As a matter of fact,. I
~
(
14 would almost envision in the application of a hybrid 15 process that you could start the hearing portion of the 16 adjudicatory proceeding almost immediately after the 17 oral phase was completed because all discovery should 18 have been completed and all pretrial motions should have
\\
19 been completed, and they should be able to set the trial 20 for hearing.
~ -
21 So, in effect it does not, as some critics 22 might suggest that if you have an adjudicatory hearing 23 in addition to the first pa rt, that you would actually 24 be lengthening the process.
I am not sure that it would 25 lengthen the process, it would be pretty much the same.
l l
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-234S
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1 There is also a term that you could use in 1
terms of formal and trial-type, one that makes it clear 3
under the APA what you are talking about is an
)
4 on-the-record, formal on-the-record trial-type hearing.
5 CHAIRHAM PALLADIN0s.
You are proposing a 6
change there?
7' MR. TOURTELLOTTE:
Well, it would make it 8
c-lear up where you talk about adjudicatory, entirely 9
adjudicatory, i.e.,
formal --
10 CHAIRMAN PALLADINO:
Where are you?
11 MR. TOURTELLOTTE:
The eighth line down.
11 CHAIRMAN PALLADINO:
From th e top.
I see.
13 Okay.
And where are you going to put it?
14-MR. TOURTELLOTTE:
After the word " formal."
15 CHAIRMAN PALLADINO:
In front of 16
" adjudicatory."
17 MR. TOURTELLOTTE:
In front of " trial-type."
18 MR. MALSCH:
Actually, it would be a little 19 more precise to say, "The hearings have been entirely on l
20 the record, A.a., f o rmal trial-type hearing."
l 21 MR. TOURTELLOTTE:
Yes.
T 22 COM51SSIONER AREARNE:
Yes.
1 23 MR. MALSCH:
Because by definition any hearing 24 of whatever type involving a license is an adjudicatory 25 hearing, if you want to get technical about it.
ALDERSoN REPORTING COMPANY,INC,
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41 e
i) 1 CHAIRHAN PALLADIN04 Did you make any changes s
1 on the bottom of page 77 3
HR. TOURTELLOTTE No.
{])
4 CHAIRHAN PALLADINO:
Are you going to page 87 5
HR. TOURTELLOTTEs Yes, eight.
6 CHAIRHAN PALLADINO:
In the second paragrapn a 7
couple of editorials.
The first line says, "Section 8
189(c) provides that in certain hearings, including any 9
hea ring," at cetera.
The suggestion was to cross out 10
- certain" and put in " hybrid."
11 So, it reads,."Section 189(c) provides that in 12 hybrid hearings, including any such hearing on 13 application for the issuance of construction permit," et 14 cetera.
15 HR. HALSCH:
That gives rise to a question 16 whether our statutory authority to conduct hybrid 17 hearings is confined to the ones listeds here, or would 18 it extend beyond that.
\\
19' I think that issue is raised by use of the 20 word " including."
If the listing here on the middle of l
21 the page tracks every single type of proceeding listed 22 in tha statute, I don't' think we should use the word 23 "in clud ing. "
24 CONNISSIONER AHEARNE:
Yes.
25 COMMISSIONER ASSELSTINE:
Let me suggest an ALDERSON REPORTING COMPANY,INC, NYMMXXK45@RRE@R338?B1990-M
42 O
i a1ternative forautatio that, I thinx,.ou1d s 1.e that 2
problem.
3 Add the following at the beginning of that p
v 4
paragrapht-
"If the Commission elects to employ hybrid 5 hearing procedures, subsection 189(c)," an'd then I would 8 just cross out the listing of all those different types 7 of licenses and pick up down on the fif th line of that 8 paragraph at the and, specify that, "the Commission 9
shall provide the parties to the proceeding with an 10 opportunity to present their views."
11 CH AIBH AN P ALLADINO:
Why are you crossing out 12 the list because it is cove red in --
13 COHNISSIONER ASSELSTINE:
Because we don't
~
14-want to neressarity restrict or imply that the use of 15 the hybrid procedures are restricted to that listings 18 tight?
17 5B. HALSCH:
Well, I think the statute, as I 18 look at it, is kind of ambiguous as to whether -- I 19 mean, subsection (b) of the sta tute says, "The 20 Commission say conduct hybrid hearings," but then it 21 says, " consistent with paragraph (c) and (d)."
22 And then (c) only mentions specific kinds of 23 applications.
24 COMMISSIO N ER ASSELSTINE:
Right.
25 MR. MALSCHa For example, the issue wo uld be ALDERSON REPORTING COMPANY,INC.
91M49%
43
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1 whether the Commission could under the statute hold a 2
hybrid hearing in an enforcement proceeding, or at least 3 have the discretion to hold a hybrid hearing in an
)
4 enforcement procee' ding.
5 COHHISSIONER AHEARNEa How could you get there 6
from the-var the-statuse is written?
7 HR. HALSCHa Oh, I think the better reading of 8
the statute is that you are confined to the ones --
9-COMMISSIONER AHEARNE'4 Jia, how would you 10 change this?
You would say, "provides that in hybrid 11 hearings --
12 COMMISSIONER ASSELSTIN E:
Let me change that..
13 CHAIRHAN PALLADIN0s He had a phrase in front (3
~
14 of this.
15 COHHISSIONER ASSELSTINEa I did.
I guess what 16 I was thinking about is to take into account, make it 17 clear to resolve any ambiguity on that section.
Maybe 18 it would be possible to break this down, this long 19 sentence, into two separate sentences by sayinga 20
" Subsection 189 ( c) would permit the Commission to employ 21 hybrid hearing procedures," and then pick up with, "on 22 any application for the issuance of..." and down 23 through, "for the design approval under Section 194,"
24 and put a period.
25 And then say, " Subsection 189(c) specifies i
ALDERSON REPORTING COMPANY,INC,
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1 that the Commission shall provide the parties that in 2 any hybrid hearing the Commission shall provide."
3 COMMISSIONER AHEARNE:
Yes.
There is one
(~)
v 4 provision in the bill that is not in the section by 5 section, I think the bill includes a mendments.
6 COMMISSIONER ASSELSTINE And that should be 7 added in too ?
8 MR. HALSCH:
Amendments on renewals.
We vill 9 have to check and make sure it is the same.
10 CHAIRMAN PALLADINO:
You are going to work on 11 this part, Marty?
12~
MR. MALSCH:
Yes.
13 CH AIRM AN P ALLADINO:
Okay, do you want to go
\\
14 on?
15 HR. TOURTELLOTTE:
Is that all for page 87 16 COMMISSIONER AHEARHE:
Yes.
17 MR. TOURTELLOTTE:
Page 9?
Page 107 18 CHAIRMAN PALLADINO:
On page 10 what is 19 crossed out is the first long pa ra g ra ph, righ t?
20 MR. TOURTELLOTTE:
Yes.
21 CHAIRMAN PALLADINO:
And 189(e) remains, the 22 one that says, " Subsection.189" is retained.
23 MR. TOURTELLOTTE:
Yes.
P ag e 11?
24 CHAIRMAN PALLADINO:
A couple of editorials in 25 the second paragraph, third line after "and" it is ALDERSON REPORTING COMPANY,INC,
. d!$ EURERio A% @.W, WC@HIN@ TON, D.C. 20024 (202D 554-2345
45 1
suggested that the word "that" be inserted, "and that 1 the Commission is authorized to issue."
l T'N, 3
Down near the bottom of the page, third lin's V
4-up we speak of a "custos design."
The suggestion is to F replace " custom" by a " site -specific"~ design.
I am not-l 6 sure whether that is an improvement or not.
T COMMISSIONER ASSELSTINE:
I think just "a 8 design" because 'ou don 't n eed a design.
9 CHAIRMAN PALLADIN0t But you need a design i
10 envelope.
11 COMMISSIONER ASSELSTINEt Fell, the site 12 permit will provide the envelope and later on you 13 provide the design that will fit within tre envelope,
.sQ 14 yes.
15 MR. TOURTELLOTTE:
I may want to change -- oh 16 no, this is a site permit.
17 I was concerned about production and 18 utilization facility, but we changed that back to that.
19 COMNISSIONER AHEARNE:
Right.
20 COMMISSIONER ASSELSTINE:
That's right.
21 CHAIRMAN PALLADINO:
If we cross out l
22 COMNISSIONER ASSELSTINE:
Just stick in 23
" custom" and put in "a design."
24 CHAIRMAN PALLADINO:
"A design."
25 COMMISSIONER AHEARNE:
And somewhere put in a ALCERSON REPORTING COMPANY,INC,
46 I )
1 sentence to say this envelope idea.
2 COMMISSIONER ASSELSTINEs Yes that would be s
3 worthwhile, yes.
)
4 MR. TOURTELLOTTE:
It migh t read a little 5
better if we said, "a facility design" than just "a 6 design."
7 COHHISSIONER AHEARNEs Yes.
8 CHAIRMAN PALLADINO4 Okay.
9 COMMISSIONER AHEARNE:
And Marty, you will put 10 a sentence in on the envelope concept?
11 MR. NALSCH:
Sure.
Il COMMISSIONER ASSELSTINE:
Oh, the envelope 13 concept is on page 12.
b,~
14 ER. TOURTELLOTTEa At the bottom.
15 HR..HALSCH:
I had a question whether you 16 vanted to be that specific for some of these items.
17 This is lif ted over from previous explanations and I 18 wasn't sure.
19 COHNISSIONER AHEARNE:
Yes.
20 COMMISSIONER ASSELSTINE:
I had the same 21 question about whether we really want to be that 22 specific.
23 CHAIRMAN PALLADIN0s You mean in the lower 24 half of pag e 12?
25 COMMISSIONER ASSELSTINE:
Yes, in that listing m
ALDERSON REPORTING COMPANY. INC.
400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554 2345
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1 of the elements.
It does say it is currently envisioned.
2 HR. HALSCH:
For example, that would be 3
inference suggesting that it is currently envisioned we
[]}
4 will do an impact statement which discussed some of the 5
nonradiological parameters.
6 COHNISSIONER AHEARNEs Well, I think it is.
7 It says currently envisi:ned by me and it ought to, I 8
think, be by the Commission that this envelope would 9
include nonradiological as well a.s radiological.
" hat 10 seems to be sensible.
11 Although I think that when you get down to the 11 proposed general location of each facility on the site ---
13 HR. TOURTELLOTTE:
You could insert-the words O
14 after the word " including", "but not necessarily limited 16 to," so that you would not lock yourself in.
16 Or you could even say, "an envelope of 17 parameters such as," which would not.
l 18 COHHISSIONER AHEARNE:
That would be better.
19 COHNISSIONER ASSELSTINE Yes.
20 COHHISSIONER AHEARNE:
Even then I guess I 21 would strike number three, the location of the facility.
22 COHHISSIONER ASSELSTINE:
Yes.
23 COHHISSIONER AHEARNE:
And I don't understand l
ss 24 the word " proposed" in number four.
l 25 And I am not sure about that "each such
~/
?
l ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
48
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1 facility" because under my concept an envelope is that 2
you would say, "here is the" - for example on the 3
maximum levels of radiological thermal effluents from
{])
l 4
this site."
5 COHNISSIONER ASSELSTINE I agree with.that, l
l l
6 res.
T CHAIRMAN PALLADIN0s In two, cross out 8
" pr op os ed. "
9 CONMISSIONER AHEARNE4 Yes.
10 RR. TOURTELLOTTE:
Which " proposed?"
11 COHHISSIONER ASSELSTINEt.
Under four.
12 CHAIRMAN PALLADINO:
Under four.
13 NR. TOURTELLOTTE:
On four?
O 14 COMMISSIONER AHEARNE:
The concept of an 15 envelope,says that you don't have to be very specific 16 and that almost sounded like the applicant would have to 17 have a proposed plan.
18 NR. TOURTELLOTTE:
Yes.
Well, is it the 19 general sense of the Commission to take out three?
20 COMMISSIONER ASSELSTINE:
I would agree to 21 take out thre.
22 CHAIRMAN P ALL ADINO:
Yes, it would not bother l
23 me to take it out.
24 COMMISSIONER ASSELSTINE:
It is worth thinkin'g 25 about on this list.
Both previous licensin g reform ALDERSON REPORTING COMPANY. INC.
400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554 2345
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1 bills and I think the DOE bill include this kind of a 1 listing actually-in the bill language..
3 I think we ought to be pretty certain if we
(])
& are including our own list in the section by section 5
that those are the kinds of elements that we are 6
comfortable-with because it might end up in the-bill T language itself.-
8 COHNISSIONER AHEARNEs That cuts both ways.
9 If you don't put s list in and there is a push to put it 10 in the bill,then you have list your opportunity.
11 COMMISSIONER ASSELSTINE4 That's righ t.
12 CORNISSIONER AHEABNE:
So, I think you are 13 right, you want to make sure that this is our best O
14 estimate of the right list.
15 COMMISSIONER ASSELSTINE4 Yes.
Yes, that was 16 my only concern.
17 COMMISSIONER AHEARNEa It might be useful to 18 perhaps ask NRR.
19 COMMISSIONER ASSELSTINEa I think that would 20 be helpful.
I mean, even if you look at item number 21 seven, I mean, it almost looks like bill language, "such 22 other information as the Commission may by rule or oder 23 require."
1
(,
COMMISSIONER AHEARNEs Yes.
l k_ --
24 l
25 MR. TOURTELLOTTE:
This is not a nev l
..l l
ALDERSON REPORTING COMPANY,INC, l
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discussion 2
COMNISSIONER AHEARNE:
No.
3 HB. TOURTELLOTTEs We did this same thing last 4
year on the standardization.
5 COMMISSIONER AHEARNE:.
I recall the first time 6
was in Narch of
'77.
7 CHAIBMAN PALLADINO:
You have been around a 8
long time.
9 Well, we are going to iclude the list.
10 COMMISSIONER AHEARNE:
Yes.
11 COMMISSIONER ASSELSTINE:
I am for keeping the 12 list, and I as for keeping it in the section-by-section 13 analysis.
I agree with John, I think we ought to touch O
14 base with NRR just to make sure that this list really 15 does reflect the kinds of elemewnts that we would expect 16 to see covered in the envelope.
17 CHAIREAN PALLADINO:
Can I ask you a question 18 on the top of page 12 where it talks about, "However, if 19 fees cannot be defrayed because a site is not used 20 during the initial ten-year period, the holder'of the 21 site permit must pay the full amount."
22 Over ten years the fees have changed.
And I 23 am asking this only as a question from my own 24 background.
If the fee were "x" when it first cam in 25 and "y" when he has to pay the full amount, which does ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
51
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he pay in your mind?
s 2
COMMISSIONER ASSELSTINE:
I would think the 3
original amount because the concept is embedded in the 4
bill, cost recovery.
If it cost a certain amount to 5
issue the site permit to start with and the fee 6
atructure at that time was based upon cost recovery, it.
7 seems to se that is the amount.you recover.
8 Tou don't go back and recover what it cost to 9
do it ten years after that, or twenty years after that.
10 CHAIRMAN PALLADINO:
Because he is paying with 11 cheaper dollard.
12 COMMISSIONER,ASSELSTINE:
I guess ten years 13 after that.
14 CHAIRMAN PALLADINO:
I did not want to get 15 into that issue.
16 COHNISSIO'!ER AHE ARNE:
Constant dollars?
17 CHAIRMAN PALLADINO:
What?
18 CONNISSIONER ASSELSTINE:
Constant dollars.
19 CHAIRMAN PALLADINO:
Const an t dollars.
20 (Laughter) 21 COHNISSION ER AHEARNE:
You are right.
22 CHAIRHAN PALLADINO.
Interest.
Yes, I think 23 the concept is it should be the beginning.
But I think 24 there are a lot of questions associa ted with this.
25 COHdISSIONER ASSELSTINE:
Yes.
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
52 0
1 Cons 1SSI0nEn iHtAanE, erice Anderson do11ars.
2 (Laughter) 3 CHAIRMAN PALLADINos But I did not propose any 4 change.
5 MR. TOURTELLOTTEs Page 12.
6 CONNISSIONER AHEARNE:
If you told me, Marty, 7 what the meaning is of the last sentence in that top 8
paragraph..
9 HR. HALSCH:
That is-just to preserve our 10 authority to promulgate things, for example such as Part 11 100 12 COMMISSIONER AHEABNE:
Well, are you saying 13 that without that language it could be read as saying,
, (7 14-the only way we could publish a regulation concerning 15 sites would be with respect to the envelope and nothing I
16 els e?
17 MH..MALSCH:
I would not read it that way.
I 18 think this is kind of --
\\
19 CONMISSIONER AREARNE:
Protectionist?
20 ER. H AI5CH:
It may be extra protectionist.
21 It might not be necessary'.
I would not read even in the 22 absence of the statement, there is nothing in the 23 statute that is taking away our traditional rule-making
(~.
t.s 24 authority.
l 25 CONHISSIONER AHEARNE:
That is all for which ALDERSON REPORTING COMPANY,INC,
53
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1 it'is there.
2 MR. MALSCHs That is all it is designed to do.
{])
3 COMMISSIONER AHEARNE4 All right.
4 MR. TOURTELLOTTEs.
Fourteen?
5-CHAIRNAN PALLADINO4 Jin or Marty, don't you 6
need to refer to the-ten-year period of validity for 7 initial site-permit somewhere in the top area?
8 MR. NALSCH:
We should.
I don't remember --
9 we might have been vorking from the statute but have 10 dropped it off by mistake.
We should have something in 11 there ab'out that..
12 MR.- TOURTELLOTTE:
That is in 193(a) now.
So, 13 it.-hould be back on page 11.
O' 14 CHAIRMAN PALLADIN0s It seems like it belonged 15 here as well..
16 I have another question toward the end of the 17 middle paragraph.
It talks about renewals.
Are there 18 any cost deferrals on renewals?
~
19 MR. MALSCHs I don't think so.
20 CHAIRMAN PALLADIN04 Suppose --
21 MR. TOURTELLOTTE:
My quess is that you would 22 continue, the original deferral would be countinued, 23 would it not?
N-24 CHAIRMAN PALLADINO:
Well, I don ' t know.
I 25 thought you wre deferring i t if you say at the end of ALCERSON REPCRTING COMPANY,INC, 400 yRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
54
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1 ten years if there is no applicant to pay the full fee.
1 Isn't that what it says?
3 COHHISSIONER ASSELSTINE:
Well, the deferral
)
4 is for not only the filing or issuance fees for the 5'
application for the site permit but also for amendments 6 or renewals.
7 CHAIRHAN PALLADINO:
Where is that?
If I go 8 back to page 12, in the middla of the page.it says, 9 "However, f ees cannot be defrayed because the site is 10 not used during the initial ten-year approval.
The 11 holder of the site permit must pay the full amount."
12.
So, if I interpreted that sententence 13 correctly,.then he would pay it at the end of ten years 14 even if he gets a renewal.
If that seems fair, then it 15 is ali right.
16 Now, did y.ou get the impression it would 17-continue if it was renewed for five, the deferral were 18 renewed?
I 19 MR. MALSCH:
Actually it reads, though, that 20 if it is not used within the initial ten-year period --
21 COBHISSIONE,R ASSELSTINE:
That's right.
22 MR. MALSCH:
-- the entire fee becomes due and 23 payable.
24 COMMISSIONER ASSELSTINE:
That is right.
25 MR. MALSCH:
The statute does not make the ALDERSON REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202T 554-2345
55.
O i
sinuar st.tement.ith respect to rene.a1 fee.
1 CHAIRMAN P ALL ADI30s.
You pay the renewal fee.
3 MR. MALSCH:
Well, no, the renewal fee can be 4 deferred also.
But under the statute there is not a 5 similar statement-that if the thing is not used during 6 the period of renewal the-entire thing becomes. due and 7 payable.
8 COHHISSIONER ASSELSTTNEs.
And also, you cannot 9 defer the original fee on the issuance of the i
10 application if you renew the site permit.
You have to i
11 pay at the end of the ten years.
t 12 CHAIRMAN PALLADIN0s Where does it say the 13 renewal fee can be deferred?
14 MR. MALSCH:
it is 193(b).
It says, 15 "No twithstanding and so forth, "No application i
16 filing or issuance fee shall be required for an t
17 application for a site permit, amendment or renewal of a 18 site permit authorized to allocate costs," and so forth.
19 CHAIRMAN PALLADINO:
Okay.
Well, then we need 20 some statement in here similar to the statement on the 21 ten-year period, so far as renewal is concerned.
22 MR. MALSCH4 Well, if we do that we should 23 probably make a conforming change in the statute, also.
24 COMMISSIONER ASSELSIINE:
If you want to defer l
25 the original fee?
l ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
56 1
CHAIRNAN PALLADIN04 No, I was just --
1 COMMISSIONER AHEARNE:
I would not favor that.
3 CHAIRMAN PALLADIN0s No, I don't want to defer 4 it beyond the ten years, then he pays it.
5 COMHISSIONER ASSELSTINE:
Yes.
6 CHAIRHAN PALLADINO4 Nov-he-comes-and gets a 7 renewal deferral, and this does not say that if there is 8 no taker he has to pay it all.
That is the part.
9 CONNISSIONER ASSELSTINEs Oh, okay.'
10 HR. HALSCH Right.
11 CHAIRMAN PALLADINOs.
No, I just wanted to make 12 sure we collect.
13 HR. TOURTELLOTTE:
All you are saying is that O
14 ve ought to clarify what the situation is in th e sec tio n-15 by section.
.It.is not that clear.
16 COMMISSIONER ASSELSTINEa But I think then we 17 probably need to add an additional sentence to the bill 18 language too, saying at the end of the renewal period 19 you go back and collect any deferred fee from the l
20 renewal.
21 MR. TOURTELLOTTE:
Are we on page 157 l
22 COMMISSIONER AHEARNE:
I had a question right 23 at the bottoa of pago 14 that runs over on page 15.
24 It says, "In the absence of significant new 25 information relevant to the site indicating that the ALDERSON REPORTING CCMPANY,INC, 400 VIRGINIA AVE S.W. ' "HINGTON, D.C. 20024 (202) 554 2345
57
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1 site vill not comply, the Commission shall renev. the 2
site permit."
(])
3 Prior in the section by section the statement 4
is made which tracks with our discussion yesterday, 5
renewals would be based on regulations in effect ast the 6
time the renewal is requested.
That, I think is T inconsistent with --
l 8
COHNISSIONER ASSELSTINE:
-Plus, didn't we 9
delete yesterday the reference to significant new 10 information anyway?
So, that should be revised, yes.
11 CHAIRHAN PALLADINO:
What is the suggestion?
12 COHNISSIONER AHEABNE:
Just to bring it up to 13 date to agree with what the decision was yesterday.
O' 14 CHAIRMAN PALLADINO:
Page 15 talks about 15 Subsection ( f) of Section 193, assures a site approved 16 under this section may be used for an alternative type 17 of energy f acility or any other purpose.
18 The concern I had was, does not the Commission 19 get involved in any way?
For example, suppose there is 20 an outstanding site permit and they start to use it for 21 other uses.
Tha't may invalidate the site permit.
22 CONHISSIONER ASSELSTINEs Tha t 's righ t.
23 CHAIRHAN PALLADINO:
There is nothing that 24 says the Commission has to be informed.
Somehow it 25 seems a little loose-ended.
~,
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1 HR.. MALSCHs We,are just picking up a sentence 2
in the statute where it says, "Other. use is not 3
considered.
The a pproval may, however.... of the site
(])
4 permit or the conditions of its use for siting as the 5
Commission may determine."
6-CHAIRMAN PALLADIN0s Okay.
7 HR. MALSCHa-We should probably add that into 8
this.
9 CHAIRHAN PALLADINOs I think it would be worth to putting that there, otherwise it was open.
It sounded 11 open-ended.
12 Ihen, in the middle of the long middle 13 paragraph, just about the middle of the page a few
,(s 14 editorials.
15 Let's see, about the middle of the page it 16 starts, "However, since need for power and alternative 17 energy source issues probably cannot be assessed in the 18 absence of a specific application for a facility, these 19 environmental reviews would not need to be done."
20 It is suggested that "these" be crossed out l
l 21 and say, " environmental reviews of these issues would 22 not need to be done at the site at the site approval l
23 stage."
\\
c ~.,
1 24 COMMISSIONER AHEARNE:
Yes.
25 CHAIRMAN PALLADINO:
It is also suggested in 1
l ALDERSoN REPCRTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 5's 2345
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1 the next sentence that it read as follows, "In addition,
2 an environmental impact statement may not be
,r')
3 appropriate," and it is suggested that these words be v
& added, "and would not be required if the site is 5
reviewed for a limited aspect."'
8 COMMISSIONER AHEARNE4 Jim, if you do as you 7
said earlier, pull the NEPA words into one, then this 8
would have to be revised.
9 CONHISSIONER ASSELSTINE:
That's right.
10 MR. TOURTELIOTTEa Page 167 11 CHAIRHAN PALLADINO:
An editorial on th fifth 12 line down.
The santence says, "It would not preclude a 13 holder of a site permit to seek an amendment," may be il 14 improved by saying, "the hoicer of a permit from seeking i
15 an amendment would not preclude the-holder. "
to COMMISSIONER ASSELSTINE:
Yes.
17 CHAIRHAN PALLADINO:
So, change "to" to "fron" 18 and make " seek"
" seek."
19 MR. MALSCH:
There is another comment on the 20 bottom of 15 and the top of 16.
The provision regarding 21 the opening under 192(a) and 194(f) is or the same as 22 the one under 185(b).
l Under 193(h), 194(f) you may not re-open an 23 l
24 issue that was considered and decided unless you make a 25 substan tia1sho wing, whereas under 185(d) that 9
ALDERSON REPCRTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554 2345
60 OJ 1
substantial showing applies to issues which were not and 2
could not have been considered.
3 Now, I had a question whether that difference
()
& vas intentional.
5 CORBISSIONER ASSELSTINE:
Oh, wait a minute.
6 HR. HALSCHs Yes, 185(d) simply keys into 189.
7 COHNISSIONER AHEARNE4 No, it doesn't.
8 HR. HALSCH:
It doesn't?
9 COHNISSIONER ASSELSTINE:
Now, 185(d) is the 10 combined perait and operating license.
These are all l
11 the same.-
12 HR. HALSCH:
Okay, you are right.
13 COMMISSIONER ASSELSTINEs The one tha t is O
14 different is the one in 189.
15 HR. HALSCH:
Okay, okay.
You have a standard 16 for re-opening in 185(d) which says generally you will 17
-- and 194 and 193 durinc the site permit and design 18 approvals which is slightly different than the standard 19 for re-opening hearings in 189 i
20 I just wantad to make sure you are aware of 21 tha t.
I was not certain that was intentional.
22 COMMISSIONER ASSELSTINE4 I think it is 23 because of the additional element for the purposes of 24 the hearing decision about the issue, foreclosing issues 25 that could have been raised.
In each of the others ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTCN, D.C. 20024 (202) 554-2345
61 1
where you are talking about re-opening a combined permit 1
and license or a sites approval, or design approval, yu
(]}
3 are talking about re-opening a final determination that 4
was in fact made.
5 On the. hearing section you are talking about 6
precluding the relitigation of issues not only that were 7
decided in an earlier licernsing proceeding but also 8
those that could have been decided.
9 So, I think that is why there is a difference.
o 10 MR. HALSCHs Okay.
11 NR. TOURTELLOTTE:
Narbe that ought to be 12 explained.
13 COMMISSIONER ASSELSTINE:
I think it will be.
~
14 MR. TOURTELLOTTE:
If it is not clear to the 15 general counsel's office, it probably ought to be 16 explained.
17 COHNISSIONER AHEARNE:
Yes.
18 CHAIRMAN PALLADIN0s Is somebody going to 19 rewrite that?
20 ER. HALSCH:
We will take a crack at an 21 explanation.
22 CHAIRMAN PALLADIN0s Any more on that page?
23 MR. TOURTELLOTTE:
Page 17?
24 CHAIRMAN PALLADINos There is use of the word 25 "most " six lines do wn.
" Typically, a facility design ALDERSON REPORTING COMPANY,INC.
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1 should be described in such a manner that it could be 2
used at most sites."
3 "Most" gives me a problem and gives some of my
(]
4 colleagues problems.
It could be used at more than one 5
site.
"Typi: ally, a facilty design should be described 6
in such a manner that it could be used at more than one 7
site with a minnum," et cetera.
8 Any others on that page?
9 HR. TOURTELLOTTE:
Eighteen?
10 MR. HALSCH:
Just a second.
On the bottom of 11 17, in light of our most recent discussi6n on 189 ve 12 ought to conform the bottom line on page 17 so that it 13 exactly tracks 189.
14 CorMISSIONER ASSE1STINE Yes.
15 COMMISSIONER AHEARNE:
In what way would you 16 do that, Marty?
17 MR. HALSCH:
I would say something like, 18 "However, issues which were not and c$uld not have been 19 considered and decided would not trigger new 20 opportunities for hearing at the time unless..."
21 COMMISSION ER AHEARNE:
Okay.
22 MR. MALSCH4 I will have to check it to make 23 sure it is exactly right, but that would be my idea 24 anyway.
25 MR. TOURTELLOTTE:
Are you on 187
- t. -.
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
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1 HR. TOURTELLOTTE:
Yes.
2 CHAIRNAN PALLADIN0s Anything else?
3 MR. TOURTELLOTTEa Nineteen?
(])
4 CHAIRHAN PALLADINO:
I presume these other 5 heavy insects are already in there.
6 ER. TOURTELLOTTE:
Twenty?
7 CONNISSIONER AHEARNE I think 20 has to be 8
revised to pick up the dir ussion yesterday on the 9 question of significant new information.
10 COHNISSIONER ASSELSTINE:
Yes.
11 COEMISSIONER AHEARNE:
And down towards the 12 bottom it is the same, I think, the discussion we had i
13 earlie r..
The insert was to say a proceeding is not 14 limited to a hearing.
However, if you end up re-doing i
15 the other one, you ought to look at that also.
16 NR. MALSCH:
Yes.
17 CHAIRNAN PALLADINoa Jim, at the beginning of 18 the page should we not have a reference for the time l
19 period, say approval remains valid?
20 MR. MALSCH:
Yes.
21 NR. TOURTELLOTTE4 Beginning at what page?
22 CHAIRMAN PALLADINO:
Well, a note at the top I
23 of the page, need to reference to a time period for 24 which approval remains valid.
25 COMMISSION ER ASSELSTINE4 That probably should
(
l 1
ALDERSoN REPORTING COMPANY,INC, l
400 VIRGINIA AVE S.W., WASHINGTON, D.C. 20024 (202) 554 2345
66 h
1 be on page 18.
2 MR. TOURTELLOTTE:
That should be on page 18 3 under (a), subsection (a).
4 COHNISSIONER ASSELSTINEa Also, we may have 5'
the same issue here on deferral of fees for renewals.
6 MR. TOURTELLOTTEa As before.
7 COMMISSIONER ASSELSTINE:
Right.
8 MR. TOURTELLOTTE4 Actually, practically all 9 the comments that are made relative to 193 apply to here to because it is a companion section and parallel.
11 Page 217 12 CHAIRHAN PAILADIN04 There is one that begins 13 Subsection (a) of Section 193.
Bill said that it should 14 be 194.
15 MR. TOURTELLOTTE:
Yes.
16 COMMISSIONER AHEARNEs Yes.
17 CHAIRMAN PALLADINO:
And the same one for 18 Section (I).
19 COMMISSIONER ASSELSTINE:
And I am going to 20 develop som language on the variance and how that fits 21 in with the procedural elements.
22 CHAIRMAN PALLADINO:
Which is that?
23 COMMISSIONER ASSELSTINE:
That would be in
-.~
24 addition at the bottom of page 21, as we discussed 25 yesterday.
.~
(I ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
65
(])
1 CHAIRMAN PALLADINO:
Under conforming 2 amendments?
3 COHNISSIONER ASSELSTINE:
Just before the
)
4 conforming amendments, the last parvagraph before that.
5 CHAIRHAN PALLADINO:
Oh, yes.-
6 MH. TOURTELLOTTE There was a discussion 7 yesterday also that this section-by-section analysis I
8 would be " beefed" up relative to the business on genuine 9 and substantial dispute of fact.
10 COHNISSIONER ASSELSTINE:
That is right.
11 HR. TOURTELLOTTE:
Appearing at the bottom of
[
12 page 12 and the top of page 13.
l 13 COHNISSION ER ASSELSTINE:
Right.
G 14 CHAIRMAN PALLADIN0s Are you going to 22?
15 ER. TOURTELLOTTE:
Yes, 22.
16 CHAIRMAN PALLADTN0s Just a note, do we need 17 any reference to definitions as standardized design and 18 thermal neutrol power generation facility?
\\
19 MR. MALSCH:
Yes, we should add those in.
We 20 also need to add a more explicit discussion of 21 conforming amendments, depending on how we come out on l
22 that.
Design approval is a like question that deserves 23 some explanation.
24 CHAIRMAN PALLADINO:
Yes, and the bill has a 25 note here in reference to paragraph 208 on ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
66
)
1 implementation, including backfitirg.
2 NR. HALSCE:
Yes, we do not have any section
({]}
3 analysis of the regualtian provision because we did not 4 have that in the bill at the time we were doing the 5: section analysis.
But that would have to be added in, 6 also.
7 CH AIRM AN PALLADIN0s Okay.
8 MR. HALSCH:
One other kini of interesting 9
question that comes up if you look at the conforming 10 amendment to the ACES review provision.
And that is we 11 have conformed it by adding into the list of things 12 requiring a mandatory ACRS review site permits and 13 design approvals.
That is straight-forward enough.
',,s
~'
14 But there is sort of embcdied into what we 15 conformed a policy choice not to have mandatory ACRS 16 review prior to operation in the case of the design, 17 construction permit, and operating license.
18 I was not sure the Commission had focused on 19 that as an issue.
20 CHAIRMAN PALLADINO:
When the ACRS gives us 21 comments on operating license, don't those comments also 22 include any comments on the deg ree to which construction 23 has conformed with design?
24 MR. HALSCH I honestly don't know what they 25 have been addressing in their current letter.
l ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D:C. 20024 (202) 554 2345
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1 COMMISSIONER AHEARNE:
No.
No, they don't.
2 CHAIRHAN PALLADINO:
Do they only discuss the 3
issues that are brought up?
I as trying to,think.
)
4 COHNISSIONER AHEARNE:
Well, no, they address 5 in their view is this plant ready to operate.
6 CHAIRHAN PALLADINO:
O ka y..
i 7
COMMISSIONER AHEARNE:
And the issues tend to 8
be the ones that they have iden tified as weak areas.
9 So, sometimer they focus on the operating staff.
10 Scaetimes they may focus upon some review items that the 11 NRR has said they have not yet finished completion of 12 the review in that stage.
13 CHAIRHAN PALLADINO:
I think we would want (m
14 their comments.
l 15 COHNISSIONER AHEARNE Well, that was what I 16
-- I tried to raise that yesterday.
I said that it was 17 more than a conforming amendment.
18 HR. HALSCHs Yes, as I looked at it and also, 19 I had a brief discussion with Harvin Gasky this 20 morning.
He wanted to know if he could look at it and I 21 gave him a copy.
He asked me that question.
He said, 22
" Gee, that is an interesting issue I had not thought of 23 before."
(_
24 COMMISSIONER AHEARNE:
I did not phrase it 25 very well.
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE S.W WASHINGTON, D.C. 20024 (202) 554-2345
gg r~s
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1 COHEISSIONER ASSELSTINE:
I would agree to 2
providing the opportunity for ACRS review then, too.
A 3
Tes.
')
4 HR. MALSCHs You can always ask them.
But do 5
rou.want to have so-called mandatory ACRS review prior 6
to operation?
7 CONNISSIONER AHEARNE:
I think so.
8 COHHISSIONER ASSELSTINE:
I would agree.
9 COHNISSIONER AHEARNEa Because otherwise you to are going to have to explain why you don't want it.
11 CONMISSIONER ASSELSTINEa That is right.
12 COMMISSIONER AHEARNE:
And you will find the 13 ACRS, they have already told as that they no longer 14 support that, taking them out of the mandatory.
15 CHAIRMAN PALLADIN0s I think we are through l
16 this section-by-section analysis.
17 I am going to propose - there is quite as bit 18 of additional material to come - I was going to propose 19 tha t we try to accumulate the additional writing and 20 then put out a complete packet that would include the 21 revised letter, the bill, underscoring any additions.
l 22 There are c few additions and deletions in the l
l 23 bill.
But I would use the last one as a reference.
I
(.-
24 think that is important.
We do not want to rehash all 25 the old additions but rather just the additions since ALDERSON REPORTING COMPANY,INC,
_. _f"Ma '"'^ ^* S" *^8"'NacN, o.c. 2w24 <2o23 ss4 234s
69 i
'h 1
this review.
2 And then the section by section, and I guess I 3
would be inclined to use this as a reference.
So, if
)
4 something departs, either by deletion or addition --
5 I don't know-what your time table would be for 6
that, but I would. -- what would. be your. time table for 7
it, I will ask you and Marty?
8 COMNISSIONER AHEARNEs Well, I think 9
realistically Jim has a number of things to do.
10 CHAIRMAN PALLADIN0s.
I know.
11 C0HNISSIONER ASSELSTINE4 That's right.
I 12 think I could get all those done on Monday.
Certainly 13 the bill, the one change to the bill very quickly Monday C-14 morning and the sactior-by-section changes obably by 15 the end of the day.
16 HH. TOURTELLOTTE4 I can have it done roughly 17 after I get whatever Jim has to give me, I can have it 18 done.within two or thres hours.
19 CHAIRMAN PALLADINO:
So, could we shoot for 20 Wednesday for release to the Consission of the packet, 21 or is that too ambitious?
22 MR. TOURTELLOTTE:
Certainly, Wednesday is 23 okay with me.
24 MR. MALSCH:
The question is who is doing what 25 here.
ALDERSON REPORTING COMPANY,INC, M MTKdWmo
70 1
CHAIHHAN PALLADINO:
Well, that is why I am 2
not clear.
You drafted the section-by-section analysis.
])
3 HR. NALSCH4 And we ended up doing it.
If yo u 4
vant us to do it, we vill do it.
I had not planned on
~
5 doing it the last time and got it passed to us the last 6
minute.-
If you want us-to do it, that is fine.
7 CHAIRHAN PALLADINO:
I was going to say, you 8
do the section-by-section analysis.
You have done the 9
bill and the letter.
10 MR..HALSCH Okay.
11 CHAIRHAN PALLADINO:
You-have additions to 12 both.
13 CO MMISSION ER ASSELSTINE:
And I have addidions 14 to both.
15 HR.. M ALSCH :
Do you think we can do it by 16 Wednesday?
Okay.
17 CHAIRMAN PALLADINO:
All right.
Anything more 18 ve should discuss?
19 I have some tentative additional remarks I 20 would be glad to hand out.
21 Anything more tha t should come to us at this ZZ time?
23 MR. TOURTELLOTTE4 No.
24 CHAIRMAN PALLADINO:
All right.
Thank you.
25 We stand adjourned.
(Whereupon, at 3: 45 p.m.
the meeting of the ALDERSCN REPORTING COMPANY. INC, E
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
71
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Commission was adjourned.)
2 n
3
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/
4 5
6 7
8 9
10 11 12 13 fs
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14 15 16 17 l
18 19 20 21 22 23 24 25 ALDERSON REPORTING COMPANY,INC,
r3 UUCLEAR REGUI.ATORE CC'dMISSION Qp This is to certify that the attached proceedings before the COMMISSION MEETING in the ::atter cf:
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- Date of Proceeding:
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Place of Proceeding: washington, D. c.
were held as herein appears, and that this is the original transert;t therect for the file of the Cc==ission.
M. E. Hansen Official Reporter (Typed)
C-h, t. go,wn Official Re;crter (Signature) b i5
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