ML20032D813
| ML20032D813 | |
| Person / Time | |
|---|---|
| Issue date: | 10/29/1981 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| Shared Package | |
| ML20032D812 | List: |
| References | |
| REF-10CFR9.7 NUDOCS 8111170534 | |
| Download: ML20032D813 (58) | |
Text
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'o UNITED STATES 9
NUCLEAR REGULATORY COMMISSION n
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,e WASHINGTON, D.C. 20555 c
%,,,,,8 October 29, 1981 CFFICE OF THE SECRETARY COMMISSION DETERMINATION REGARDING PUBLIC DISCLOSURE UNDER THE GOVERNMENT IN THE SUNSHINE ACT OF:
1 Discussion of Revised Licensing Procedures Proposed Rule Change to Part 2 September 23, 1981 Pursuant to the Commission's regulations implementing the Government in the Sunshine Act (10 CFR 9.108 (c) ), the Commission, on the advice of the General Counsel, determined that the attached portions of the subject transcript should be made available to the public.
The remaining portions of the transcript have been withheld pursuant to 10 CFR 9.104 as noted below:
Page/Line thru Page/Line Exemption 4/7 4/13 10 CFR 9.104 (a) (10) 60/2 60/4 10 CFR 9.104 (a) (10) 71/2 71/12 10 CFR 9.104 (a) (10)
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Q.1 Secretary of the Commission f
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0 8111170534 811029 PDR 10CFR PT9.7 PDR
NUCLIAA RIGUI.ATORY COMMISSION e,'
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COMMISSION MEETING
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In the.%t=ar cf:
CLOSED MEETING - Ph4PTION 10 DISCUSSION OF REVISED LICENSING PROCEDURES PROPOSED RULE CHANGE TO PART 2
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DATI:
September 23, 1981 P A G,,,s :
1 - 71 AT:
Washington, D. C.
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1 1
UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION
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s 4
CLOSED MEETING - EXEMPTION 10 5
6 DISCUSSION OF REVISED LICENSING PROCEDURES 7
PROPOSED RULE CHANGE TO PART 2 8
9 Nuclear Regulatory Commission Room 1130 to 1717 H Street, N.
W.
Washington, D. C.
11 Wednesday, September 23, 1981 12 13 The Commission met in closed session, pursuant to
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14 notice, at 2
'10 p.m.
15 BEFORE:
16 NUNZIO PALLADINO, Chairman of the Commission VICTOR GILINSKY, Commissioner 17 PETER A. BRADFORD, Commissioner JOHN F. AHEARNE, Commissioner 18 19 STAFF PRESENT:
20 S. CHILK L.
BICKWIT 21 F. REMICK J.
Frye 22 A.
ROSENTHAL H. SHAPAR 23 B.
LAZO I
24 25 ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHIPS ON. D.C. 20024 (202) 554 2345
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gagCIERIEEE 2
CHAIRMAN PALLADINO The meeting will please come 3 to order.
4 The topic of today's meeting is a continuation of 5 our discussion of Revised Licensing Procedures - Proposed 6 Rule Change to Part 2.
7 It is a closed meeting I understand as long as we 8 are talking about contentions, but if we get to the 9 interrogatories and the other issues we will have to open it.
10 I thought I would return the guidance of the 11 mee ting back to the General Counsel who was doing a good job 12 of elucidating on the issues involved.
13 COMMISSIONER BRADFORD:
Fighting his way through.
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14 (Laughter.)
15 MR. BICKWIT:
I thought I would very briefly go 16 through the options that we covered last time, we got 17 through Option 3, and then move on to the remaining.
18 With respect to existing practice, what we said 19 was that there is mere'y the requirement of a specific 20 statement of the contention and a basis which supports that 21 con ten tion.
22 Under Option 1 there is added to that a 23 requirement to set forward some fact or source which 24 supports the contention, as as well to list all known f acts s
25 and sources that the intervenor expects to use in the course ALDERSON REPORTING COMPANY,INC.
f 400 V!RGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 l
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3 1 of the proceeding in support of the contention.
2 Under Option 2 the threshold is raised a little 3 beyond tha t by providing for a dismissal is there is no set 4 of conceivable facts which would support the contention.
5 As proposed by the Licensing Board, there would be 6 added to Option 2 a materiality standard which would provide 7 that the facts listed would have to add up to a basis for 8 relief.
If they did not the contention would be dismissed.
9 Under Option 3, which we were really in the middle 10 o f, the proposal was that the intervenor would have to 11 establish a t the contention stage that there exists a 12 genuine issue of material f act in order to get his
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13 con tention admitted.
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14 Notably, the intervenor would not be on notice as 15 to the contents of the application so that 12 the contents 16 of :he application were used as a proposed basis for 17 dismissing the contention, the intervenor would have a right 18 to rebut those facts as put forward by a party and accepted 19 tentatively by a Board.
20 Now, the example we have been using, and I am 21 still not convinced that we are well advised to use it, but 22 I think we need something, is the one that is attached to 23 our memo of September 1 'th.
24 Under this example, if the intervenor comes s
25 f orward with a rather sparse pleading, as indicated in this ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., J.W., WASHINGTON. D.C. 20024 (202) 554-2345
4
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1 attachment, he survives'until the applicant comes forward 2 with a statement from his application that on its face would 3 provide a basis for dismissing that contention and he is 4 unable to rebut that statement.
5 (Commissioner Gilinsky joined the meeting at this 6 point at 2:20 p.m. )
7 8
9 10 11 12 13 14 COMMISSIONER BRADFORD:
Len, how much time is all 15 this taking compared to the norma 1' contention stage in your 16 estimate ?
17 MR. BICKWIT:
Well, I think not a lot of 18 additional time.
It is not really specified how this vould 19 be done.
As we conceived it, a good bit of it would be done 20 a t the prehearing conference.
21 MR. SH'APAR:
It.is not a critical path time I 22 guess because it is done early in the process where the 23 COMMISSIONER BRADFORD:
Well, nothing is a 24 critical pa th time.
You mean critical path for the hearing 25 itself and not for the plant.
MR. SHAPAR:
Righ *., f o r th e hearing.
COMMISSIONER BRADFORD:
The contention is filed ALDERSoN REPORTING CCMPANY,INC,
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5 1 and then the applicant 2
MR. BICKWIT:
The applicant pleads as he would 3 under the normal rules.
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4 COMMISSIONER BRADFORD:
And he already has a study 5 or he goes out and does the study?
6 HR. BICKWIT:
He pleads the application.
He 7 pleads that there is a study in the applica tion that 8 demonstrates in this example that the trains will not drown 9 out the sirens.
10 COMMISSIONER BRADFORD:
Why doens't the intervenor 11 have notice of that study in the first place?
12 MR. BICKWITs Because under this option he would 13 not.
Under the next option that we are going to consider he 14 is on notice as to tha t a pplica tion.
But this, to put it 15 crudely, is kinder to the intervenor.
It is telling the 16 intervenor you really don't have to read the application.
17 If the applicant pleads a portion of the application and the 18 Board is inclined to base a dismissal on that portion, then 19 the intervenor will have an opportunity to rebut the facts 20 a t that time.
21 COMMISSIONER BRADFORD What virtue is there in 22 telling the intervenor he doesn't have to read the 23 a pplica tion ?
24 MR. BICKWIT:
Well, I don't regard it as any
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l 25 virtue f rom the. standpoint of the law, although I gather the ALDERSON REPORTING COMPANY. INC.
400 VIRGSIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
6 1 Licensing Board may have some differences with us on that.
2 It is basically a policy question of what do you want to 3 require of an intervenor who presents his contention at the 4 contention stage, do you want to require that he have read 5 tha t application.
6 COMMISSIONER BRADFORD:
What is the present 7 practice?
I must say I always assumed that the intervenors 8 had read the application.
9 MR. BICKWIT:
There is certainly no requirement 10 that it be read and the intervenor is certainly not on 11 notice as to the application.
12 MR. SHAPAR:
I think as a matter of practice, if 13 you look at some of the interventions, some of the, shall I
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14 s a y, sophisticated intervenors have damn well read the 15 application snd the contentions are directed at the 16 a pplica tion.
In other cases where, if I may use the term, 17 unsophisticated intervenors come in it is clear that they 18 have not read the application.
4 19 In fact, there has been one case where the 20 contentions were copied from another proceeding.
In one 21 case it was a pressurized water reactor and in the other 22 case it was a boiling water reactor.
23 COMMISSIONER BRADFORD:
How did the BWR 4
24 contentions progress throuah the PWR ?
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25 ME. SHAPAR:
I don't remember.
ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE, S.W, WASHINGTON. D.C. 20024 (202) 554-2345
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COMMISSIONER BR ADFORD:
They didn't get in.
2 MR. ROSENTHAL4 No, they went down immediately on 3 that very ground that they had no applicability to the 4 reactor involved.
5 MR. SHAPAR:
My point really was that somt-6 intervenors do read the application and focus their 7 contentions around it and others do not.
8 CHAIRMAN PALLADINO:
But suppose this study had 9 not been referred to in the application, could the applicant H) still refer to this study?
11 MR. BICKWITs Yes, he could and there would be the 4
12 same opportunity to rebut those facts if the Board was 13 inclined to dismiss on that-basis.
14 COMMISSIONER BRADFORD; Could the applicant go out 15 and do the study in light of the contention?
16 MR. BICKWIT:
If he had time under the rules to 17 g e t it done, yes.
18 COMMISSIONER BR ADFORD :
Suppose he asked for an 19 extension?
20 MR. BICKWIT:
I doubt it would be granted.
I 21 think the Boards can speak to that, but I wouldn 't imagine 22 that they would grant it.
, 23 MR. LAZO4 One thing I think we ought to mention 24 is when you speak of the application you are really talking
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25 about a document that may be a quarter or a half an inch ALDERSON REPORTING COMPANY,INC, 400 VIRGINI A AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
8 1 thick.
We are really talking about the FSAR and the 2 environmental report and these are eight feet long and have 3 a lot of pages.
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4 COMMISSIONER BRADFORD:
Right.
5 MR. LAZO Most of the FSARs today refer back to 6 the CP PSARs.
So it is quite difficult sometimes for the 7 intervenors, even if they look at the F3AR, to get the facts 8 which are incorporated by reference from the old CP PSAR.
9 COMMISSIONER BRADFORD:
That is under the' current 10 system, Bob.
One of the controversial aspects of what is 11 being proposed I guess is that it would have the contentions 12 in large part dealt with before the FSAR documents were 13 com pleted.
Some of them would be available obviously, but I
14 not all.
15 MR. SHAPAR:
The FSAR is part of the application.
16 COMMISSIONER BR ADFORD:
I am sorry.
I was 17 thinking of the staf f document.
18 COMMISSIONER AHEARNE:
The SER.
19 MR. BICKWIT You are just defining the 20 application as not to include the FSAR.
21 COMMISSIONER BRADFORD:
Yes.
22 MR. BICKWIT We are referring to it as including 23 everything.
24 COMMISSIONER BRADFORD:
Okay, I am sorry.
When
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25 you split them I just assumed you were talking about the ALDERSON REPoRr'NG COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 staff document versus the application.
2 MR. lAZOs No.
I was referring to the problem 3 that many of the FSARs are not complete.
They tend to 4 incorporate by ref erence things that were found in the PSAR 5 and those documents may not be present.
6 CHAIRMAN PALLADINO:
Len, if this study were not 7 in the application or not in the SAR the intervenor would 8 not know whether or not it was the right set of tracks.
9 Would he have an opportunity to cross-examine or to find out 10 whether they were on the right set of tracks?
11 MR. BICKWIT:
Not to cross-examine.
These are 12 brand new f acts that he has to confront.
I would assume the 13 Board would give him some opportunity to rebut which would
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14 include an opportunity to get something up.
15 MR. FRYE:
I think fairness would require that 16 he have some opportunity to relat, and I think probably this 17 discussion also illustrates our concern about this 18 par ticular option, that it is really moving a determination 19 on the merits up to too early a stage in the proceeding.
We 20 are getting into questions about rebuttal and whether 21 studies can be done at this stage and so on.
22 ER. SHAPAR Of course it is not a decision on the 23 merits a t all.
It is a decision on whether or not the issue 24 is a genuine issue of material f act or if it is being i
25 admitted as a contention and does not deal with the merits.
ALDERSON REPORTING COMPANY :NC.
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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COMMISSIONER BRADFORD:
If it comes out against 2 the intervenor, then it will be a decision on the merits.
3 HR. SHAPAR:
But on the theory that on whatever g-4 threshold standard you adopt it isn't basically a genuine 5 issue that requires a hearing.
6 COMMISSIONER BRADFORD:
Right.
7 MR. BICKWIT It is on the merits to this degree I 8 would say.
I mean, we have got lots of case law in the 9 agency that says you don't examine the merits in any way at 10 the contention stage.
Under option three you do.
You 11 examine them to the point of attempting to answer the 12 question would a reasonable mind be prompted to inquire 13 f urther into this matter.
t 14 Howard is right that it is not an ultimate 15 resolution of the merits of the issue but it gets into the 18 merits.
17 HR. SHAPARs It merely answers the question of 18 whether or not it is worth litigating.
19 MR. BICKWITs That is right.
20 CHAIRMAN PALLADING:
To help me, and I am 21 embarrassed to raise the question again, could you define 22 the components of material evidence?
I a pprecia te it has 23 got to be relevant, but somebody was telling me it has to be 24 more than relevant and I have forgotten what the other point
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25 was.
ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
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ER. BICKWIT:
Are you asking what does the 2 standard genuine issue of material f act mean in Option 3?
3 CHAIRMAN PALLADINO:
Yes.
4 NR. BICKWIT:
That is a difficult question and I 5 have had a paper prepared.
6 (Laughter.)
7 CHAIRMAN PALLADINO:
I thought I was the only one 8 that didn't have a complete handle on that.
9 MR. BICKWITs One of the quotes I ought to read to
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10 you.
It says, "The law provides no magical talisman or 11 compass that will serve as an unerring guide to determine 12 when a material issue of f act is presented."
13 I think what you have in the treatises in the i
14 cases is that material means it has got to be relevant.
15 Then whether the matter is in addition in genuine issue is 16 really a question of whether a reasonable mind would be 17 prompted to inquire further into the matter as a result of 18 this exa mina tion.
19 In other words, as Howard says, is it worth 20 litiga ting.
21 COMMISSIONER AHEARNE:
Is relevant in that context 22 relevant to the issue or relevant to the decision on the 23 issue ?
24 MR. BICKWIT:
Material means relevant to the 25 decision on the issue.
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COMMISSIONER AHEARNEs That is what I thought, 2 which is more than just relevant.
3 MR. BICKWITs I am not sure I understand.
4 COMMISSIONER AHEARNE:
Well, because it can be 5 related and therefore relevant to this issue, but it doesn't 6 matter to the decision.
7 MR. BICKWIT Yes, I see.
8 MR. ROSENTHALs It has to influence the decision 9 or be potentially of influence in the decision-making 10 process or whatever the ultimate issue is.
11 MR. BICKWITs The facts are material if their 12 existence or non-existence might affect the result of the 13 action.
14 COMMISSIONER BRADFORD4 What is the summary 15 judgment standard again?
16 MR. BICKWITs The same.
It is the same standard.
17 It is the same standard as articulated in the cases and in 18 the rules.
Tha t is not to say that simply because an 19 intervenor survives a motion to dismiss the contention that 20 he will survive without establishing additional information 21 relevant to his case a motion for summary judgment or 22 summary disposition.
23 I think it is f air to say that a Board will ask 24 more of the intervenor at a later stage in the case than 25 will be asked at the contention stage even if the standard ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
13 1 is genuine issue of material fact in both cases.
2 I would offer as a reason for that that in the 3 federal courts genuine issue of material fact is the 4 standard used both for summary judgment and for directed 5 verdict.
Summary judgment is the disposition of the matter 8 before the trial.
Directed verdict is the disposition of 7 the matter at some point during the trial, but before the 8 matter is sent to the jury.
9 In both cases the term " genuine issue of material 10 f act" is used as the standard but the courts tend to require 11 more of the person resisting the motion at the directed 12 verdict stage than they do at the summary disposition stage.
13 COMMISSIONER BRADFORD:
The other side of that 14 coin I should think would be, as we have heard several 15 times, how difficult and how onerous it is for the staff to 16 make an effective summary judgment type presentation.
What 17 this seems to do is to set up a situation in which they may 18 need to may need to make it a couple of different times.
It 19 is going to take rather more to get rid of a contention or 20 at least to challenge the contention, whether you succeed or 21 n o t, under the genuine issue.
22 MR. BICKWITs More time will be spent challenging 23 con tentions.
24 COMMISSIONER BRADFORD:
Right.
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25 MR. BICKWIT:
It is going to be easier to get rid ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W WASHINGTON, D.C. 20024 (202) 554-2345
14 1 cf them.
2 COMMISSIONER BRADFORD:
It is going to be easier 3 to get rid of them if you succeed.
If you don't succeed 4 then you get to go back and do it all over again at the 5 summary judgment stage.
6 MR. BICKWITs Tha t is right.
What you are doing 7 is somewhat different.
At tha t stage you are presenting 8 evidentiary submissions.
9 COMMISSIONER AHEARNE:
Let me ask, on who is the 10 burden?
11 MR. BICKWIT The burden at the summary 12 disposition stage is on the proponent of the ---
13 COMMISSIONER AHEARNE:
No, no, at the contention.
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14 MR. BICKWIT At the con tention stage?
15 COMMISSIONER AHEARNE:
Yes.
16 MR. BICKWIT:
Under Option 3 the burden is on the 17 intervenor.
Under Option 4B it is on the staff or the 18 applicant.
19 COMMISSIONER AHEARNE4 Under 3 the burden is on 20 the intervenor at the contention stage.
On whom is the 21 burden at the summary judgment stage?
22 MR. BICKWIT:
It is always on the proponent of 23 summary disposition.
24 COMMISSIONER AHEARNE:
Right.
So the burden s
25 switches.
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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MR. BICKWIT The burden switches.
I would say 2 non etheness ---
3 COMMISSIONER BRADFORD:
Wait a minute.
But if you 4 do that, Len, then how can you say that the intervenor is 5 going to get greater tolerance in the early stage than at 6 the late stage?
7 MR. BICKWITs I say it.
8 (Laughter.)
9 I just say it.
'I think it is only reasonable to 10 expect that a Board will expect more of an intervenor at the 11 later stage than the Board will expect at the earlier stage.
12 COMMISSIONER BRADFORD:
That certainly is a 13 reasonable sydtem to set up, but if the Board is told that f
14 the burden is on the internenor at the early stage how can 15 it within the confines of that instruction give him more 16 latitude than at a stage where the Board is on the proponent 17 of the summary disposition motion.?
18 MR. BICKWIT4 Well, you can put any language you 19 wa n t in the statement of considerations.
I think the only 20 reasonable way to construe this is that the intervenor is 21 expected to come forward with a bit more at the summary 22 disposition stage than the intervenor is expected to come 23 f orward with it at the contention stage.
24 MR. ROSENTHALs He does not have'to come forward
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25 with anything at the summary disposition stage except in ALDER $oN REPORTING COMPANY,INC,
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16 1 response to the applicant's or staff's motion.
So that he 2 has no affirmative burden a t all at that stage.
3 I have the same problem as Commissioner Bradford g--(
4 does because under this Option 3 as you explain it the S intervenor has an affirmative obligation at the contention 6 stage of demonstrating that there is a genuine issue of 7 material f act.
8 Now, if he has got that burden at that point, he 9 doesn 't have the burden a t the la ter point.
If the burden to is on the movant for summary disposition, it is difficult 11 for me to understand how you reach the conclusion that you 12 d o.
13 MR. BICKWIT The reason I reach it is that I thin r
14 that analysis ignores the practical reality that when you 15 have a motion for summary disposition you are going to have 16 a lot thrown at the intervenor that isn't thrown at the l
17 intervenor at the contention stage.
18 MR. ROSENTHAL:
It depends on the showing that to will be made by the movant for summary disposition, again, 20 h ypothetically the applicant or the staf f.
Of course, the 21 intervenor could move for summary disposition as well.
The 22 showing will vary I would think in its strength from case to i
23 ca se.
24 But if that intervenor at the outset has the
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25 burden of coming forth himself, and not in rebuttal to ALDERSON REPORTING CCMPANY. @C.
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17 1 somebody else, but coming forth eith enough information to 2 persuade the Board af ter hearing f rom the other side that 3 there is indeed a genuine issue of material fact, it seems r-
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4 to me the intervenor has got a lot larger an obstacle to 5 hundle.
6 MR. SHAPAR:
I think the talk on burden may be 7 blurring it a bit.
Whatever threshold now exists, the 8 intervenor has the burden of meeting it.
He has got to 9 state a contention, he has got to show standing and he is 10 allegedly supposed to state what the basis of his contention 11 is.
If you want to call it burden, he has got it now.
12 What we are talking about is whether or not that 13 threshold should be raised higher.
If it is raised higher,
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f 14 he has the same burden he has now except with a higher 15 threshold.
16 COMMISSIONER BRADFORD:
That is like saying you 17 would have the same burden high jumping over two feet as you 18 would over four.
I mean, it is true that you weigh the same 19 amount, but the physicists among us would suggest there is 20 more of something needed to get you over ---
21 MR. SHAPARa No, but we are talking in terms of 22 concepts.
What I am saying is that whatever the threshold 23 is now, if you want to talk about burden the intervenor has 24 it.
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25 MR. ROSENTHAL He doesn't have any burden ---
ALDERSON REPORTING COMPANY,INC.
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MR. SHAPAR:
He has n burden ---
2 MR. ROSENTHAL:
Not on the merits he doesn't.
3 MR. SHAPAR:
We are not talking about the merits f-i 4 up to now.
5 MR. ROSENTHAL:
You will get into the merits when 8you get into the question as to whether there is a genuine 7 issue of material f act.
That is the merits.
8 MR. BICKWITs You get in to them.
You don't 9 ultimately dispose of them, but you get into them.
10 MR. ROSENTHAL:
Yes, you get into them, but under 11 the present procedures you don't get into them at all.
He 12 just comes forth with his allega tions and it doesn 't make l
13 any difference at that stage in terms of the admissibility
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14 cf the contention whether those allegations are substantial, 15 do present a genuine issue of material fact or they don't.
16 MR. SHAPAR:
But he has the burden of stating what i
17 the rule requir es.
And, as a matter of fact, when he l
18 doesn 't do it, the applicant comes in and says he hasn't met 19 the rule, he hasn ' t met the burden of complying with the 20 rule.
So in that sense he has got the burden.
21 COMMISSIONER AHEARNEa Bob, would you like to jump 22 in and describe f rom the point of view of a lono-time member 23 of the Licensing Board how you would. view that issue.
24 MR. LAZ0s Well, we are mostly listening here 25 tod a y.
ALDERSON REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHIN'GTON, D.C. 20024 (202) 554 2345
19 1
(Laughter.)
2 CONNISSIONER AHEARNE:
We have this issue of the e
3 shif ting of the requirements on the intervenor and would the 4 Board tend to, as Len believes, be a little more lenient 5towards the intervenor at one stage versus the other?
6 HR. LAZ0s Well, I think I agree with Alan that 7 the Boards certainly would not like to get into the merits 8 of the contention at an early stage because it is going to 9 take a lot of time to do it.
That is the biggest problem.
10 MR. BICKWITs But does that mean that they would 11 be a little more lenient on the intervenor at the contention 12 stage?
I think it does.
13 MR. LAZO4 They may migh t be.
I think I agree 14 with you, yes.
15 CHAIRMAN PALLADIN0s You know, one comment that 16 would be of interest by anybody at any time when we discuss 17 contention is whether or not it is going to help improve the 18 process.
19 Now, if you come along and say, well, Option No. 2 20 could conceivably help improve the process I would be 21 interested in that comment, or that it could, and then why.
22 COMMISSIONER AHEARNE I think you have to,ask a 23 little bit more, Joe.
What do you mean by " help"?
24 CHAIRMAN PALLADINO:
Improve the process.
'I am 25 learning how to be a lawyer no i i
i s
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(Laughter.)
2, MR. LAZO Well, I think one thing that might well 3 help improve the process is if the Licensing Boards and the 4 others parties that of ten get together and stipulate to 5 contentions would tighten up the contentions at an early J
8 stage of the proceeding because very often the contentions 7 that are admitted, and sometimes these are admitted because 8 the staff counsel and the intervenor counsel have gotten 9 together and agreed to a set of stipulated contentions.
10 Sometimes these are rather loose contentions and 11 1t is makes it very difficult for the parties at a later 12 time to file a meaningful summary disposition motion.
They 13 a re unable to file affidavits that are f actual.
They tend
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14 to have to file an affidavit that is conclusionary because 15 o f the original language of the contention and it puts a 16 f airly hard bur >3en on the parties to dispose of contentions 17 summarily because the contention originally was not written 18 in a clear f actual way.
19 COMMISSIONER GILINSKY s Howard, why do you agree 20 to loosely worded contentions?
21 (Laughter.)
22 MR. SHAPAR:
I have taken my cue from whatever I 23 discerned Commission policy to be as of any particular 24 momen t.
(
j 25
( Laughter. )
l I
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1 COMMISSIONER BRADFORDs (Inaudible) 7 2
MR. SHAPb3s I can give the Commission whatever 1
e 3 policy they chose to adopt and implement it very effectively.
k 4
I would like to say that in terms of your 5 question, Mr. - Chairman, I would like to put it in rather 6 stark terms.- If this Commission believes that it is
')
Q, 7 worthwhile tb litigate an issue of whether or not a
'q 8 m ul ti2thousand acre biomass farm is a litigable issue as an s
t is i
9 altern'a tive to a thousand megawatt nuclear power reactor, 10 then these. changes won 't help and I think you ought to quit s
11 talking 'about them.
i i
12 (Laughter.)
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13 On tho other hand, if you don't think it is
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14 voi 'thwhile to li tigate that issue, then I think you ought to i
l 15 pursue this discussion and focus on alternative uA.
/
16 COMMISSIONER BRADFORD By litigate the issue, of l-3 17 cou rse, you mean pursue it as far as summary disposition.
18 MR. SHAPAR:
Yes.
,a 19 MR. ROSENTHALs That issue was disposed of, as the l3 20 Commission is aware, on summary disposition and on a motion 21 tha t was supported by an af fida vit which I cannot believe l
22 rGuired an extensivo amount of time to prepare.
23 CHAIRMAN PALLADINO:
Before we go to 4, can I ask 0,
24 a question with regard to 2, because I am having' trouble now
(
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25 distinguishing between 2 and 3 since you include materiality ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W WASHINGTON. D.C. 20024 (202) 554 2345
22 1 in both of them.
2 I would like an example really of where it doesn't 3 appear beyond doubt that the intervenor can prove no set of 4 f acts in support of its claim which would entitle it to 5 relief.
6 It would seem to me that an internenor in almost 7 every case would have some set of f acts in support of his 8 claim which wouldn 't entitle it to relief.
I am not sure I 9 got the implication of that.
I wonder we put that in, and 10 when I wonder why then I presume I don't understand it.
11 MR. BICKWIT:
If the intervenor acknowledges that 12 the tracks in this example aren 't connected and he 7
13 nonetheless says that the trains are going to go through 14 this area anyway, that they are going to go from one 15 unconnected piece of track to another ---
16 (Laughter.)
17
---if everything he says is true he is entitled to 18 relief.
The fact also is that what he says is inconceivable 19 and therefore his contention is dismissed on that basis.
20 CHAIRMAN PALLADINO But now if you got a little 21 more practical and let's assume the track was connected 22 somehow to the mainline but it ended up in a dead field, 23 that would also be inconceivable?
24 MR. BICKWITs I would say so.
Well, it would 25 really depend on how many dead fields and on.the track ALDERSON REPORTING COMPANY,INC,*
400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554 2345
23-1 between the dead fields.
2 COMMISSIONER AHEARNE:
There is another feature in
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3 No. 3.
No. 3 does introduce the concept of the Licensing 4 Boards using their technical knowledge in reaching that 5 decision.
6 MR. BICKWITs Yes.
Option 3 is going to get into 7 sose examination of the merits beyond the question of is 8 what the intervenor is putting f o rwa rd simply inconceivable.
9 CHAIRMAN PALLADINO:
Just to understand a little 10 bit better, even though those tracks aren't connected in 11 your example, it is not inconceivable that the railroad 12 might come one day and connect them.
13 MR. BICKWITs Right.
I 14 CHAIRMAN PALLADIN04 And therefore given this 15 situation ---
16 MR. BICKWITs All right, in that case the 17 contention is in.
18 CHAIRMAN PALLADINO:
It could do that?
19 MR. BICKWITs Yes.
20 MR. REMICK Or he might shift cars in and then go 21 back out the same track.
22 CHAIRMAN PALLADINO:
Well, he had this piece of I
23 track completly disconnected on both ends.
24 MR. BICKWITs But if the intervenor were to say I l
25 am not telling you that they are going to be connected and I l
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
24 I acknowledge that they will never be connected.
However, I 2 know the trains go from one track to the next despite the 3 f act that they are not connected.
In that case you would 4 throw him out on the basis of alleging inconceivable facts.
5 COMMISSIONER GILINSKYa Bob, or anyone else for 6 that matteL, do contentions come to mind from previous 7 proceedings that f all in this category to be just obviously E ridiculous if you introduced any amount of fact but nake it 9 on the basis of our standards for contentions?
10 MR. LAZO:
Commissioner, I don't really believe 11 that there have been very many contentions of that sort tha t 12 have ever been admitted.
I think the Licensing Boards have 13 found one reason or another to dispose of those contentions i
14 early.
15 COMMISSIONER GILINSKY:
The reasoning would be 16 wha t, that there needs to be some basis?
17 MR. LAZO They will generally argue that it has 18 not been phrased with enough specificity or not adeq ua te 19 basis ha s been given.
Perhaps it is a challenge to the 20 regulation.
But almost on a rather common sense basis the 21 Boards will generally not admit contentions of that sort.
22 CHAIRMAN PALLADINO:
That what?
23 BR. LAZO:
Will not admit contentions of that sort 24 which we would feel are f rivolous on their f ace.
1 25 MR. REMICK:
Commissioner Gilinsky, the last time i
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W, WASHINGTON. D.C. 20024 (202) 554-2345
25 1 I mentioned the BWR/PWR, and sometimes you get that one.
I 2 have thought of another one, too.
I have personally seen 3 where they will ---
(,
4 COMMISSIONER GILINSKY:
Those were thrown out., the 5 earlier ones.
6 MR. REMICK:
Absolutely.
--- where they will 7 ref er to the wrong regulations for the particular case.
A 8 regulation that is not in existence is just proposed 9 rule-making and they say it doesn't meet with this.
- Well, 10 if the regulation isn't in existence, it is thrown out.
I l
11 have seen those.
Or the mix-up between Part 50 and Part 70 12 licenses when you get into radioactive materials, and so f
13 f or th.
A Part 70 license amendment, let's say, somebody 14 ref erring to the Part 50 requirements and this type thing, 15 there have been some of those.
16 COMMISSIONER GILINSKY:
What does the Board do in 17 that case?
18 ER. REMICK:
Throw them out because they don't 19 apply to that particular proceeding.
They are not relevant 20 to that.
21 COMMISSIONER GILINSKY You tell the party that 22 you referred to the wrong regulation or do you simply throw 23 it out?
24 MR. REMICK:
Yes.
Of course, you have got to make l
25 sure that that wasn't a typo or unintentional and so forth.
ALDERSON REPORTING COMPANY, INC.
400 VIRGINTA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-234S
26 1 But at prehearing conferences this is the type of thing that 2 is discussed.
3 I personally experienced the case where they
\\
4 referred to a proposed rule and the contentions were removed 5 for that reason.
It is not an existing rule but it is a 6 proposed rule.
Therefore, the licensee does not currently 7 have to read those.
8 MR. SHAPAR:
There are a lot of contentions that 9 get in that are phrased in terms of the applicant's analysis 10 is inadequate or the applicant has not adequately discussed 11 this or adequately discussed that.
12 COMMISSIONER GILINSKY That could get thrown out 13 on the basis of lack of specificity or basis of whatever?
14 MR. SHAPARs Yes.
15 MR. ROSENTHAL:
My experience, having reviewed a 16 number of transcripts of prehearing conferences, is that 17 quite f requently. the Licensing Board will probe at the 18 prehearing conference what the basis is it is being assigned 19 f or.
Sometimes it becomes quite clear that as an open and 20 notorious matter the basis is just not there.
They don't 21 have an assigned basis.
22 Now, I hate to bring the biomass case up again, 23 b ut I could give you an illustrative example of the kinds of 24 things that could have knocked that contention out at the 25 threshold, and that is let us suppose that tha t proposed ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
27 1 intervenor had come in and said, "Well, I am relying on the 2 f ac t that there is a prototype plant in California which was 3 successful as a biomass plant." And the Boa rd says, "Well,
(
4 where did you get your information about that plant or that 5 f arm from?"
And he says, "Well, it is right here in Project 6 Independence, the report."
The Board says, "Well now, you 7 are relying on Project Independence as your basis then and 8 specifically the bit about the farm?"
"That is right."
9 Then the L'icensing Board turns to that report and 10 discovers, which was the actual case with that farm off the 11 California coast, that it wasn't a prototype at all.
On the 12 very source that the intervenor is r^1ying on as his base 13 his claim is refuted because let's say that the report 14 establishes that this wasn't intended to be a prototype at 15 all and it goes on to indicate on its face that this 16 portends nothing in terms of commercial viability.
17 I would submit to you that perfectly consistent 18 with what we had to say in the iniamous ALAB 590, I think it 19 was, a Board could say, all right, and here is your basis.
20 In that case it wouldn't have to be resorting to the wrong 21 technical knowledge, which I think is a dangerous course to 22 substitute one's knowledge for what is in a record, but 23 pointing to the basis which was assigned by the intervenor 1
24 and showing that right on the face of that basis it is not 25 worthy of exploration f urther.
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W WASHINGTON, D.C. 20024 (202) 554-2345
28 1
Now, I believe there are many instances in the 2 past where Licensing Boards have been, and that was a
_e.
3 hypothetical example obviously, but have through exploration 4
i 4 with these intervenors have been able to in effect blow it 5 out of.the water right from the beginning where it would be 6 possible for the Board to say, okay.
Right out of the 7 intervenor's own mouth or the sources he has relied upon for 8 his contention we are able to conclude that this is 9 something that is f rivolous and is not worthy of further 10 exploration.
11 COMMISSIONER AHEARNE:
Just for the education of 12 perhaps soma
<<f us in what way did Jack Buck's proposed 13 position to the Appeal Board differ from what you just said?
14 MR. ROSENTHALs Because in the view at least of 15 the Appeal Board majority in that case Jack Buck was 16 required to go beyond wha t were matters of record and was 17 required to factor in his own judgments based upon non-facts 1
18 of record.
The facts which demonstrated that that 5
19 contention did not present a genuine issue of material fact 20 surfaced for the first time in the affidavit that was 21 appended to the motion for summary disposition which was 22 filed by I think it was the utility in that case.
23 COMMISSIONER AHEARNE:
But the discussion of the 24 f act that Project Independence really didn't support his 25 claim which is what Jack pointed out.
l ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
29 i
1 MR. ROSENTHAL:
Well, in that case it neither made 2 his claim compelling nor in our judgment did it ref ute it.
3 Now, I again as a member of that Board, and
(
4 remember also that we were looking at this on the Appellate 5 level, and I didn' t have the position for intervention 6 bef ore me, and I am not an authority on biomass.
I knew 7 nothing about biomass before I came into it and I was very 8 skeptical, as indeed both the opinion that I wrote for the 9 Boa rd and Mike Farrar, speaking for himself, wrote a 10 concurring opinion.
We were both quite skeptical that that 11 con tention would ever fly in the real world.
12 The trouble I think was the courts particularly, 13 and I think we have got to be thinking a little bit about 14 the coudts which do review our decisions, they are fairly 15 anxious to have decisions based upon matters of record or 16 are on the record rather than on again what an individual 17 may have in his head as well as any kind of predilections.
18 I just felt, perhaps incorrectly, in that case 19 that what we had before us at the time that the contention 20 came up was insufficient without f urth er exploration to 21 warrant saying bior. ass simply won't fly.
22 COMMISSIONER AHEARNE:
I am only exploring this 23 because you raised it and wouldn 't have gone into it in 24 detail.
25 MR. LAZO4 All Jack did was make a simply pencil ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W WASHINGTON, D.C. 20024 (202) 554-2345
30 1 calculation.
2 COMMISSIONER AHEARNEs Did you feel it was 3 inappropriate to examine Project Independence in addressing 4 the contention?
5 MR. ROSENTHAL:
You mean what was said in the 6 report of Project Independence?
7 COMMISSIONER AHEARNE:
Yes.
8 MR. ROSENTHAL:
No, I did not think it was 9 inappropriate.
I thought it was appropriate.
10 COMMISSIONER AHEARNE:
You thought that was 11 appropriate?
12 MR. ROSENTHAL:
That is correct.
That was cited 13 as the source and that was certainly approp riate because if
(
14 somebody comes up and says the basis for my claim is this 15 report, and one goes to that report and finds that that 16 reports lends no support at all, and maybe it even has 17 something in it which refutes the claim, I think that is a 18 b asis ---
19 CHAIRMAN PALLADINO:
I thought that was what was 20 used in ref uting it, wasn't it?
21 COMMISSIONER AHEARNEs Partially.
Then there was 22 a small calcula tion done.
23 CHAIRMAN PALLADIN0s You mean putting in 24 supplementary information confused the issue or compounded
(
25 the problem ?
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
31 1
COMMISSIONER AHEARNE:
I think that Jack then had 2 to draw the conclusion based upon what the report said.
3 Do you feel it is inappropriate then for the Board 4 member to do some kind of calculation based upon ---
5 MR. ROSENTHAL:
Not if the calculation is clearly 6 not controversial.
I mean, one of the problems about 7 calculations, as I understand it, and I am a lawyer and not 8 a scientist, but I have had enough exposure in cases that 9 have come before me since I have been here to know that one 10 man 's calculation is another man 's folly.
So that I have 11 some trepidations about that.
12 COMMISSIONER AHEARNE:
Yes.
13 MR. ROSENTHAL:
But if it is adding two gnd two 14 and getting four, then I would 15 COMMISSIONER AHEARNE:
Let me step off into the 16 quagmire then.
It appears to me that what part of the 17 objection is is when the technical members attempt to follow 18 the train of logic or calculation which their technical 19 training develops in them that there is an objection to that 20 being used.
Whereas then the legal members use the train of 211ogic of case A to case B to case C and reach a conclusion 22 tha t there is no objection.
It appears to me sitting here 23 f or three years tha t that train of logic f rom A through C is 24 also not automatically noncontroversial.
But lawyers will 25 argue heated about that train of logic and at the moment I ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) $54 2345
32 1 don 't really quite see the difference.
2 MR. ROSENTHAL:
You may well, Commissioner, have a
,e 3 point.
I would just respond that.the laws of this game are 4 set up by lawyers.
5 (Laughter.)
6 There is a distinction formed by lawyers 7 frequently in the courts between questions of fact and 8 questions of law and you don't need a record for a question 9 of law and lawye'rs are perfectly free to off the top of 10 their head come down with judgments, whereas the courts 11 expect, the courts being run by lawyers, that even the 12 technical f acts be placed on a record.
13 MR. SHAPAR:
Actually, Commissioner, I think Mr.
14 Buck was following a well-known principle that was first 15 enunciated in a 1923 Illinois case which holds:
" Judges are 16not presumed to be more ignorant than other people."
17 (Laughter.)
18 COMMISSIONER AHEARNE:
You were hold that to just 19 stick it in at the right point.
20 (Laughter.)
21 MR. ROSENTHAL Obviously it was a controversial 22 matter in that.
Again from my own standpoint I felt a lot 2; more comfortable with saying no trial of that issue when I 24 had tha t af fidavit of an expert uncontroverted which went
(
1 25 well beyond the matter of what was said or could be inferred ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D C. 20024 (202) 554 2345
33 1 from what was said in the Project Independence report.
2 CONNISSIONER BRADFORD:
The point really isn't 3 whether this particular calculation of Buck 's may have edged 4 over into sort of the realm of common knowledge and out of 5 specialization so much as it is whether one is prepared to 6 allow the Board members to start making calculations which 7 the parties get no chance to rebut or correct.
8 When you do it in the form of an affidavit from an 9 expert, then the proponent of the contention gets a shot at 10 it before the judges have to chew on it and weigh it and 11 come to a conclusion.
4 12 When you let the Board members do it th em selve s, 13 if you don' t really restrict them to the self-evident, then 14 it is hard to know just where a line does get down because 15 the more they take it off into their own areas of 16 specialized knowledge the more need there is for other 17 experts to be able to say, wait a minute, you are leaving 18 something out.
19 The point with the biomass contention it always c
20 seemed to me, was less that anyone really thouqt.t that 21 biomass would survive or even that Buck's calculation was 22 vrong as it was that they thought it was a mistake to let 23 the Board members start making technical calculations that 24 were arguably extra-record.
25 CHAIRMAN PALLADINO:
The calculations were really ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., SY! WASHINGTON, D.C. 20024 (202) 554 2345
34 1 aligned to reasoning to show that the biomass was not a 2 viable alternative, just as the lawyers would have gone c
3 through a reasoning process and made some other decision.
fc 4 So the mere fact that he used numbers in doing that was only 5 his vehicl? for carrying out the thought process.
6 COMMISSIONER BRADFORD But when the lawyers argue 7 change of reasoning, at least in theory they have had a shot 8 at each other's change of reasoning through the briefing 9 process and the judges also get a balanced point of view 10 there.
Now, it is true that the judges can look to cases 11 that weren't briefed regardless.
12 CHAIRMAN PALLADINO:
I wonder if we are now not i
13 ready to go to Option 4.
14 MR. BICKWIT Option 4A is the same as Option 3 15 except that the intervenor is presumed to have knowledge of 16 the application so that if there is an inclination to 17 dismiss the contention because of a pleading of the 18 a pplicant which comes right out of the application, then 19 there is no legal right to rebut by the intervenor.
Our 20 vie w is one that can be done as a matter of law.
21 Then you have the policy question of do you want 22 to.mpute that kind of knowledge to the intervenor in light 23 o f the voluminous character of these applications?
24 So under this example it goes exactly the same way 2b except that the intervenor is out if he hasn't read the ALDERSON REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON O.C. 20024 (202) 554-2345
35 1 application and anticpated it and rebutted it in his opening 2 pleading.
3 COMMISSIONER BRADFORD:
In the same example you s
4 gave about it being the wrong track, the intervenor would be 5 out because the applicant would contend that it was right 6 right track and he would never have a chance to rebut it?
7 MR. BICKWIT Yes.
The Board would say if you 8 haven 't rebutted it in your opening pleading 9
COMMISSIONER BR ADFORD s It is hard to rebut a 10 stu dy that you haven 't read.
11 MR. BICKWIT:
No, no, it is in the application.
12 COMMISSIONER BRADFORD Right, but supposing you 13 haven 't read the application and it turns out that it is in 14 f act the wrong track?
15 MR. BICKWIT:
It is assumed thit you have read the 18 application.
If you haven't answered it, your contention is 17 out.
18 COMMISSIONER BRADFORD4 But in the hypothetical 19 you gave that would be the wrong result.
20 MR. BICKWITs Tha t is true.
N one th ele ss, the 21 con tention would t e out.
22
. CHAIRMAN PALLADIN0s So in this case the applicant 20 must have read the application?
24 MR. BICKWITs The intervenor must have read the 25 a pplication.
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA A'VE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
36 1
CHAIRMAN PALLADIN0s That is right, the int.ervenor 2 must have read the application and must identify all the 3 items that bea r on his contention and be able to refute them.
4 MB. BICKWITs That is right, he must be able to 5 establish at the outset that at least there is a genuine 6 issue between himself and the applicant.
7 COMMISSIONER BRADFORD:
Not just be able to refute 8 them, Joe, but have anticipated and refuted them in his 9 contention.
10 CHAIRMAN PALLADINO:
In his contention?
11 COMMISSIONER BRADFORD:
Yes.
12 CHAIRMAN PALLADIN0s That is almost --- well, no 13 COMMISSIONER GILINSKYa That is right.
14 (Laughter.)
15 CHAIRMAN PALLADINO:
It is almost like No. 5 but 16 not quite.
17 MR. BICKWIT There are some significant 18 dif ferences.
19 CHAIRMAN PALLADINO:
Well, it is a significant 20 burden on the intervenor.
I am not saying 21 MR. BICKWIT Tha t is righ t.
This is a policy 22 question.
23 COMMISSIONER AHEARNE:
At least as your 24 description goes, Len, it fails I think, at least it fails s
25 my f undamental test because it doesn't make sense if you ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
37 1' throw out something that would have been right to keep in.
2 MR. BICKWITs In this example, yes.
The reason it 3 throws it out ic that in this example the intervenor has not 4 read the appliction and has not rebutted it in his opening 5 pleading.
6 I think we have to acknowledge that there are 7 going to be many contentions under any system which might 8 make sense to litigate which the intervenor hasn't done his 9 homework on at the contention stage and therefore is going 10 to lose at the contention stage.
11 MR. SHAPAR:
As I understand it, the only 12 difference between 3 and 4 A is that they both contemplate as 13 a basis that there be a genuine issue of ma terial f act.
I 14 think your discussion correctly points up that the test of 15 that is whether or not if whether or not it would lead a 16 reasonable man to inquire f urther.
The only thing that 4A 17 adds is that it has to be tied to the application.
18 CHAIRMAN PALLADINO:
The only facts we have 19 assumed so f ar is that there is a study in the application 20 that says that they made some analysis of these tracks and 21 there is no noise obliteration of the signal.
22 Now, the intervenor knows that and he argues it is 23 t he wrong track, or maybe it isn't the wrong track.
But he 24 still can argue that and this contention would be admissible.
25 MR. BICKWIT4 Tha t is righ t.
The test will be in ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE S.W., WASHINGTON. D.C. 20024 (202) 554-2345
38 1 either case has he come up with enough to prompt a 2 reasonable mind to inquire further.
3 CHAIRMAN'PALLADINO:
Then in that case the 4 applicant would come back and offer refutation saying it is 5 the right track.
6 3R. BICKWIT That is right.
7 CHAIRMAN PALLADINO:
And you do that all at the 8 contention phase.
9 MR. BICKWIT:
Tha t is right.
10 COMMISSIONER AHEARNE As kind of an example, if 11 the intervenor claims that there is a deficiency in the 12 pla nt, let's say, for example, that the interaction between 13 the safety valves and the relief valves if analyzed would 14 show that some particular weakness of design exists and he 15 says that the applicant just hasn't addressed this.
16 The applicant comes back in and says that on page 17 so and so of documen t such and such which is incorporated 18 into the application, and let's take Eob's example, 19 incorporated in the application by reference to the PSAR, 20 and the PSAR has shown that we have analyzed that kind of a 21 systems interaction and it shows thete that there is no 22 problem.
That ends it?
23 MR. BICKWITs That ends it.
Under 4A that ends it.
24 COMMISSIONER AHEARNE:
Not that the Board member 25 has taken a look at it to see whether or not the weakness ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
3D 1 that the intervenor has postula ted was addressed, but the 2 f act that ---
3 MR. BICKWIT:
If the Board member looks at it and
(,
4 knows something that goes beyond the record, he can say I am 5 inclined to let it in unless the ' applicant can give me some 6 reason not to.
But let's assume the Board member doesn't 7 know anything other than what is put before him.
That ends 8 it.
9 COMMISSIONER GILINSKY:
I thought John was asking 10 whether or not the Board member gets to check the 11 correctness of the applicant's rebuttal, or whatever the 12 right term is.
13 CHAIRMAN PALLADINO:
A lot of times these studies 14 have assumptions and may not be addressing the same piont 15 that the intervenor is trying to get at.
16 MR. REMICK:
And many of the statements are-going 17 to be conclusionary statements with not all the back-up 18 calcula tions there.
It might have been a computer code and 19 this is resolved.
So the question is well, if I believe the 20 conclusion, that is true, but I do not know all of the 21 assumptions that wen t into.
So you are back to the 22 reasonable mind inquiring further.
23 I think even reference to the SAR you are not 24 always, in fact many time, going to get the answer.
You can 25 see that maybe that general topic is discussed, but the ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
40 1 detail is not going to be there.
It is going to be a 2 conclusion.
3 COMMISSIONER AHEARNE4 All I was really asking is 4 that it sounded like what you were saying, Len, is that the 5 intervenor missed the point that somewhere that issue was 6 add ressed.
7 MR. BICKWIT:
If his contention is simply it is 8 not addressed, if that is his contention, and it is 9 addressed, then the contention fails.
10 COMMISSIONER AHEARNE:
What I was trying to 11 describe is if he says the applicant has not addressed this 12 problem.
I 13 MR. BICKWIT:
Yes.
14 COMMISSIONER AHEARNE:
Then the applicant comes 15 back and says, oh, I have addressed it righ t here.
I have 16 made ref erence to it.
17 MR. BICKWIT The Board looks and sees whether he 18 has addressed the problem.
to COMMISSIONER AHEARNE:
The Board does examine 20 whether or not that reference addresses the problem and not 21 merely whether the problem is mentioned, but it actually has 22 to be addressed?
23 MR. BICKWIT:
That is right.
24 COMMISSIONER AHEARNE:
Actually the way the 25 con ten tions are fo rm ulated in practice is that the applicant ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
41 1 hasn't addressed it adequately.
l 2
CHAIRHAN PALLADINO:
It he had said adequately or 3 properly he might have von that contention.
.(
4 MR. BICKWITs That is right.
That would not 5 remove the contention under those circumstances.
6 COMMISSIONER AHEARNE:
So missing the fact that it 7 was addressed, if the contention is worded not addressed 8 adequately 9
MR. LAZO4 Well, if they say adequa tely, then you 10 expect them to give some reason, not adequate because of the 11 f ollowing reasons.
12 MR. SHAPARs That is a basis requirement, and 13 whether or not that is mean t even today is a controversial 14 subject.
15 COMMISSIONER AHEARNE:
Quite.
16 CHAIRMAN PALLADINO Now, how far do you have to 17 go?
You say it wa sn 't done adequa tely and if somebody asks 18 me why I say well because the assumptions were wrong.
Now 19 then must they go and find out which assumption?
Must I say 20 which assumptions 1 believe were wrong?
21 MR. BICKWIT:
It really depends which option you 22 are under.
23 CH AIRMAN PALLADINO:
All right, let's take 4A.
24 MR. BICKWIT:
Under 4A if he simply says you 25 haven 't addressed it adequately, I would sa y if the ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
42 1 application addresses this and the Board looks at it and 2 there is no particular reason to think it is inadequate, but 3 the Board doesn't have to sign on to its adequacy in order 4 to dismiss the contention.
The intervenor is expected at 5 the outset to understand that this has been addressed.
6 CHAIRMAN PALLADINO:
I am a little worried.
These 7 Boards then must have more credence in some of these 8 computer codes than I have because there are a tremendous-9 number of assumptions and sometimes the assumptions made in 10 one part of the code and other assumptions made in another 11 part of the code are not even consistent but somehow they 12 are tied together.
13 MR. BICKWITs We are putting a burden on the 14 intervenor to prompt the Board to inquire f urther into that 15 matter.
If the intervenor under 3 or 4A simply says you 16 haven 't looked at this adequately, the contention is going 17 to get thrown out.
18 MR. ROSENTHAL If the intervenor simply says this 19 is a critical matter, all I find in the application are a 20 collection of conclusions and it seems to me that given the 21 critical importance of the particular matter to safety that 22 the applicant was required to set forth the basis upon which 23 i t reached those conclusions and I regard the application as 24 inadequate in that respect.
Now does-that come in or not?
25 MR. BICKWIT I think that comes in.
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
43 1
MR. SHAPAR:
Well, I think it depends.
He had to 2 look at the particular circumstances to see whether or not 3 it would lead a reasonable person to inquire further.
\\
4 MR. ROSENTHAL:
That is his argument.
Frequently 5 that is the claim that is made.
6 MR. BICKWIT:
If all the application shows is a 7 bunch of conclusions, I would say it comes in.
8 MR. EOSENTHAL:
Without the intervenor having to 9 make a prima f acie case on the proposition that one or more to of those conclusions is wrong?
11 MR. BICKWIT:
That is right.
12 MR. POSENTHAL:
All he needs to do is to say 13 MR. BICKWIT Under Option 5 he would have to take 14 that extra step.
15 CHAIRMAN PALLADINO:
Do you want to go to 4B to 16see how it differs.
17 MR. BICKWIT Under 4B things will function almost 18 exactly as they function under 3.
The only real differences 19 a re that Option 1 does not apply to 4B and does apply to 3.
20 So that there will be no requirement to set down all the 21 f acts known to the intervenor at the contention stage.
22 Secondly, the burden of persuasion on the issue of 23 whether there is a genuine issue of material f act under 4B 24 is on the party wanting to dismiss the contention, whereas 25 under 3 it is on the proponent of the contention.
ALDER $oN REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
44 1
Finally, under 3 the Board is required to package 2 up all of what it believes justifies a dismissal of the 3 contention and present it to the intervenor and under 4B L,
4 that is not the case.
But I would say it would be the very 5 care case in which 3 and 4B would result in a different 6 result.
7 CHAIRMAN.PALLADINO:
You said 4B really comes down 8 to 3, but you said in 4B we don't have to include Option 1,
9 and I agree we have to include Option 1.
10 MR. BICKWIT:
Right.
11 CHAIRMAN PALLADIN0s If 4B becomes Option 3 then 12 how do you avoid not including the first option?
13 MR. BICKWITs That is one of the differences 14 between 4B and 3.
15 CHAIRMAN PALLADIN04 Then I missed that.
16 MR. BICKWIT:
If you want to attach' Option 1 to 4B 17 then you are most exactly at 3.
18 CHAIRMAN PALLADINO:
How does 4B go?
19 MR. BICKWIT:
In this example taere is no burden 20 on the intervenor to put forward ani?hing except what he is 21 required to put forward under existing practice, which is 22 simply the basis of his contention.
He sim ply says in this 23 example you are violating the emergency planning regulations 24 because train noise is going to drown out the sirens period.
25 Then it is up to tlse staff or the applicant to 4
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
45 1 come forward with a demonstration that there is no genuine j
2 issue of material f act here which they would do by citing 3 the application or anything else and then you would have an k
4 opportunity to rebut it.
5 COMMIS3IONER AHEARNE:
In 4B are you going to 6 allow the technical Board members to use their technien1 7 knowledge?
8 MR. BICKWIT:
Yes.
All of these, 3, 4A, 4B and 5 9 all allow that.
10 MR. REMICK:
There is one aspect of 4B that 11 appeals to me, and I am not speaking for 4B in its entirety, 12 but the fact that the applicant and the staff would come 13 back and point out where in the application this information 14 is addressed can be helpf ul to the Boa rd in prehearing 15 conf erences to have that information to help them in trying 16 to find out what is it that the intervenor has in mind.
17 That additional assistance which they don't get 18 necessarily from the staff and the applicant now could help 19 them at prehearing conferences in trying to find is there 20 a ny real basis for this or not.
That is the one part of 21 that that has some appeal, not all of 4B, but that one 22 particular one.
23 Now, I must admit it puts a greater burden on the 24 staff and the applicant than they have now.
25 COMMISSIONER AHEARNE:
What part of 4B did you not ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
46 1 like ?
2 MR. REMICK:
The bit that it doesn't increase the 3 threshold really.
That comes down to what appealed to me
(
4 was, and this -is personally and I am not speaking for the 5 Licensing Board in any way, was 2 without sanctions, to try 6 to get the intervenor to put forth what he does know to the 7 best of his ability and don't punish him if he overlooks 8 something.
Then adding on that the stsff and the applicant 9 will come back and respond and say, but here in the 10 application is where we cover that.
11 I think those things could help the Board then in 12 resolving whether a contention is worth keep in or not.
13 COMMISSIONER BRADFORD:
When you say back in the 14 applica tion, Forrest, are you including then the staff 15 documents, the SER and what-have-you?
16 MR. REMICK:
Yes, anything that is available at 17 that stage.
The SERs and things aren't necessarily always 18 available at that point.
So you always have the possibility 19 of additional contentions being added.
20 COMMISSIONER BRADFORD:
The staff is probably 21 going to wan t to come back and say here is how we handled 22 tha t, or here is how we will be handling it next week when 23 you get that next set of documents.
24 MR. REMICK:
The SER is really generally more 25 conclusionary even than the SARs, that they have met the ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE S.W., WASHINGTON. D.C. 20024 (202) 554 2345
47 1 requirements of so and so and it is very, very broad and 2 conclusiona ry and not necessarily helpful in deciding is 3 there really an issue or not.
A 4
COMMISSION ER AHEARNE:
You say higher thresholds.
5 Do you mean a higher threshold because of what the 6 intervenor is required to provide or a higher threshold for 7 the kind of contention that will eventually get in?
4 8
MR. REMICK:
Well, basically alerting them a. head.
9 As I see 2 the benefits are you are telling intervenor you' ~
10 expect to flesh out your bases as best as you can.
You are -
11 going to be expected to do it.
Right now it is not spoken 12 t o.
It is not addressed.
So you get varying degrees of 13 what a basis is.
You want them to attempt to get as 14 com plete a basis a s they know at that particular time, 15 realizing that you don 't ha ve all the staff documents and 16 that maybe through just oversight they omit pointing out 17 something.
So I don 't think you should come back and punish 18 them for that.
But you should put them on notice that you 19 expect them to flesh out those bases with as muchl 20 information as they do have available.
21 CHAIRMAN PALLADINO:
Which one does that?
22 MR. REMICK:
Two does that.
23 CHAIRMAN PALLADINO:
Well, I am having trouble 24 distinguishing between 2, 3 and 4B and I was trying to get 25 the key concepts down in a few words, and maybe that is not i
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
e 48
\\
1 possible.
2 MR. BICKWITs In 2 the question that the Board 3 asks is is it conceivable that the intervenor is right 7(
4 here?
Is there any conceivable way he could be right?
5 CHAIRMAN PALLADIN0s All right.
6 MR. BICKWIT In 3, 4A and 4B the Board asks 7 ber ond that do I really think there is any reason to look at 8 this f urther.
9 The distinction rests I think on the observation 10 which I think is right that a Board could say, yes, it is
^11 conceivable he is righ t, but it is so unlikely that I don't f 12 really think there is any basis to go further here.
In that
,j,
13 case the contention comes in under 2 and is dismissed under 14 3, 4 A an d 4 B.
15 CHAIRMAN PALLADINO:
Is 3 the one where you say 16 even though it is true, so what?
1 MR. BICKWIT:
That was 2.
18 '
CHAIRMAN PALLADINO:
That was 2.
,19 MR. BICKWIT In 2 the Licensing Board suggested 20 some kind of materiality standard.
You can attach that to 21 any of these.
In fact, there is already a materiality 22 standard f unctioning to some degree in our present 23 practico.
What I think the Licensing Board is suggesting is 24 t ha t beyond looking at the materiality of the basis to the 25 contention, which I think must be done now, there has to be ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554-2345
49 1 some statement of the facts that add up to that basis and 2 those facts, you.have to be able to say that if they are 3 true they would entitled the intervenor to relief.
4 CHAIRMAN PALLADIN0s You are saying the big 5 dif ference between 4A and 3 is that in 4 A you have got to 6 use the application?
7 MR. BICKWIT In 4A the big difference is that you 8 are presumed to know what is in that application and you are 9 not en'ti tled to rebut it on the second round.
You are to supposed to rebut it then an there and if you don't you are 11 going to be out.
l 12 CHAIRMAN PALLADINO:
Can anyone comment on the 13 basic question of to what extent does any one of these raise i
14 the threshold and raise it sufficiently so that it will 15 imprnve the process, and by improving the process I mean 16 shortening the process without hurting the intent?
17 MR. BICKWIT:
My own feeling is that 3, 4A, 4B and 18 5 will all raise the threshold to the point of shortening 19 the process and that 2 really won't.
20 COMMISSIONER GILINSKY:
Don't you really have to 21 apply these sta'ndards to a real case or a batch of 22 contentions that the agency has had to deal with because 23 even if you are raising the threshold, it may be that the 24 way contentions are worded it doesn't affect those?
25 I will tell you for myself what I would like to ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) $54-2345
50 1 see, and I don't know how long we are going to pursue this, 2 but if we are going to meet on it again is I would like to 3 see a sent of contentions from some case that was heavily
,\\
4 litigate t, I don 't know wha t, Seabrook or some other such 5 cas e ---
6 COMMISSIONER AHEARNE:
Seabrook is still being 7 litiga ted.
8 COMMISSIONER BR ADFORD:
The CP isn't though.
COMMISSIONER GILINSKYa
--- and just see what 9
10 (
11 (Laughter.)
that were proposed, 12 COMMISSIONER GILINSKY:
13 the ones that survived this contention and then survived 14 summary disposition and were in th a hearing.
Then one can l
15 sit down and take a look at these standards and just see 10what they would do to the ceatentions.
Would it throw out 17 contentions that oughtn't to be there, at least in our 18 judgment ?
19 COHMISSIONER AHEARNE:
I would guess part of the 20 problem with that, Vic, is I think the difficulty we are 21 going to have au matter what we do, and that is that the 22 a pplica tion of any statement is going to be I suspect very 23 judgmental because we currently have a standard and at least 24 as best I can tell just by reading or talking to various 25 ' participants in the process there is a variety of of M.DERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
51
'1 interpretations under the current standard.
So you take 2 these and apply it to a given case and I suspect if you have 3 five dif ferent people you may end up with at least with k
4 three different interpretations of what would be in and out.
5 MR. SHAPAR:
I think that is right.
I would 6 answer your question, Mr. Chairman, by saying that I think 7 you don't reAlly get much potential for improvement or help 8 in your terms until you get to 4 A, but I have to add a 9 couple of things.
10 No.
1, I have to presume that most intervenors are 11 going to be able to meet the higher threshold no matter what 12 you come up with here.
13 COMMISSIONER GILINSKYa By rewording contentions 14 or suitably wording contentions.
15 M R. SH AP.9.R a Yes, learning how to operate under a 16 new system and the word will get around very quickly.
17 So I don't think any, in my own opinion, I don't 18 think any of these options, although 4 A has the greatest 19 potential mixed with elements of some of the others that we 20 can fine-tune if you are so inclined, I don 't think any of 21 them are going to be a panacea.
22 Remember the basis that you are using for even 4A, 23 aside from the fact that it ties it to the application, is 24 to cause a reasonable mind to inquire further.
That is what 25 the Supreme Court said you could do in Vermont Yankee and ALDERSoN REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W WASHINGTON, D.C. 20024 (202) 554 2345
52 1 you can argue now that that is already written into the word 2 "ba sis. "
But " basis" I think has been pretty much written 3 out of the rules by practice.
4 What I am telling you is that even if you go for 54A,'I don't think it is going to be a panacea in any sense 6 of the word.
I think most intervenors are going to learn 7 how to comply with and adjust to the new rule and they will 8 be able to come up with facts that will lead a reasonable 9 sind to inquire further.
10 I think the main thing is you'are sending a 11 message to the Boards that you want a basis and you want 12 enough of a basis to lead a reasonable mind to inquire 13 f urther.
I think that is the only precision you are going 14 to be able to achieve in your analysis of this problem.
15 CHAIRMAN PALLADINO:
Just to follow up on that, I 16 was going to say notwithstanding what you said that it may 17 not improve the process.
I think that Option 1 does add 18 something.
It says we want you to give the facts and we 19 v an t you to give sll the facts you know.
It is just like 20 t he applican t has it, it says here are my facts and you tell 21 the intervenor tell us the f acts you are going to work 22 f rom.
I think that is an important element in any~one of 23 these and it could have a salutary effect even though it 24 wouldn 't shorten the time.
25 I also thought that each one of these as we went ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554-2345
53 1 along included all the others.
So if you said 4A you 2 included 1,
2 and 3 as well as the additional item in 4A.
3 MR. SHAPAR I think that is generally true.
4 MR. BICKWITs One and two at least, yes.
5 CHAIHMAN PALLADIN04 One and two.
6 MR. BICKWIT:
It would be those two.
7 CHAIRMAN PALLADINO:
One could also assume that 8 one and two would also apply in 4B.
9 MR. BICKWITs Except that one by its terms does to not apply to 4B.
4B goes back to the existing practice 11 until staff and applicant come forward.
12 CHAIRMAN PALLADINO:
I see.
It is 4A that really 13 says you have got to include in your facts everything that
/
14 you can pull out of the application.
15 MR. SHAPAR Yes.
16 COMMISSIONER AHEARNE:
Can I go back to ask that 17 same question on improve the process instead of defining it 18 as shortened.
Does anybody have a view on whether any of 19 these would help improve the process if improving the 20 process means you get greater assurance that the time will 21 be focused upon issues that are important to health and 22 saf ety?
23 MR. SHAPAR4 I think there is one answer to that 24 that is immediate but I am not sure that it is fully 25 responsive.
You have a certain course of events that ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W, WASHINGTON, D.C. 20024 (202) 554 2345
54 4
1 necessarily follows once you admit a contention.
The 2 contention is the basis for discovery.
So if you admit a 3 contention and it really isn't worthwhile litigating, and 4 you can determine that fairly at the threshold, it means 5 tha t you don 't get discovery on that contention and you 6 don't have to file motions for summary disposition and you 7 don 't have to try it in an actual hearing.
So you have all 8 of those savings or at least some of them, depending upon 9 the case.
But I think your question went beyond that.
10 COMMISSIONER BRADFORD Except we have already 11 established that the summary judgment business is somewhat 12 allusory because you wind up having to file more to get rid 13 of the contention.
14 MR. SHAPAR4 Al and I have had a disagreement 15 about this.
My trial lawyers tell me, and I guestion them 16 closely, that for them to prepare a motion ---
17 COMMISSIONER BRADFORD:
That is not the point I 18 was bring out.
Whatev r the answer to that question is, you 19 have to transfer most of it back to the contention stage 20 under the genuine issue of material fact standard if it 21 becomes applied to contentions.
22 MR. SHAPAR I don't think so.
If you take a look 23 a t some of the motions that have been filed for summary 24 disposition, some of them are quite elaborate and they take 25 a lot of time and all attorneys who have filed them tell me ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W, WASHINGTON, D.C. 20024 (202) 554 2345
55 1 that and I believe them.
2 COMMISSIONER BRADFORD4 Yes, but you are filing 3 the same motion now at the contention stage in effect.
{'
4 MR. SHAPAR:
No.
5 COMMISSIONER BRADFORD:
Well, only if you take 8 this assumption that the Boards will be sof thearted to the 7 intervenors.
8 MR. BICKWIT:
No, there is more than that.
9 MR. SHAPARs There is more than that.
10 MR. BICKWITs Summary disposition is filed on the 11 basis of evidence.
You are putting together evidentiary 12 submissions at that stage.
What is contemplated here is 13 really not that.
What is contemplated is a much lesser 14 obligation on the part of the person who would dismiss the 15 contention.
16 COMMISSIONER BRADFORD:
You are meeting the same 17 standard though.
18 MR. BICKWITs Yes.
19 COMMISSIONER BRADFORD:
He has less to review 20 because he doesn't have to look at ---
21 MR. BICKWITs It is the same standa rd in words, 22 but you are asking for different kinds of submissions at 23 this stage.
24 COMMISSIONER AHEARNE:
Can I interpose?
I am 25 still trying to get the question I asked.
Now, maybe it ALDERSON REPORTING COMPANY,INC, 400 VIRGINTA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
56 1 can't be separated.
In a system which will enable a focus 2 upon significant questi.ons, is the only way to address that 3 as to what will speed the process?
I am trying to view it 4 dif ferently.
len, did you have an answer to would any of 5 these options help restrict the focus to important questions?
6 MR. BICKWIT That is a harder question than the 7 Chairman 's question, but I would give the same answer.
My 8 inclina tion is to think that 3, 4A, 4B and 5 will focus the 9 hearing not necessarily on issues where there is more health 10 and safety significance but on issues where intervenors have 11 a better chance of presenting something to deal with those 12 issues.
13 In other words, I don't think you should be 14 looking only at the question of what contentions are 15 frivolous and what contentions are not and trying to come up 16 with a threshold tha t is going to throw out the frivolous 17 ones.
18 These thresholds are designed to throw out 19 con tentions which may be reasonable contentions if pursued 20 properly but the intervenor is asked to demonstrate some 21 ability to pursue them properly at an earlier stage here.
22 The thesis is that if he can't demonstrate that here, then 23 he probably won't be able to demonstrate that at the-24 hea ring..
25 COMMISSIONER AHEARNE:
Can I get an answer to my i
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W WASHINGTON, D.C. 20024 (202) 554-2345
l 57 i
i 1 question from the Board member?
i 2
MR. ROSENTHAL:
If your concern, and I think it is l (
3 a legitimate one, is over the f act that these proceedings 4 frequently are devoted to issues as to which there is a 5 genuine issue of material f act, but the issue itself in 6 terms of the safety of the plant or the environmental 7 integrity of the plant does not appear to be too important, 8 I don't think is going to be of great assistance.
9 I mean, what this will do, one of these changes if to the threshold is right as to what it may do, is to eliminate 11 contentions which may go to significant issues or may not, 12 as to which there is no genuine issue of ma terial f act in 13 that contention.
14 But in terms of an issue in which the intervenor 15 can come up and show it is relevant to the plant and it is 16 an issue that is entitled to come in under the National 17 Environmental Policy Act, let's say, as interpreted as to 18 which there is room for dif ference of opinion, that is going 19 to come in whether or not in the judgment of some or all the 20 issue really is on the whole panoply of considerations is of 21 little significance.
22 Frankly, I think that is what we really ought to 23 be getting at, and I think it requires perhaps in some 24 instances legislative action.
But as I look at all of these s
25 issues that get litigated, many of them, it seems to me, ALDERSoN REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
58 1 just aren't that significant.
It is a matter of 2 significance and not a matter of whether there is a 3 reasonable basis for difference of opinion on the particular 4 matter thnt is being litiga ted I think.
So I think a lot of 5 our focus is wrong, but I don't think, and Len may see it 6 dif ferently or the Licensing Board panel representatives may 7 see it dif ferently, but I don't think that raising the 8 threshold on ccntentions is going de very much for that.
9 MR. LAZ0s I think I would agree with that.
10 One of the other problems is that it is so much 11 easier f or an intervening party to phrase environmental 12 contentions than it is health and safety contentions that we 13 tend to concentrate and spend a large amount of hearing time 14 on environmental issues.
15 Now, I don't want to offend my environmental 16 f riends by saying those are not significant.
They are 17 indeed.
But there tends to be a focus on the environmental 18 side ra ther than health and saf ety issues which may be less 19 significant.
20 COMMISSIONER BRADFORD:
From the point of view of 21 the standard, as John enunciated it, that is a contribution 22 to health and safety, it is true that you just have to come 23 up with a different standard or supplement the one you 24 suggested in terms of significant impact on the environment.
25 COMMISSIONER AHEARFE I would try to say ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
59
+
1 important to health and safety.
2 COMMISSIONER BRADFORD:
Yes, because even the most r.
3 important environmental based contentions are not going to e,
4 be on health and saf ety.
5 COMMISSIONER AHEARNE I thought I said important 6 and significant to health and safety.
7 COMMISSIONER GILINSKYa In terms of the problem 8 the Chairman was raising, the question of extended hearings 9 and so on, as far as I know the environmental hearings 10 haven 't been holding up plants.
At least we have been 11 getting through those hearings earlier as far as I know.
12 MR. FRYE:
Generally we do.
13 CHAIRMAN PALLADINO:
Aren't the environmental 14 issues part of this hearing process?
15 MR. FRYE:
Yes.
16 COMMISSIONER GILINSKY I am just saying that just 17 looking at the schedule for the various plants the way 18 things seem to be working now the environmental hearings are 19 completed first and the safety hearings so far would end up 20 taking the most time I think because the SER comes out later.
21 MR. FRYE:
That is generally correct.
The SER 22 comes out last and therefore the safety issues are the last 23 to be heard.
24 CHAIRMAN PALLADINO:
I wonder if I could take a t
25 minute just to make some comments and perhaps a suqqestion ALDERTCN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W WASHINGTON, D.C. 20024 (202) 554-2345
60 1 because I do have to quit reasonably close to 3:30 today.
2 3
e.
5 really a practical or perhaps not even a lawful approach.
6 I do feel that Option 1 adds quite a bit because 7 it does say we want you the intervenor to give us as good a 8 record as you can just as we required the applicant to give.
9 The reason I find 4B a problem is because it seems to to contradict that.
It says you don't have to do it with i
11 regard to the application.
12 I think that Option 2 adds something by saying 13 that there must not be some doubt that you can get a set of j
e-14 f acts to support your contention.
s...s 15 No. 3 says the facts must be material and it also 16 allows the Board to use its own technical judgment.
17 No. 4 I gather adds to No. 1 by saying you better 18 vell know the application and you have got to use it.
19 Now, I am not prepared in my own mind to knov 20 whether any of these are going to help.
Somehow just the 21 f ac t that you ask them to give a record may help.
22 I would suggest the Commissioners might think 23 about some pilot period during which we might try this 24 either on selected cases or for a period of time.
L 25 COMMISSIONER GILINSKY:
Try what?
ALDERSoN REPORTING COMPANY,INC,
' " " ' " ' ^ ^ " " * * ^ ' " ' " ' " -
2 2"202, su.22.s
61 1
CH AIRM AN P ALLADINO:
Wha tever we decide on.
l 2
(Laughter.)
l 3'
CHAIRMAN PALLADINO:
I am leaning toward 4A myself
(-
f 4 a t the moment, but I am leaning only very slightly and I 5 could be swayed to lean any other direction.
l 6
(Laughter.)
7 CHAIRMAN PALLADINO:
I don't feel that I am that l
l l
8 confident of what I have learned here yet.
But assuming l
l 9 tha t we wanted to pick 4A or 3 or whatever we wanted to pick l
i 10 we might think in terms of trying it, either if it is 11 practical or if my legal colleagues here say it is practical l
12 to go back and look at past cases and maybe that is one way I
i 13 of trying it.
t 14 COMMISSIONER BRADFORD:
That migh t be a mere 15 successful way of trying it just because if it turns out not l
l 16 to work it will have made a hash out of the ongoing 17 proceeding.
18 CHAIRMAN PALLADINO:
Well, I don't see now any of 19 them could r ea lly hurt the proceeding.
Perhaps 4A is a 20 little strong in some regards but it is consistent with 1.
21 I don 't see how we could hurt a proceeding.
We might just 22 take some of the time that would come later and move it up 23 f ro n t.
If we found that it caused a disaster in a 24 particular hearing, well we could recover it pretty quickly.
\\s 25 I am open to any other suggestions.
The reason ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. O C. 20024 (202) 554 2345
62 1 for dwelling on it now for a moment is we have spent two 2 meetings on this subject.
3 COMMISSIONER BRADFORD:
I think trying to close on 4 a Commission preference, if you will, and then testing it 5 against a couple of sort of multi-f aceted past proceedings 6 is proba.y a pretty good one just to see whether we then I
7 would be happier with the results.
8 CHAIRMAN PALLADINO:
Are there cases that are 9 recent enough in the past that they would be useful to us 10 without our getting into any conflict questions?
11 COMMISSIONER AHEARNE:
Let me point out that to 12 apply it to the past, pa rticula rly in the sense of 1 and 4A 13 that it would be very dif ficult because 1 has at the heart 14 telling the intervenor that they are supposed to lay out a 15 lot of information.
1F now, if you look at that it wasn't laid out, that 17 doesn 't mean that it wouldn 't ha ve been.
It was just that 18 it wasn't required to be laid out.
19 In 4A that the reference has to be specificall'y to 20 the application, the f act that it wouldn't have been in the 21 pa s t, I don't think you can interpret very much.
You can 22 interpret something if it is laid out, but if it isn't laid 23 out you can 't interpret much because it doesn't mean that
's they hadn't read the application and it might very well mean i
25 tha t there was no need to have reference to it.
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COMMISSIONER BRADFORDa What you should be looking 2 for I think, John, are contentions which in fact would not 3 have survived, I mean the ones P. bout which you could say 4 well, it would be easy enough to refer to the application.
5 COMMISSIONER AHEARNE:
Peter, I disagree with 6 you.
I think you can find the ones that would have 7 survived, but I don't think you can find the ones that 8 wouldn"t have because that would make the assumption that 9 the in tervenor, if asked to have provided the list of 10 ma ter!.al tha t they would have reference to or reference the 11 application, could not have.
12 My point is that there is no way to reach that 13 conclusion unless you want to go in detail through the 14 record and find that given the chance they still could or if 15 the issue came up in the hearing they could not show that 16 they had ever read r.2 application, for example.
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17 CHAIRMAN PALLADINO:
You know, an important part 18 o f a pilot program would be to see how the intervenors can 19 adapt and what problems they f ace.
In all fairness as long 20 as we have the process I.hink we ought to be reasonably 21 f air in it.
22 MR. SHAPARs You mean apply prospectively to new 23 cases.
24 CHAIRMAN PALLADIN04 Yes, to either selected new 25 cases or for a selected period of time.
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COMMISSIONER BRADFORDs Of course one other 2 possibility there is to take the position we think r
3 preferable and just meet with a group of intervenors' 4 counsel and let them tell us what difficulties they would 5 foresee.
6 CHAIRMAN PALLADINO:
I don't think 1 can hurt the 7 process.
8 COMMISSIONER AHEARNE:
I think that would be a 9 useful intermediate step.
10 COMMISSIONER GILINSKY:
One seems like a good idea.
11 CHAIRMAN PALLADIN04 And I think it has some 12 elements tha t will improve it.
The only difference between 13 it and 4 A is that 4A comes across strongly that you havr got 14 to really base it on the application.
That worries me a 15 little bit.
I am not sure that 3 is maybe not a better 16 place to try it, except that there is some controversy over 17 whether Board members ougnt to use their technical judgment.
18 MR. BICKWIT They do in 4 A also.
19 CHAIRMAN PALLADINO:
Well, somebody didn't write 20 it down like that.
The mere fact that you had to write it 21 down worried me because I always thought they used their 22 technical judgment.
That is what they were there for.
If 23 they didn't need technical judgment 24 MR. BICKWITs They do when they decide the case.
N 25 COMMISSIONER BRADFORD:
I was going to say it is ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
65 1 not that they are expected to blind themselves.
It is just 2 that they are expected as the proceeding goes along to make 3 sure that there is an adequate record there as a basis for 4 their exercising their judgment.
5 CHAIRMAN PALLADIN04 You mean they are allowed to 6 exercise their judgment on the merits of the case but not on 7 contentions?
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COMMISSIONER BRADFORD:
They are allowed to 9 exercise it based on the record tha t is bef ore them.
The 10 dif ficulty is when the contentions are being heard there 11 really is no record.
12 CHAIRMAN PALLADINO:
That is one of the problems 13 and that is where judgment would be most required.
When you 14 have a good record you don't need judgment.
You weight 15 them.
I am sorry, yes, you need judgment but judgment is a 16 little easier to perform.
17 (Laughter.)
18 COMMISSIONER BR ADFORD But in order to get a good 19 record on a heavily technical issue you need technical 20 judgment just to know what questions and avenues to pursue 21 as the hearing is going along.
22 CHAIRMAN PALLADINO:
Well, only for giving some 23 basis for the deliberation.
We might want to focus on 1,
2 24 and 3 combined and being silent on this technical judgment
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25 and see in your own mind whether you think pi'ot testing it ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
66 1 prospectively would give us a problem.
2 COMMISSIONER AHEARNE:
Just for myself I would say 3 that it may end up that I can't be silent on the technical
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4 judgment issue.
I think that is critical.
5 COMMISSIONER BR ADFORD:
May just say one more 6 thing about this technical judgment point because I would 7 hate to leave the matter resting where Al and I perhaps 8 unwisely lef t it a while ago that this was something that 9 lawyers had somehow put across on the world because lawyers 10 are the ones who put the process together.
11
( Laughter. )
12 COMMISSIONER AHEARNE:
Actually I am having copies 13 of that transcript made.
14 (Laughter.)
15 COMMISSIONER BRADFORD:
I at least let it go by at 10 the time and I don't want to leave the transcript unsettled 17 to whatever use John will later make of it.
18 The real point is, if you will, one of 19 red undancy.
The introduction of the lawyers' judgments is 20 based on case law and then gets reviewed a number of times 21 each of which gets f urther and further away from any review 22 of the f acts in the record.
23 The legal opinion of the Licensing Board then goes 24 on and gets a heavy legal review by the Appeal Board, and if i
25 the Commission doesn't get involved it goes off to the ALDERSoN REPoRDNG COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
67 1 courts where it gets another review each one of which as it 2 gets further from the original proceeding says we are taking 3 the f acts as they appear in the record and as they are 4 interpreted by the Board and we are applying the law to 5 them.
6 So that if there is any arbitrariness in the use 7 of cases at the first or second level by the lawyers it is 8 going to be picked up.
It is going to be briefed and it is 9 coing to get caught later on.
10 But the factual record really doesn't shift very 11 much from th e time that it is first made.
That is why it is 12 important for people to get a crack at the facts as they are 13 being established in the first go-round rather than having 14 individual technical reviewers later on continue to 15 introduce their sort of technical / fact ual, because it would 16 be a factual conclusion that results, views into the 17 process.
18 There really is no mechanism for a factual review 19 af ter the record is closed.
There are no other technical 20 experts who are brough t in to a rgue to the Court of Appeals 21 or to argue to us.
At that point it is lawyers writing 22 b riefs.
23 COMMISSIONER AHEARNE:
You are saying that because 24 therq are other lawyers to
- c. neck the lawyer judgment that t
25 you are happier with the lawyers using their judgment?
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CONHISSIONER BR ADFORDa Well, I am saying that the
'2 process really is so structured that the technical experts, 3 if you will, are supposed to collide in the proceeding and 4 that technical / factual record is supposed to emerge from 5 that on which the Board then reaches some set of conclusions.
6 COMMISSIONER AHEARNEa Although I recognize your 7 point, but it could be interpreted from what you are saying 8 is that the lawyers structure the process so that the 9 lawyers' judgments are reviewed by the lawyers but the 10 technical people collide in the hearing.
11 COMMISSIONER BRADFORD:
Well, the technical 12 people's collision is reviewed and conclusions drawn from it 13 in the first instance by a Board which has technical members 14 on it.
15 COMMISSIONER AHEARNE:
And in the second instance 16 by an Appeal Board which has technical members on it.
17 COMMISSIONER BRADFORDa Yes, but I think at that 18 point they are supposedly to be taking the record as they 19 find it.
The opportunity to introduce new technical 20 perspectives is gone af ter the record itself is closed.
21 CHAIRMAN PALLADINOa John, the reason I was 22 willing to be silent on this is that I think technical 23 experts will have used their judgment to the extent it ic 24 necessary to make a determination and I don't think it is up 25 to us to say their allowed to use it or not allowed to use 5
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1 it.
They will use it even if their silent in using it and l
f 2 even if they don't make any calculations.
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COMMISSIONER AHEARNE:
Joe, I think it is a 4 stronger constraint on them currently.
The practice and 5 teaching of this agency are tha t they really should not at 6 the contention stage.
7 CHAIRMAN PALLADINO:
At the contention stage?
8 COMMISSIONER AHE ARNE:
Right, and that is what we 9 are speaking of here.
We are talking here about ---
10 CHAIRM'AN PALLADINO:
Well, suppose on the biomass 11 case that a technical expert goes home and he does these on 12 the back of an envelope and he says it doesn't make sense at 13 all and he does in and says it doesn 't make sense at all, 14 just look at the Project Independence.
15 COMMISSIONER AHEARNE:
That is what Jack Buck did.
16 (Laughter.)
17 CHAIRMAN PALLADINO:
That is because the lawyers 18 didn't overrule him.
19 COMMISSIONER AHEARNE:
No, no, the Commission 20 overruled him.
21 COMMISSIONER BRADFORD:
The Appeal Board didn't 22 accept it in the first instance.
23 COMMISSIONER AHEARNE:
The Appeal Board said no.
24 Jack Buck on the Appeal Board said, look, here is how you 25 throw it out.
By a two to one vote the Appeal Board said ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
70 1 no, that is wrong.
It came to the Commission and the 4
2 Commission said four to one the Appeal Board is right in now
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3 allowing tha t.
4 So right now we have a situation which you said is 5 not allowed.
6 COMMISSIONER BRADFORD:
Three of those four 7 members in the majority on the Commission were not lawyers.
8 (Laughter.)
9 COMMISSIONER AHEARNE: ' Oh, lawyers are very 10 successful at leading many people astray.
11 (Laughter.)
12 CHAIRMAN PALLADINO:
Well, let me get back to my 13 old suggestion.
With or without silence from No. 3, I think 14 you might' give some thought to whether we can prospectively 15 apply it, either 3 or 4A, to pilot testing.
16 MR. SHAPARs I don't see how you can, you know, 17 apply it just to one case.
My suggestion would be if you 18 plan to go in this direction that you put it out as an 19 interim rule.
20 CHAIRMAN PALLADINO:
I mean, that is the vehicle.
21 I just was trying to get some focus on our next discussion.
22 You my come back and say you can't do it on one case and you 23 have got to do it on at least "X"
and we ought to do it on 24 interim rule.
i 25 I would also like to see whether we can get some ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
71 1 agreement as to whether it ought to be 1, 2 or 3.
2 MR. BICKWITs 3
4 MR. SHAPARs 5
i 6
COMMISSIONER AHEARNE:
7 MR. SHAPARs 8,
9 10 i
11 12 HR. BICKWITs 13 CHAIRMAN PALLADIN0s Well, we have another meeting 14 a t least scheduled on this and I think it is still marked' 15 closed.
I will have to check that.
16 MR. BICKWIT Let me just make one observation 17 that there is a memo f rom the Executive Legal Director to 18 the Commission dated April 14th which does look at some past 19 ca-es and apply a standard similar to a standard in Option 3 20,o contentions in those cases.
21 CHAIRMAN PALLADIN0s We vill stand adjoured.
22 (Whereupon, a't 3:35 p.m.,
the closed meeting 23 adjourned. )
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24 25 ALDERSON REFoRTING COMPANY,INC.
400 VtRGINIA AVE., S.W, WASHINGTON O C. 20024 (202) 554 2345
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TUCLEAR REGULATOR! COMMISSICN m.This is to certif*/ bhat the attached ;;receedings befcre the
~..f COMMISSION MEETING in the matter ef*
CLOSED MEETING - EXEMPTION 10 - DISCUSSION OF REVISED LICENSING PROCEDURES PROPOSED RULE-CHANGE TO PART 2 Cate cf Proceeding:
Sectember 23, 1981 UCCESC llu!1ber:
Place of Proceeding: ' Washington, D. C.
- 4cre held as hereis appears, anc cha't. this is the criginal :: anse:-ips therecf fer Ohe file of the CO=:::13sicc.,
Mary C. Simons Official Empertar (~7;ed)
Arri Official Repercer (514:acure) r I
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