ML20032D814
| ML20032D814 | |
| Person / Time | |
|---|---|
| Issue date: | 10/29/1981 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| Shared Package | |
| ML20032D812 | List: |
| References | |
| REF-10CFR9.7 NUDOCS 8111170537 | |
| Download: ML20032D814 (89) | |
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October 29, 1981 CFFICE OF THE SECRETARY COMMISSION DETERMINATION REGARDING PUBLIC DISCLOSURE l
UNDER 'Lii2 GOVERNMENT IN THE SUNSHINE ACT OF:
Discussion and Possible Vote on Revised Licensing Procedures Proposed Rule Change to Part 2 October 1, 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 5/3 5/25 10 CFR 9;104 (a) (10) 6/1 6/23 10 CFR 9.104 (a) (10) 13/4 13/10 10 CFR 9.104 (a) (10) 14/23 14/25 10 CFR 9.104 (a) (10) 15/1 15/11 10 CFR 9.104 (a) (10) 16/21 16/25 10 CFR 9.104 (a) (10) 17/3 17/11 10 CFR 9.104 (a) (10) 27/16 27/25 10 CFR 9.104 (a) (10) 28/1 28/2 10 CFR 9.104 (a).(10) l t
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Samuel J.
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CLOSED MEETING - EXEMPTION 10 DISCUSSION AND POSSIBLE VOTE ON REVISED LICENSING PROCEDURES PROPOSED RULE CHANGE TO PART 2
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October 1, 1981 pAczg:
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1 UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION r
4 DISCUSSION AND POSSIBLE VOTE ON REVISED LICENSING PROCEDURES 5
PROPOSED RULE CHANGE TO PART 2 6
7 CLOSED MEETING - EXEMPTION 10 8
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Nuclear Regulatory Commission Room 1130 10' 1717 H Street, N.
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Washington, D. C.
11 Thursday, October 1, 1981 12 The Commission convened in closed session, 13 pursuant to notice, at 10:05 a.m.
14 15 BEFORE:
NUNZIO PALLADINO, Chairman of the Commission 16 VICTOR GILINSKY, Commissioner PETER BRADFORD, Commissionar s
17 JOHN AHEARNE, Commissioner THOMAS ROBERTS, Commissioner 18 ALSO PRESENT:
19 S. CHILK 20 L. BICKWIT G. CUNNINGHAM 21 B. PARLER A. ROSENTHAL 22 T. COTTER F. REMICK 23
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CHAIRMAN PALLADIN0s Will the meeting please come 3 to order.
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This meeting is a continuation of our discussions 5 on the Revised Licensing Procedures - Proposed Rule Chango 6 to Pa rt 2.
7 This meeting remains closed at least until we come 8 to such point in the contentions that counsel advises that 9 we should open it.
10 As I recall, the way we left it last time was as 11 follows:
12 One, I had proposed that we try to decide on some 13 approach that we might pilot test and we asked the General 14 Counsel to investigate the problems or capabilities we might 15 have in doing the pilot testing and in a few minutes I will 16 call or him to talk about that.
17 I also made an effort to see if we could get a 18 consensus on a proposal and to that end I have written 19 something up here that I would like pass out to the 20 Commissioners.
21 COMMISSIONER AHEARNEs I thought the General 22 Cou nsel was ---
23 CHAIRMAN PALLADIN0s That is why I went outside to 24 find out.
25 MR. BICKWITs I am sorry, you thought the General ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
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1 Counsel was what?
2 COMMISSIONER AHEARNE Was drafting a revision.
3 MR. BICKWITs No.
My understanding of the
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4 Commission's instructions was that we were supposed to look 5 into the viability of a pilot approach and we have.
6 CHAIRMAN PALLAD: TOs I am sorry that we didn't 7 make clear what we wanted done by OGC.
I had thought that 1
4 8 maybe this handout that I would like to pass around might 9 fill that gap.
10 (Document is distributed.)
11 CHAIRMAN PALLADINO:
My proposal goes like this.
12 I believe we should adopt Option 1 not necessarily because 13 it streamlines the process but I think it improves the
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14 process.
I believe it is perfectly reasonable to require an 15 intervenor to disclose all the known facts and sources of 16 f ac ts at the beginn',c.
':is is the rule which apparently 17 applies to the u v a!
"q Lo the applicant and making it 18 apply to the inte::v=;nor would seem reasonable.
19 Now, havini adopted that one, I did not feel that 20 we could go to 4(b) because 4(b ) seeted to violate that in-l 21 p ar t.
22 Also it was suggested that we adopt Option 2.
I 23 believe it cannot be reasonably disputed that hearing time 24 should not be expended on contentions which have no 25 conceivable f actual support.
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Then I wou d say we ought to adopt those two and 2 in addition adopt 4(a) on the basis that I don't believe it 3 is unreasonable to require that an intervenor be on notice 4 of the facts in the application.
I think that is consistent 5 with item 1.
The staff and the Boards are on notice.
I do 6 appreciate this will be a burden on the intervenor, but I 7 think it is consistent with itet No. 1 and should be 8 something they can and should bear.
9 I offer this to see if we can focus our 10 discussion.
I am sorry to bring it to you so late but we 11 didn't get it settled until this morning.
12 COMMISSIONER BRADFORO:
I am a bit disadvantaged 13 b y just having it this morning because I thought we would be
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14 talking more about a pilot approach.
15 CHAIRMAN PALLADINO:
Let me say that this would be 16 the basis on which we might make a pilot run.
I was not 17 proposing that we clearly settle on this, but this would be 18 the approach we might use in a pilot run.
19 Maybe before discussing whether or not this is the 20 righ t thing to try on a pilot maybe you would want to hear 21 f rom the General Counsel on what would be involved in a 22 pilot and that may cause some revision to what we want to do
- 23 with it.
24 Len, do you want to proceed.
25 MR. BICKWITs Wha t was suggeated last time is tha t ALDERSoN REPORTING COMPANY. INC.
400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
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3 1 the Commission might want to apply a new contentions rule to 2 a proceeding and pick out those proceedings for special 3 treatment.
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CHAIRMAN-PALLADINO:
9 COMMISSIONER BRADFORD:
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13 MR. BICKRITs 4
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14 15 16 17 MR. BICKWITa 18 19 20 21 22 23 h
24 CHAIRMAN PALLADINO:
I wonder if any of our es 25 colleagues on the Licensing Boards or the CPE ---
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MR. BICKWIT I guess I am speaking in part for 2 the Boards in coming to these conclusions.
I will 3 supplement it if you would like.
4 MR. COTTER:
I am not clear exactly on exactly 5 what the prospective workload is going to be in the next 6 three years with respect to new proceedings.
I have a vague 7 recollection that there are about two or three operating 8 licenses that have been noticed for hearing and are wai',ing 9 to be blessed.
I do not know what is in the pipeline.
i 10 assume that NRR would have some da ta.
11 COMMISSIONER AHEARNE:
Yes, there are a 12 substantial number.
13 COMMISSIONER BRADFORD:
Let me probe that a little 14 further, Tony.
Are you saying that most of the licenses 15 that are actually ex,9cted to be issued in the next year or 16 two are already past the point at which this rule would i
17 apply ?
18 MR. COTIER:
That is my impression.
I think we 19 have something in the order of 20 opera ting license 20 proceedings going on now that are supposed to be completed 21 within the next three years.
1 22 COMMISSIONER BRADFORD:
So that this rule in any 23 case wouldn ' t apply to those.
There must be about 20 more 24 of them, not all of which will be contested.
25 COMMISSIONER AHEARNE:
A large number undoubtedly.
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ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554-2345
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MR. BICKWIT:
We have some recently acquired data 2 from NRR.
3 MR. ROTHSCHILD:
I talked to Bob Tedesco a few 4 minutes ago.
Limerick was just recently noticed as an OL so 5 I assume if we got a new rule in effect contentions would 6 not be filed there.
7 In the next six months or so they are expecting 8 perhaps to receive applications and notice for hearings from 9 Seabrook, Harris e nd Vogel.
10 CHAIBMAN PALLADINO:
Could you speak into the mike 11 a little more, please.
12 MR. BOTHSCHILD:
In the next six months the staff 13 is expecting to receive applications and notice for hearings
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14 perhaps on Seabrook, Harris and Vogel which would be OL 15 proceedings.
COMMISSIONERGILINSKya Seabrook has not yet been 16 17 noticed then?
18 MR. ROTHSCHILDs No.
I don't think they have even 19 necessa rily received the application.
They are just 20 expecting it.
I wasn't quite sure f rom my conversa tion, but 21 those are three possibilities over the next six months or 22 so.
It would be a little on the optimistic side perhaps if 23 you were to expect all three of those to fall in that 24 category.
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25 In the next year or two there are a number of
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9 1 proceedings that will be noticed ranging from Hartsville, 2 Hope Creek, Yellow Creek, Phipps Bend, Beaver Valley-2, 3 Millstone-3 and Cherokee.
There are a number.
Of course, 4 there is nothing that would preclude the Commission from the 5 ongoing proceedings where contentions have not been filed if 6they wanted to apply the rules to apply it there.
7 I assume in several cases they will reopen for TMI 8 issues or other kinds of things where af ter the last staff 9 SER has not been published yet and there will be an 10 opportunity to file new contentions.
But, you know, tha t is 11 dif ferent f rom a proposal of just taking it where no 12 contention has ever been filed in the proceeding previously.
13 CHAIRMAN PALLADINO:
What were the first three?
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14 MR. ROTHSCHILD4 Seabrook, Ha rris and Vogel.
If 15 ve move quickly enough we could probably pick up Limerick 16 which has already been noticed for a hearing.
17 COMMISSIONER AHEARNE:
Len, when you talk about a 18 pilot program, when does that program end?
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19 completion did you have in mind?
For example, one might 20 conclude that the pilot program for purposes of review would 21 end when hearing began, or you might conclude our program 22 ends when the hearing ends, or you might conclude it ends 1
23 when final court review is over.
What did you have in mind?
24 MR. BICKWIT:
I had in mind that the program 25 a ttaches or doesn ' t attach to a given proceeding.
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W, WASHINGTON, D.C. 20024 (202) 554-2345
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COMMISSIONER AHEARNEs Right.
2 MR. BICKWITs If you have a starting date which is 3 in time to pick up these three or four proceedings that it 4 attaches to those proceedings.
5 COMMISSIONER AHEARNE:
Right.
When does the pilot 6 program end?
7 HR, BICKWIT Well, that I said you have various 8 options.
You could draft it so that it con tinue.s but you 9 get a report back on how it is doing.
By that time you 10 decide whether you want to continue it or you sunset it.
11 COMMISSIONER AHEARNE:
What I am trying to get at 12 is had you thought about what would make sense?
A pilot 13 program has inherently the concept that you are going to 14 evaluate how something worked to see whether or not it is a 15 good idea.
Had you thought about what stage in that process 16 you would have to be in in order to have the kind of 17 information you would need to decide whether or not it had 18 worked?
19 MR. BICKWIT Oh, I see.
I think by the time you 20 got to hearing I think you will have a fairly good idea.
21 You will see which contentions have been rejected and you 22 will see whether there is anything going on in the hearing 23 room tha t suggests 'ta t the contention-admitted are somehow 24 more worth focusing on than the contentions that have teen 25 rejected.
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
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COMMISSIONER GILINSKT Than what?
2 MR. BICKWITs I am sorry?
3 COMMISSIONER GILINSKT4 Than what?
4 MR. BICKWITs Than the contentions that have bee:
5 rejected.
6 COMMISSIONER BRADFORDs Or contentions that have 7 gotten into other proceedings that tho'.se Board members have 8 had experience with.
9 CHAIRMAN P.\\LLADIN04 You also wan t to know the to impact on the intervenor.
I would think you would want 11 th r input also, would you not?
12 COMMISSIONER BRADFORD:
I should think you would 13 really want two reports.
Len is right.
I think once you 14 apply the rule to a proceeding you are committed to 15 following it through in that proceeding unless it just turns 16 out that is it reeking havoc with it.
You can't very well 17 midway through that proceeding adopt a different contentions 18 rule without having to let more contentions in.
I should 19 think you would want to hear after the decisons have been 20 mad e on the contentions and then again well into or at the 21 end of the hearing.
22 COMMISSIONER AHEARNE:
I was trying to get a feel 23 ---
24 MR. BICKWIT:
--- for how quickly you could get a 25 report or when you would apply the sunset.
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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COMMISSIONER AHEARNE:
Tha t is right.
2 MR. COTTER:
I am getting very conservative in my 3 old age.
4 (laughter.)
5 HR. COTTER:
I mean, you are telling me and my 6 Boards that we are supposed to complete hearings in a 7 ten-months schedule and we are supposed to cope with 8 something on the order of four to ten times more hearings 9 than we have ccped with in the past and I get nervous when 10 you tell me you are thinking about changing the rules.
11 (Laughter.)
12 MR. COTTER:
I think at least some assessment 13 should be made of the possibility that a change in the k
14 threshold f or contentions might have the potential to be 15 counterproductive because it will genera te the need to 16 establish a body of law around that threshold and that body 17 of law is going to come in the first instance from the 18 rulings that the Licensing Boards make.
19 In the second instance I think you are going to 20 see probably substantially more appeals to the Appeal Board 21 because you are going to be knocking out intervenors and 22 they are going to have a right to go upstairs and they are 23 going to have to deal with it and start evolving some 24 standards as apply to these individual contentions.
25 Then, finally, I am personally convinced that the ALDER $oN REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
.13 1 intervenor body would go to the courts to get some kind of a 2 ruling about whether or not your changing the rules on them 3 was somehow not being f air to them.
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8 9
10 11 I think some assessment of the potential f or delay 12 evolving out of the need to establish a body of law around 13 this should be assessed.
1 5F 14 HR. ROSENTHAl.
I would endorse that.
I think a 15 pilot program is fraught with extraordinary perils as a 16 practical ma tter.
I would tuch rather frankly see the 17 Commission consider these matters and make a judgment as to 18 vha t, if any, increase in the threshold it wishes to put 19 into ef f ect, amend the rules accordingly and hope that there 20 would be accompanying it a statement of considerations which 21 woub.d provide some reasonable measure of guidance to the'-
22 Licensing and Appeal Boards as to what the Commission 23 precisely has in mind and then be done with it.
Eh 24 I think Tony is quite right that is the threshold 5
25 is raised it is going to be an entirely new ball game.
I ALDERSoN REPORTING COMPANY INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
14 1 think there has been this body of law that has developed 2 under the present 2.714(a).
There is going to be all kinds 7;
3 of challenges to rulings of the Licensing Boards under your 4 new standard, whatever that standard may be, and the.re 5 clearly will be increased appeals to the Appeal Boards in 6 circumstances where. the result of the rejection of 7 contentions under the standard is to the petitioner out e altogether.
That is, as you know, an appealable order.
9 I',think it may very well get back in the courts.
10 The courts ruled on the validity of the existing contention 11 requirement, at least the Columbia Circuit did back in 1973 12 in the P raire Isl'and case.
I am sure somebody is going to 13 take this to court.
We might as well in the venacular have 2:
- 2" 14 it clean.
15 The problem I have with a pilot program is that 16 t'.is is put in, you know, as sort of something, well we are 17 going to look at this thing and are going to try it out.
At 18 the same time you are going to have appeals running up from 19 decisions in which the licensing Board has applied the new 20 sta ndard and the Commission is going to be then 21 re-evalua ting the whole thing from anothec standard and I 22 think it would be extremely counterprodt ctive.
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14 vould much rather see the Commission in the venacular of 15 bite the bullet and come to a conclusion as to what ther 16 vant to do, go do it and see wha t ha ppens.
Obviously no 17 rule of this Commission or rule of practice is set in 18 concrete.
If it doesn ' t wo rk, the Commission is always free 19 then to make whatever amendments might be thought desirable 20 on the basis of pragmatic experience.
21 MR. PARLEBa The difficulties that the two judges 22 have suggested that may exist because of a new standard that 23 is adopted in a pilot program depends upon, of course, what Ek 24 the standard is.
Ther might be talking about a standard for 25 th< ailmission of contentions, but a sugge.sted pilot program ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA An S.Wm WQ@HIN8 TON, D.@. Kd6B RfFf4593 fSnCl
16 1 such as the outline.that you passed out, Mr. Chairman, 2 doesn 't really reach that point.
It deals with another 3
3 piece of the problem, a very important piece.
That is, W
4 changing the rules so~that we can get more information and 5 better information to identify a t the outse t wha t. the 6 intervenor's problem is and why, it is kind of difficult for 7 me to understand why a rule change unich would emphasize 8 that would present the potential for these kinds of problems 9 that have been alluded because I would assume, and in fact I 10 know that in a couple of cases, or I am familiar with a 11 couple of cases in which the prer,iding officers have to 12 apply their own standards because of lack of guidance in the 13 regulations and from the decision.
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14 The decisions tell these presiding officers that 15 they have plenty of discretion but they shall not get into 16 the merits but the rest of the guidance is up to them and 17 they have to deal with these problems on a case-by-case 18 basis.
If general guidance is given to them, it is 19 difficult for me to understand for the moment why that 20 should be so difficult.
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COMMISSIONERGILINSKY:
Could you give us those 2 examples?
3 ER. PARLE'R:
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HR. BICKWIT:
9 10 11 12 HR. PARLER:
Shall I pro'ceed?
s 13 HR. BICKWIT:
I would like to hear from the
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15 COMMISSIONER BRADFORD:
Do you have to name the 16 cases in order to give us the situation?
17 MR. PARLER:
No, I don't have to name the cases.
18 The Boards in at least two instances have recognized the 19 situation as I have tried to describe it.
They have plenty 20 of discretion but not much guidance.
So they have to and 21 have developed for themselves criteria which the y apply in 22 determining whether or not the basis requirement has been 23 m e t by an itervenor in a particular case.
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24 CHAIRMAN PALlADINO:
And this varies from Board to W
25 Board?
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W, WASHINGTON, D.C. 20024 (202) 554 2345
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MR. PARLER:
Well, I am not prepared to say that 2 because I haven't conducted a survey.
But as far as that 3 possibility is concerned, I would guess I would personally 4 be surprised if there were uniformity in that regard across 5 the Board.
It would certainly be a change from the direct 6 experience that I had in these matters in the early '70's 7 and the mid '70 's.
8 One factor, for example, in this case which I will
. 9 not name that the Board laid down is that the showing by the 10 intervenor relates to specific sections of the FSAR or the 11 environmental report that bears a close similarity to Option 12 4 ( a ).
13 Another factor is the showing is sufficient to 14 provide general notice of what the issue is to the 15 application who, af ter all, has the overall or the ultimate 16 burden of proof.
17 COMMISSIONER'GILINSKI:
What did you take your 18 notes from?
Is it from a decision?
19 MR. PARLER:
No, from a prehearing conference 20 order in a case.
21 COMMISSIONER GILINSK :
In which they accept or 22 rejected contentions ?
23 NE. PARLER:
Yes.
24 COMMISSIONER GILINSK :
Could you tell us what the 25 con tentions were ?
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D C. 20024 (202) 554 2345
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MR. PARLER:
I don't have that information.
It is 2 in the prehearing conference order that was issued in a case 3 on July the 28th, 1981.
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CHAIRMAN PALLADINO:
But these are the criteria 5 that the Board used?
6 MR. PARLER:
Right.
I thought that was what you 7 wanted to focus on.
There are several more if you want me 8 to continue with the criteria.
9 CHAIRMAN PALLADINO:
All right, why don't you.
10 MR. PARLER:
The third criteria was the 11 explanation or foundation f or f actual assertions:
are they 12 plausible or are they f rivolous?
That is kind of like the 13 Option No. 2.
COMMISSIONERGILINSKf:Wait.
Option No. 2 says 14 15 that no conceivable factual support is possible.
16 MR. PARLER:
That why I said kind of like.
I 17 didn ' t say exactly like.
18 COMMISSIONER GILINSK :
Well, plausible is a 19 little dif ferent than no conceivable.
20 CHAIRMAN PALLADINO:
Well, don't worship these i
21 words.
Worship what Option 2 says.
22 MR. PARLER:
The next one is has the issue been 23 litigated and have the issues been resolved at the
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24 construction permit stage?
If they have, have the 25 circumstances changed and has the intervenor shown that they ALDERSoN REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W, WASHINGTON, D.C. 20024 (202) 554 2345
20 1 have?
2 Another one is if the allegations are true would 3 they make a difference in the proceeding in the outcome?
4 That introduces the materiality concept, at least as I 5 understand it in the words of genuine issue of material fact 6 which would have a consequence on the outcome of the case.
7 Even if a contention is marginal, on the other 8 hand, has the intervenor indicated enough to suggest that 9 because of the intervenor's f amiliarity or perhaps 10 non-technical familiarity the internvenor's participation is 11 likely to be helpf ul such as in the emergency planning area 12 where local citizens, even though they might not know too 13 much about the technical aspects of the plant are quite 14 f amiliar with how the local organizations function or do not 15 function in times of emergency.
18 Is the contention within the jursidiction of the 17 Board?
18 Does it attack a rule?
19 Is it a subject of a Commission proposed rule or a 20 policy statement such as the policy statement that was 21 issues last year on Class 9 accidents.
22 Those are the kinds of things that at least in two 23 cases some Boards look at in determining whether or not the 24 basis requirements are met.
25 COMMISSIONER GILINSK You see to be saying that j
1 ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON. 0.C. 20024 (202) 554 2345
21 1 our current rules permit us to introduce these sorts of 2 criteria.
Why do we need to change the rules then?
3 CHAIRMAN PALLADINO:
Well, one reason might be 4 because aot every Board does it.
5 MR. PARLER:
I don't know whether you need to 6 change the rules or not, but at least some of the Boards, 7 accord'ng to the printed report feel that they don't have 8 the adequate guidance and on a case-by-case basis they have 9 to develop the guidance themselves.
That would be the 10 answer I would give to your question.
11 COMMISSIONER GILINSK s Let me ask you this.
Do 12 you think the Boards are acting wi thin the discretion that 13 is allowed them under our rules in choosing these sorts of 14 criteria?
15 MR. PARLER:
Well, I would have to study the 16 situation much more caref ully than I have.
I think if they 17 require an evidentiary showing and deal with these matters 18 on the merits that I would agree with Al Rosenthal and 19 others that that would be beyond the discretion that.they 20 have.
21 The Supreme Court of the United States has said 22 that we can require a threshold which is sufficient for a 23 presiding board or a decision-maker to decide whether a 24 reasonable mind should inquire f urther on certain matters.
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25 I don ' t know which of there things are within that framework i
' ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
22 1 and which are not.
2 MB. BICKWIT:
I think they are all within the 7-3 f amework set by the Supreme Court, but whether they i
4 transgress our rules is a different question.
5 HB. ROSENTHAL:
I don't know obviously the context 6 in which those statements were made.
I am not familiar with 7 those prehearing conference orders.
But as you read those 8 statements it occurred to me that at least two or three of 9 them are controversial in terms of the existing rule as it 10 has been construed.
11 Now, my problem, as I set forth before, was in the 12 context of my belief that the Commission was going about 13 this exercise of considering raising the threshold against a 14 background of an existing Appeal Board construction of the 15 con tentions requirement and more particularly the basis for 16 that requirement.
17 I thought there was a general view that several of 18 these options, if not all of them, would have the effect of 19 altering the existing basis requirement as construed by the 20 A ppeal Board.
Now, Licensing Boards may have gone all over 21 the lot on how they applied that.
22 Now, if my premise is correct that what we are 23 talking about here is in actuality, whichever option ma y be 24 adopted, some alteration in the existing basis rule as s
25 construed, I just believe for the reasons that I stated ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
i 4
23 1 earlier that this substantive change in the rule ought not 2 to be done on a pilot basis.
3 MR. COTTER:
I think I know which case that came g
1 4 out of and the author of the order.
Knowing the author I am 5 pretty confident that ---
6 COMMISSIONER AHEARNE:
It is like a detective 7 story, right?
8 (Laughter.)
9 MR. COTTER:
Yes.
I am pretty confident that the 10 basis for the author's criteria in the order are prior cases 11 f rom either the Appeal Board or the Licensing Board.
COMMISSIONERGILINSKks Let me just ask as a 12 13 matter of information.
Do you discuss decisions of the I
14 Boards with the Boards at the time cases are in progress?
15 MR. COTTER:
No rm ally no.
My involvement in the 16 decision-making progress only comes when they come to me and 17 ask me to peer review it and that is periadic.
There is no 18 s et plan.
19 COMMISSIONER GILINSK They take the initiative?
20 MR. COTTER:
Yes.
21 COMMISSIONER AHEARNE:
I know the answers but you 22 opened this subject.
You can't ask them to come to have a 23 peer review of their draf t orders?
24 MR. COTTER:
No.
25 COMMISSIONER AHEARNE:
Why not?
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
24 1
MR. COTTER:
Because they are to be independent.
2 COMMISSIONER AHEARNE4 How about quality control 3 of the peer review?
4 MR. COTTER:
Pardon me?
5 COMMISSIONER AHEARNE:
How about for purposes of 6 quality control?
Not substantive change but just quality 7 control.
8 MR. COTTER:
I am not sure there is a difference 9 and I am not sure that you can do that before the fact.
10 COMMISSIONER AHEARNE:.Why not?
11 MR. COTTER:
Well, quality control, and by that I 12 presume you mean structure in the way things are written.
13 COMMISSIONER AHEARNE:
And whether it logically 14 holds or whether they have made their case and defended it.
15 HR. COTTER:
Well, as you know, reasonable men may 16 dif fer, and my view of logic might dif fer f rom the author's.
~
17 C0MMISSIONER AHEARNE:
Certainly, but a peer 18 review is not necessarily a mandatory you must change it but 19 it is here are a bunch of weaknesses.
And you are saying 20 that you can 't do that?
21 MR. COTTER:
No, because I am staring to bleed 22 over into an interference with the independence of the 23 decision-mak er.
I encourage it and it is done.
24 COMMISSIONER AHEARNE:
I don't understand why the 25 chairman of the Board can't require it.
ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
25 1
COMMISSIONER BSEFORD:
I think what you would 2 have to do, John, or you' probably could do it would be to 3 have a system whereby e'rery Board decision went through some 4 kind of peer review.
5 COMMISSIONER AHEARNE:
Yes, that is what I meant.
6 COMMISSIONER BRADFORD4 If you started going to 7 individual ---
8 COMMISSIONER AHEARNE:
Oh, no, no, I meant every.
9 Tha t is righ t.
I don't see that couldn't be done.
10 MR. COTTER:
Early in the game I got an informal 11 opinion from the General Counsel's Office saying that I 12 could not do that.
13 COMMISSIONER AHEARNE:
Alan?
(
14 MR. ROSENTHAL:
What is done on the Appeal Board 15 is that all draft Appeal Board opinons are given to other 16 people to look over.
It isn't a matter of my being chairman 17 and they all funnel into me.
From that standpoint I stand 18 on the same footing as everybody else.
I can assure you 19 t ha t opinions which I have drafted myself have gotten the 20 level of examination.
We do this on an informal basis and I 21 think there is probably no Appeal Board opinion tha t comes 22 out that isn't looked at by at least one and usually two 23 individuals who are not on that Board.
I mean, obviously 24 the opinion is reviewed by all members of the Board.
25 I would feel uncomfortable, as I think Tony would, ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
26 1 if it were a matter of me in my capacity as chairman of the 2 panel sitting there and doing this.
But done as it is where 3 I don 't have any special status, and again my opinons get 4 the same scrutiny as do those of anyone else, I find no 5 legal problem with it.
6 I can alco tell you that I think it has resulted
{
7 in an improvement in the produce as I think the author is 8 too close to it and some third person, as it were, looking t
9 at the thing will not only pick up editorial deficiencies 10 but frequently will come and say I don't think you have 11 explained this adequately or alternatively I think you have 12 missed something.
13 Again, in the final analysis the people that are 14 on that Board have the decisional authority f or he can tell 15 the peer reviewer to politely fly a kite, but actually what.
16 happens is we tend to take seriously the constructive 17 criticisms of colleagues.
18 COMMISSIONER AHEARNE:
Now, Len, you felt that 19 that was not allowed?
20 MR. BICKWIT:
I didn't personally advise Tony.
I 21 think there is some room.
As to what came out of the office 22 I am not prepared to disown it at this point.
I just 23 haven 't looked at the question afresh.
24 COMMISSIONER AHEARNE:
That was sort of a feel.
25 Back some time ago when the Commission addressed some ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
27 1 improvements ira the Licensing Board one of the issues was to 2 get a peer review of the decisions.
I was rather distressed eg 3 when I found that for some reason there was concluded that gi 4 that couldn ' t be done.
5 HR. COTT.ER:
Well, I don't want to leave you with 6 a f alse impression.
I don't think the number of decisions, 7 I don't think more than five percent at the most are not 8 subject to peer review.
It is just as a matter of practice 9 within the Board.
The question that you are posing is the 10 difference between voluntary and involuntary.
11 CHAIRMAN PALLADINO:
Well, I thought there was 12 more to it than that, and that was to try and get some s
13 agreement as to what is a good policy to follov vith regard 1?.EL
- 5 14 to contentions, or did I misunderstand that?
15 COMMISSIONER AHEARNE:
That was certainly it.
16 CHAIRMAN PALLADIN0s j
17 18 19 20 21 MR. BICKWIT:
22 CHAIRMAN PALLADINO:
23 MR. BICKWIT:
$5 24 m::'
25 i
ALDERSON REPORTlNG COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (2023 S@4-8@40.
28 1
2 3
CHAIRMAN'PALLADINO:
I was going to follow that up c
J AW 4 with another understanding, and that was that I think that 5 there is a recommendation emerging that says why don't you 6 go ahead and figure out what you want to do and then impose 7 it in place and try it as long as you want.
I think you can 8 also ask for evaluations along the way.
If and when you 9 find that it is not working to the Commission's 10 satisf action, well thea you have the option of changing it.
11 HR. BICKWIT:
Yes.
12 CH AIRHAN P ALLADINO:
That is not quite a pilot 13 test but it reminds us that we always have a chance to
$$h
' TW 14 change it.
15 COEMISSIONER AHEARNE:
It permits them to 16 re-evaluate it.
4 17 MR. BICKWIT:
Tha t makes it easie r, but I just 4
18 vant to make clear that my advice is that there would be no 19 legal or policy problem with actually terminating the 20 contention rule that a ---
21 CHAIRHAN PALLADINO:
The difference being that in 22 a pilot test you would say I am going to evaluate it and 23 then make a decision at this time.
The proposal as I heard 24 it the other way that seems more workable is tha t we are
. h 25 going to evaluate it and then we vi11 decide whether we vant ALDERSON REPORTING COMPANY,INC, 400 VIRGINtA AVE.,'s.W., WASHINGTON, D.C. 20024 (202) 554 2345
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29
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1 to address the question of stopping it or not. A r
2 The other thing I heard, and I guess I believe, 3 but I am open to further discussion, %s that there seems to e
4 be a need for guidance on contentions', the basis being that 5 the Boards themselves feel a need and th'erefore they go 6 ahead and set up their own criteria on a case-by-case basis.
7 So I would suggest on that basis that we ought to 8 try to give some guidance to the Board and we ought to try 9 to focus on a package that we are willing to go with.
If we 10 focus on a package, we could then ask General Counsel to 11 revise, what is it, the rule f or our consideration.
?
12 I don't know if there are any particular comments 13 on any of the ways we might approach it.
14 COMMI SIONER AHEARNE:
I would like to ask you a 15 couple of questions, if I could, on your proposal.
16 Do you see that Option 2 as described, the "no 17 conceivable factual support" as being much of-s constraint?
18 CHAIBMAN PALLADINO Well,.I ga ther there are
/'
19 times when it can be a constraint.
I thought Option 2 also 20 ha d the materiality point in it.
21 MR. BICKWIT That is true, as proposed by the 22 Licensing Boa rd.
23 COMMISSIONER AHEARNE:
That wa's my raxt question.
24 Were you going to add a materiality f eature, ac ca use I don't
,n 25 believe the original op+. ion s
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CHAIRMAN PALLADIN04 I meant the materiality 2 featube to be included in there.
3 COMMISSIONER AHEARNE In Option 1 do you embed 4 the concept of the sanctions if all relevant information
(<. i, 5 isn 't identified ?
6 CHAIRMAN PALLADINO:
I don't recall what I said 7 about sanctions.
I think that there has to be some i
8 prJvisions for sanctions, although it is going to be 9 difficult to enforce.
I have forgotten what I said in 10 Option 1 with regard to sanctions.
1 p
11 MR. BICKWIT It said that if it was shown that b
12' f acts had been, withheld then the Board was authorized to 13 a pply sanctions..
(
CHAIRMAN PALLADIN0s But what sanctions?
14 r
15 MR. BICKWIT:
It didr 't specif y which sanctions.
16 The sanctions that are around vary from warnings to throwing 17 Out the litigant.
In between is throwing out the contention 18 and throwing out the facts.
i 19.
CHAIRMAN PALLADINO:
I intended to include 20 sanctions but I'was.not going to try to identify what they
4 21 a re.
I would leave that up to the Board and the 22 circumstancer because I don 't think we can anticipate all of i
23 the circumstances that the chairman of the Board would face.
24 COMMISSIONER AHEARNE:
Then, finally, where do you 5
b5 come out in Option 4(a) of allowing or disallowing the y,
7 11 l
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ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
31 1 technical membecs to use their judgment in reaching a 2 conclusion regarding contentions?
3 CHAIRMAN PALLADINO I was silent on that point.
g~
t 4 I don't think 4(a) speaks to that point.
5 COMMISSIONER AHEARNE I an asking if you had 6 proposed being silent on that?
7 CHAIRMAN PALLADIN0s Yes.
8 COMMISSIONER AHEARNE:
But then silent on it then 9 means that they are not allowed to use that ---
10 COMMISSIONGR BRADFORD:
Except that Option 11 smuggles it in, doesn't it?
12 CH AIRM Ad PALLADINO:
What is that?
13 COMMISSIONER BRADFORD:
Doesn't Option 2 smuggle 14 tha t in in any case?
15 CHAIRMAN PALLADINO:
Not quite.
16 COMMISSIONER AHEARNE:
Option 2 I think is 17 described as "no conceivable."
So I would guess that would 18 sean it must be inconceivable to everyone.
19 COMMISSIONER BRADFORD:
OGC's description of 20 Option 2 said that it permitted at least some use of the 21 Board's judgment.
22 CHAIRMAN PALLADIN04 My contention is that I think 23 the Board has to always use its judgment.
I don't see how 24 it can proceed without using judgment at almost every point, 25 and I think that judgment is based on the individual's ALDERSoN REPORTING COMPANY. INC.
400 VIRGINIA AVE., S.W WASHINGTON. D.C. 20024 G02) 554 2345
32 1 background.
2 Now, the reason I was silent on it is I didn't 3 vant to make such a big issue as to whether or not ther 4 should use judgment.
I just believe that they should use it 5 all the time and they do.
6 (Laughter.)
7 CHAIREAN PALLADINO:
I don 't know.
Maybe I am 8 naive on that point.
9 MR. PARLER Personally I don't understand how 10 they can make a decision on the admission of contentions 11 without using judgment.
I gather the troublesome point is 12 that they shouldn't use judgment to the extent that not only 13 do they decide on the admissiot. of the contention but they k
14 proceed to decide the merits.
Well then they should use 15 judgment there but later on after the evidentiary record is to made ---
17 COMMISSIONER BRADFORD:
That is the point, isn't 18 i t.
19 MR. PARLER:
That is the important point.
20 MR. ROSENTHAL4 When I made the plea a few minutes 21 ago for a statement of considerations supporting whatever 22 amendments that you alght put forth that would clearly 23 evince the Commission's intent in the matter I had in mind 24 precisely this.
I think it has to be made clear to the 25 members of both the Appeal and Licensing Boards the extent ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C, 20024 (202) 554 2345
4 33 1 to which they can evoke their own judgment and beyond that.
2 The question isn't really a matter of judgmen t so 3 much as it is a matter of the extent to which they can rely 4 upon f acts which are in their head but not on the record and 5 f acts which might well be controversial.
That is where the 6 rub comes.
It is not a matter of judgment but it is a 7 matter of relying on knowledge which is a quite different 8 breed of cat.
9 MR. PARLER:
Of course, if they are relying on the 10 f acts in their head which might well be controversial and 1' might well be material to the findings that have to be made, 12 they should not deny the admission of the contention.
13 MR. ROSENTHAL4 That is right.
What they think is
(
14 non-controversia
- might be controversial to someone else.
15 Tha t is the problem.
16 1R. PARLERs That is why you have to be careful in 17 this area.
18 (Laughter.,5 19 COMMISSIONER AHEARNE:
I would certainly agree 20 with Alan, and I would like to see the fleshed out option.
21 I havo no problem with your proposal.
And I would like to 22 see some description of tl ',s. statement of considerations 23 tha t would go in f ront of it before I would decide.
24 CHAIRMAN PALLADINO:
My feeling is trying to 25 define anything on judgment or even a knowledge basis that ALDERSON REPCRTING COMPANY,INC, 400 VIRGtNIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554 2345
34 1 an individual uses in reaching that judgment, I feel that 2 trying to define is going to be, and I guess I will put it 3 in my own terms, almost ar. impossible task.
g.
4 COMMISSIONER AHEARNE:
Well, I am afraid that at 5 the moment it is very unclear.
I think the legal members 6 of the Board are probably pretty clear on the approach they 7 can take.
At least from my discussions with several of the 8 technical members of the Licensing Board, they are not clear 9 at this stage.
They are patticularly not clear, depending 10 on some of these options that are being discussed.
11 COMMISSIONER BRADFORD:
Which is Tony's point that 12 is you introduce f urther uncertainty you may lose more than 13 ycu gain.
14 COMMISSIONER AHEARNE4 Unless you speak clearly to 15 i t.
16 (Laughter.)
i 17 MR. BICKWIT:
Don't confuse uncertainty.
1 18 (Laughter.)
I 19 COMMISSIONER AHEARNE:
If you speak clearly to it 20 you may not in troduce uncertain ty.
I think one of Tony's 21 points is that if you change the rules, even if there is 22 little uncertainty in that rule change, there uill be a 23 number of people who are going argue that rule change, and i
24 until it can get through the entire legal process that may j
25 end up slowing down.
That was your point, wasn't it?
i i
l ALDERSON REPORTING COMPANY. INC.
400 VIRGINtA A'1L. S.W WASHlNGTCN, D.C. 20024 (202) 554 2345
35 1
HR. COTTER:
Yes.
2 CHAIRMAN PALLADINO Do you have some idea on how 3 one might approach this?
4 MR. COTTER:
Commissioner Bradford's point is also 5 valid in that if you set standards and you give guidance and 6 you spell it all out, it still has to be applied.
7 COMMISSIONER AHEARNE:
Of course.
8 MR. COTTER:
And ther is still going to be a 9 period of time when the Board members who actually have to,
to make these decisions on specific contentions and specific 11 situations are going to have to make those kinds of 12 judgments that the Chairman refers to.
13 COMMISSIONER BRADFORD:
If you look at it just
(
14 from our own perspective on cases that actually make their 15 way all the way to us, I think Joe is clearly right, leaving to aside the point about whether it is at the contention stage 17 or the end of the hearing, which is a problem we don 't have,
18 obviously there are ways in which judgments come into play 19 and they get channelled hopefully within the legally 20 acceptable manner.
But there is no way in which we as 21 judges can completely screen out everything that we know 22 about nuclear regulation.
We do bring it to bear on the 23 f acts as they appear in the record and we do use judgment 24 there and tha t is what I am sure goes on at all levels.
25 COMMISSIONER AHEARNE I certainly wouldn't say ALDERSoN REPORTING COMPANY,iNC, 400 VIRGINIA AVE, S W. WASHtNGTON. 3.C. 20024 (202) 554-2345
36 1 tha t the decision-making I have seen on the Commission 2 represents to me what I had normally thought making a 3 decision on the record had in mind.
(
4 COMMISSIONER BRADFORD Well, in those cases in 5 which there is a record I would hope that it did.
6 COMMISSIONER AHEARNE No, it really doesn't.
7 MR. BICKWIT I am glad we closed this meeting.
8 (Laughter.)
9 COMMISSIONER BRADFORD4 I won't ask you for cases.
10 (Laughter.)
11 CHAIRMAN PALLADINO John, are you proposing that 12 we try to spell out the conditions?
13 COMMISSIONER AHEARNE:
Not so much the conditions 14 as I think one' has to at least address whether or not this 15 relaxes or constrains the technical member's ability to to apply their technical knowledge to addressing the 17 contentions especially.
18 CHAIRMAN PALLADINO:
You are saying we should not 19 be silent on that?
20 COMMISSIONER AHEARNE:
I don't think we should, 21 b u t that is obviously because I would like to encourage the 22 technical sembers to use their technical knowledge in 23 add ressing the contentions.
24 CHAIRMAN FALLADINO:
I agree that they should use 25 their technical knowledge, but not all knowledge is equally l
ALDERSoN REPCAUNG COMPANY,INC, 400 VIRGINIA AVE. S.W., WASH!NGToN. O C. 20024 (202) 554 2345
37 4
1 all understood by all people.
I was trying to think of an 2 example where an engineer or a scientist would know that 3 solid metals not only melt but they can vaporize and many 4 lay people may not know that they can vaporize.
So he makes 5 some judgment based on that knowledge..
i.
6 Then let's assume the intervenor becomes aware 1
7 that they vaporize and then there is the question but at 8 what temperature.
And now the temperature may be a very 9 significant point in that judgment.
10 So I find it hard to tell them you can't use the 11 knowledge that it vaporizes but he may not have used all the 12 knowledge that he has in that judgment and may not have 13 realized that whatever that temperature vs.s it was below the 14 boiling point.
So I expect them to use their knowledge.
15 COMMISSIONER AHEARNE:
I had expected them to use 16 their knowledge until I started reading a lot of the 17 contentions that were accepted.
I 18 MR. COTTERa Did you read the records with them?
19 COMMISSIONER AHEARNE:
I read some of the 20 prehearing conference records but not all of them.
That is 1
21 t rue.
COMMISSIONERGILINSKfaCan I ask, what is the.
22
~ 23 problem that this is a solution to?
Is it the problem of 24 discovery against the staff if too many frivolous conditions
~
25 are introduced or is it ---
COMMISSIO5ER AHEARNEa No.
l ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AW, S.W., WASHINGTON, D.C. 20024 (202) 554-2345
38 1
COMMISSIONER GILINSK :
I would like to have 2 Bill's opinion actually.
3 COMMISSIONER AHEARNE:
Wait.
Give me a chance to 4 answer because I have been pushing this very strongly.
5 COMMISSIONER GILINSK :
Can I complete my question?
8 COMMISSIONER AHEARNE:
Yes.
7 COMMISSIONER GILINSK :
Then I will give you a 8 chance to answer and I will give others a chance to answer, 9 too.
10
--- or is it the matter of the ---
11 CHAIRMAN PALLADINO:
This is like the quiz game.
COMMISSIONERGILINSKfa That is right, you didn't 12 13 press the button f ast enough.
('
14 (Laughter.)
15 COMMISSIONER GILINSK :
--- or is it the matter of 16 f rivolous issues being taken up in the hearing.
17 MR. P ARLER :
Well, I don't whether it 17 either 18 one or the other or just a general desire to have a better 19 understand of the basis requirements so that there is a 20 better determination of wha t the issue is and what the 21 problem is at the outset.
22 A couple of meetings I guess Forrest pointed out 23 on at least one occasion that even stipulated contentions 24 lef t some doubt as to what the precise focus and problem 25 was.
So I would think that the objective w'as to try to ALDERSON REPoR1idG COMPANY,INC.
400 VIRGINIA AVE, S.W., WASHINGTON. D.C. 20024 (202) 554 2345
39 1 improve that area.
2 Now, if that is improved a consequence thereof 3 should be that the presiding Boards should have less of a
(
4 problem during their prehearing process to identify these 5 issues and the issues will be better focused for discovery.
6 When one reaches the summary disposition point the issues 7 that are the subject of such a motion would be clearer and 8 better defined.
9 Those are the kinds of things, at least as I to understand it, that are being addressed by this exercise 11 that we have been considering.
COMMISSIONERGILINSKfsWe will get to you, John.
12 13 What drives your concern?
('
14 HR. PARLERr What drives my concern?
15 COMMISSIONER GILINSK Ye7.
Is that the staff 16 takes up a lot of time dealing with discovery requests and 17 interrogatories which we have heard a lot about here, or is 18 i t your view that a significant amount of hearing time is 19 taken up hearing insubstantial issues that really oughtn't 20 to be taken up at a heating?
21 MR. PARLER:
Well, from the standpcint of the 22 of fic I guess certainly the resource consideration would be 23 a f actor and a very important factor.
Another considera tion 24 is, at least as far as I personally am concerned, is that 25 whenever one reaches the point that the evidentiary hearing ALDER $CN REPoRTIAG COMPANY,INC, 400 VIRGINIA AVE. S.W., WASHINGTON. D.C. 20024 (202) 554-2345
6 40 1 is supposed to commence and does commence, especially ' n 2 view of the f act that the intervenors do not have the burcen 3 necessarily of going forward and presenting a direct case, 4 then it seems kind of strange or puzzling to me to use that 5 setting, an evidentiary setting, to adjudicate issues and to 6 continue to decide really what the issues are and what the 7 problems are.
That doesn't make a heck of a lot of sense to 8 se personally, but from the standpoint of the office, and 9 Guy Cunningham might have something else to add.
10 COMMISSIONER GIIINS 4
But are insubstantial and 11 frivolous issues or unimportant issues taking up a great 12 deal of hearing time or are the hearings devoted to issues 13 that would surviva any reasonable test?
t
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14 HR. CUNNINGHAMs I think really the concern is 15 that the hearing process now is not optimally efficient.
13 There is a great deal of resource expenditure not only by 17 the etsf f but by applicant and indeed by intervenors in 18 gettino issues to the posture where they are going to be 19 disposed of by summary disposition anyway.
20 The concern is that if the issues really are not c substantial or are not going to involve actual contested 22 issues to be adjudicated that that ought to be identified 23 early and get them out of the proceeding.
24 MR. COTTER 4 But don't you think a lot of that is 25 caused simply by having moved the beginning of the hearing ALDERSoN REPORTING COMPANY,INC.
400 VIRGINIA AVE, S.W., WASHING?oA. D.C. 20024(202) 554 2345
41 1 process so much furthe r hack up the line?
In other words, a 2 lot of the principle Locuments aren't out but the process 3 starts.
i 4
MR. PARLER:
But the application is on file and it 5 has been on file f or sore time bef ore the hearing starts.
6 The contentions don't have to be filed until some 60 or 90 7 days af ter the application is docketed.
So it isn't all one 8 way.
9 CHAIRMAN PALLADINO:
Before we go on I want to 10 come back.
We promised Commissioner Ahearne a chance to 11 comment.
I do think it is a Commission concern as well as 12 eve rybod y else 's conce rn.
13 COMMISSIONER AHEARNE4 I think as Vic well knows,
(
14 this wasn't an issue that came from the staff.
When Vic-15 asked what is the problem that this is a solution to, he can 16 ask Bill what is it in his view, but this issue arose when I 17 sta rted the issue and I made some proposals so=s time ago, 18 many months ago, about trying to get it addressed with the 19 con tentions issue.
20 To the extent that there is a string of thread 21 that leads from where the issue came from to thesa 22 solutions, and that was trying to address making the 23 hearings focus on substantive, significant issues.
24 One of the driving f acts of that was, as best as I 25 could tell, a growing sense, and this was a sense not just l
ALDERSoN REPORTING COMPANY,INC.
400 VtRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) $$4-2345
)
o 42 1 in the agency but outside of the agency, and not just on the part of any one group of parties.
In fact, the original 3 comments came primarily from the intervenor side, but our 4 process was becoming more of a charade, an illegal charade, 5 a formal kabuki dance in which there was a lot of motion and 6 a lot of activity but it was not focused upon really 7 significant issues.
8 As a result there was the appearance, if not the 9 actual f act, that the hearings were really just more of a 10 pro forma f ormality.
Y 11 COMMISSIONER GILINSK.:s Well, what we have is the 12 anecdotal to comments that people, most of them have no 13 experience with hea rings.
Now it appears to me that if we I
14 really want to address this and, you know, there may well be 15 a serious problem and I am not suggesting that there isn't, 16 then we ought to take a particular case and take a look at 17 it and see what issues made sense and what issues didn't 18 make sense and what should have been in there and what 19 sho' tid not have been in there but we have never done that.
20 COMMISSIONER AHEABNE:
We have seen issues come 21 u p.
There obviously were split opinions as to whether ---
COMMISSIONERGILINSKf:
Which issues?
Other than 22 23 Allens Creek what have you got to bring up, and that one was 24 thrown out?
We even asked what would get thrown out if we 25 introduced this test of, you know, no conceivable factual ALDERSON REPoRENG COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554 2345
43 1-support, and it turns out that nobody could think of any 2 issue that would ge,t kicked out by that sort of a test.
3 CHAIRMAN PALLADIN0s Let me try a proposal.
I 4 would propose that we ask the OGC to prepare a proposed rule 5 that would be based on Options 1, 2 and 4(a) with 2 6 including the materiality item and include under 4(a) two 7 options, one where you are silent on whether there is 8 technical knowledge to be used in drawing judgments, and if 9 you have something you can write on how to use a technical' 10 background in making a judgment, perhaps you could propose 11 something that would nart of that option.
12 Then bring it back and we would see whether we 13 like it or not and which option on judgment we would want.
(
14 Then we might, if you want, go back and say, well now, 41th 15 this definitive approach let's look at two old cases or 18 three or one or wha tever we can find and see what would have 17 been dif ferent had we used it in the old cases.
18 Now, this is a little more specific than I think 19 ve did bef ore with ELD looking at it and maybe you want it 20 in depth.
That is why I hestitate to go to too many cases 21 because you don 't get it in depth.
But I would leave that 22 open until we see whether or not we would like what is 23 pro posed.
24 COMMISSIONER GILINSK :
I think that is generally 25 a good idea.
The difficulty in applying a specific ALDERSON REPORTING COMPANY. INC.
400 VIRGINIA AVE S.W WASHINGTON. D.C. 20024 (202) 554-2345
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44 1 criterion like in, say, 4(a) to old cases is that you don't 2 know what the intervenor would have done if he had that plan.
3 I would simply suggest taking a look at the 4 contentions as they are and just applying common sense and 5 saying do we as a body' think those are reasonable 6 contentions or do we think they just don't uako sense.
7 CMAIRMAN PALLADINO:
What do you mean?
I didn't 8 f ollow you.
You mean go back to an old case?
9 COMMISSIONER GILINSK a Yes.
I mean do what you 10 said but I don't know that you can actually apply the 11 crit.eria.
12 COMMISSIONER AHEARNE:
You couldn't because the 13 intervenor might Lave been able to come up with more had
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14 those criteria beJ T there.
15 CHAIRMAN PALLADINO:
Well, that is what led us to 16 looking prospectively.
'. 7 COMMISSIONER GILINSK I think we have to use, 18 you know, what you suggested before, which is judgment and 19 look at these things using what is in your head and the 20 f a c t s ---
21 COMMISSIONER BRADFORD:
There is no on-the-record 22 requirement here so you can do anything you want.
23 COMMISSIONER GILINSK a Yes.
Just say, you 24 k no w 25 CHAIRMAN PALLADINO:
Well,.let me limit my 1
l ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE. S.W, WASHINGTON. D.C. 20024 (202) 554 2345
45 1 proposal to the first one and that is we ask OGC to prepare 2 something that
, can chew on that would include 1,
2 and 3 4(a), with 2 include the sateriality question and 4(a) 4 having an option that would remain silent on using technical 5 knowledge in f orming judgments and one that would try to 6 add ress it.
7 COMMISSIONER GILINS I dr think the other part 8 of your suggestion is a useful one to ha va them present to 9 us the contentions.
10 CHAIRMAN PALLADINO:
Which contentions?
11 COMMISSIONER GILINSK s In some old cases, in one 12 or mora esses, f or us to take a look at and to see if these 13 are content.i.ons that we would like to see thrown out or if
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14 ve think they ought to remain.
15 CHAIRMAN PALLADINO:
I don'c know how we aro 16 testing this.
17 COMMISSIONER GILINSK :
Well, you wouldn't be 18 specifically testing that.
19 COMMISSIONER AHEARNE:
You are trying to test 20 whether or not there is a problem.
Yes, I would agree with 21 t h a t.
22 MR. COTTER:
I wo u.'.d like to reiterate my ongoing 23 f rustration with some of these actions in that people say, 24 well, th ere seems to be a problem here and we should do 25 something about it.
And I don't think in the last eight ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA ANE, S.W., WASHeNGTON, O C. 20024 (202) 554-2345
o 46 1 months of coming down here and sitting down and listening 2 that I have aver seen a data base and it frustrates me.
I 3 do not know and, frankly, Commissioner Ahearne, I don't 4 think you have the f aintest idea of whether or not there 5 really is a problem of letting it. too trivial or stupid 6 contentions because the subject has never been analyzed.
7 COMMISSIONER AHEARNEs It hasn't been analyzed.
8 That is absolutely correct, Tony.
9 MR. COTIERs And it runs all the way through all 10 of thern things and don't know whether we are going to 11 accomplish anything or not.
12 COMMISSIONER AHEARNE4 That is right, Tony.
But 13 t!. era are two reasons for that.
(
14 First, it is true there is no data base, but there 15 is no data base in the agency on it.
But there are a number 16 o f people who have' participated in the hearings and whenever 17 over four years when I have talked to participants in our 18 hearing process I would say half of the time that issr.e 19 comes up.
Now, true, it is not data base but just 20 anacdotal; absolutely.
But gradually when enough people 21 raise the same concern that, at least in my mind, tends to 22 give credence to the f act that there is a prob _em.
23 MR. COTTER:
I am ready to go into the insurance 24 business.
25 (Laughter.)
ALCERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE S.W, WASHINGTON. D.C. 20024 (202) 554-2345
47 i
1 "0MMISSIONER AHEARNE Wait a minute.
Then a 2 couple of times I have sat down with a number of the 3 primarily technical members of the Licensing Board, and I 4 quess by now this ends up being probably 15 members at 5 various times, and asking that question.
They do believe 6 there is confusion and in many cases they have believed that 7 there were issues let in that they didn't think technically, 8 in technical judgment, should have been let in and that the y 9 didn' t lead to anything significant.
So that is part of it.
10 Now, the other part whether it will make any 11 ef f ect, you are absolutely right, that is not at all clear 12 because I think the way an effect is actually made is if all 13 of the Board members can prove something clearly and then
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14 f ollow it.
15 I have not much confidence that this is an issue 16 that we are going to be able to speak sufficiently clearly 17 on to be able to do that.
18 CHAIRMAN PALLADINO:
I lean quite a bit on the 19 f ac t that at least some Boards have found it necessary to 20 come up with their criteria.
That says to me that they are 21 looking for guidanco and lacking any guidance they generate 22 their own rules.
23 MR. COTT ER :
But uren 't those instances responses d
24 to the Commission 's concern tha t the hearings be tightened 25 up and managemed?
ALDERSON REPORTING COMPANY. INC.
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48 1
CHAIRMAN PALLADINO:
Perhaps, I don't know.
2 MR. COTTER:
I reiterate it seems to me that the 3 place that you start if you think you have got a problem is 4 to do a more extensive analysis.
I guess the thing that set 5 se off is you say, well, let's take one or two cases and 6look at them.
I don't want to go back to the forbidden 7 metaphore which caused so much trouble the time before, but 8 it seems to me that is exactly what we are doing.
9 COMMISSIONER GILINSK What was that?
10 MR. COTTER:
The blind man analyzing the elephant.
11 (Laughter.)
12 COMMISSIONER GILINSKI:
Well, I just suggested 13 that as a substitute f or nothing.
f 14 CHAIRMAN PALLADINO:
Well, we will have difficulty 15 i'n piloting testing it on plants in the f uture, unless we 16 vant to extend it quite a bit.
I think Cornissioner 17 Gilinsky was doing the same thing that I was doing, well, 18 let's go back and see if we can find anything in the 19 background and I think there are limitations on that, too.
20 MR. COTTER Sure, which one are you going to pick.
21 CHAIRMAN PALLADINO:
The thing is to say, oh, we 22 don ' t need a data base and let's just make rules.
COMMISSIONERGILINSKN Well, that would be okay 23 24 if the people around this table had experience with the 25 proceedings and very f ew.of them do,- a t least no one on this ALDERSoN REPoADNG COMPANY,INC, 400 VIRGINIA AVE, S W WASHINGTON. 0 C. 20024 (202) 554 2345
o 49 1 side, and on the other side in actually trying cases or in 2 deciding ---
3 CHAIRMAN PALLADINO:
Maybe we ought to ask our g.
4 hearing boards what they need in the way of guidance.
5 MR. BICKWITs If you do make a request I think it 6 is important that you distinguish that request from what was 7 already supplied to you in an ELD memo of April 14th that I 8 mentioned at the last meeting in which the Executive Legal 9 Director looked at ten cases and applied a new standard to 10 those ten cases and came to conclusions as to whether the 11 new standard would throw out some of the contentions that 12 were admitted in those cases.
13 So I think the Commission is obligated to look at f
14 tha t paper and decide where tha t paper is deficient in the 15 development of the data base.
16 COMMISSIONER BRADFORD Well, it is deficient, if 17 nothing else, in that it comes from the perspective of only 18 one party to the hearing.
I think with all due respect to 19 E LD, they do represent the staff which is a full-fledged 20 participant.
21 While I have no difficulty with your proposal, 22 Joe, one thing I am going to want to do before we go beyond 23 the formulation of proposals is to suggest that we have some 24 group of people who really do participate in the hearings to 25 sit on that side of the table and discuss it with us.
I ALDERSoN REPCRTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WA1HINGToN. 0.C. 20024 (202) 554 2345
50 1 have in mind somebody like Jerry Charnoff, on the one hand, 2 and Tony Roiseman, on the other, just to go through the 3 practicalities of the proposal f rom the point of view of 4 people who really have tried a number of cases and who don't 5 necessarily share the staff 's perspective on what the 6 results would be.
7 COMMISSIONER AHEARNE:
That would be good.
8 CHAIRMAN PALLADINO:
Are either of these people on 9 the hearing Boards?
10 COMMISSIONER BRADFORDa No.
Charnoff represents 11 applicants by and large and Roiseman has historically 12 represen ted intervenors.
13 MR. ROSENTHAL:
Well, Roiseman is now at Justice.
14 CHAIRMAN PALLADIN04 A corollary might be that we 15 have proposed a change to the rule and send it out for 16 comments.
17 COMMISSIONER BRADFORD:
I don't think it gives us 18 quite the same opportunity to ask questions.
19 CHAIRMAN PALLADINO:
All right.
Well, let's see 20 where we stand.
21 I still would say let's ask General Counsel to 22 w ri te up a proposed rule along the lines we discussed.
In 23 the interim you might write up your proposal to have a 24 meeting with people that can provide input on this.
Would 25 you normally send this out for comments?
ALDERSoN REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W WASHINGTON, D C. 20024 (202) 554 2345
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MR. BICKWTT:
Well, we are at the stage where we 2 have sent out a proposal for comment and we are now 3 evaluating those comments.
You always have the option of 4 going out f or comment again with something that better suits 5 the Commission's views of what should be done at this point.
6 CHAIRMAN PALLADINO:
Why don't we leave that in 7 abeyance but ask each of the Commissioners to think a little 8 bit about whether or not you want to go out for comments 9 af ter we set up a meeting that provides us with some 10 f eedback.
11 COMMISSIONER AHEARNE:
Tony, to what extent do you 12 believe tha t your position, and I don't want to be critical 13 of you, but I as trying to ask whether it would be useful do 14 you think for the Commission to ask the Board members to
- 15. comment on such a proposal, or do you think that there is a 16 suf ficient unanimity in the Board that hearing your view on 17 it is basically getting their views?
16 MR. COTTER:
No, I would be happy to have you have 19 Board members come down and you talk with them.
20 CHAIRMAN PALLADINO:
That is what I was thinking 21 before when I said we ought to ask the Board members to see 22 w h a t their ---
23 COMMISSIONER AHEARNE If they have comments on it.
24 CHAIRMAN PALLADINO:
Yes.
25 MR. COTTER I think you have got to do it in ALDERSoN REPORTING COMPANY. INC, 400 VIRGINIA AVE. S.W WASHINGTON. O C. 20024 (202) 554-2345
52 1 terms of doing here on the record like this.
The reason I 2 say that is the ma jor difficulty that I have and that the g-3 panel has in responding to this whole spectrum of things is 4 they are up to their eyeballs in hearings and work and we 5 don 't have a staf f.
I don't ha ve a regulatory staff to go 6 do this.
It is me.
I just lost my general counsel who was 7 doing ten people's work.
8 COMMISSIONER AHEARNE:
What if we were to ask 9 someone from, say, OGC or OPE to contact your Board members, 10 that is to send the copy of what Len comes up with to each 11 of the Board members and say that someone will be calling 12 j us t to get your views.
13 MR. COTTER:
I think to eliminate any problems or 14 dif ficulties in the translation it might be better to send 15 it and have them see if they can jot something down or 16 attach a page of comments to it or something like that.
17 COMMISSIONER AHEARNE:
I would like that.
18 CHAIRMAN PALLADINO:
Yes, I would like that 19 m yself.
My first thought earlier that I may have been 20 misunderstood on was to have some of the panel members sit 21 where you are sitting and we would have a dialogue with them 22 on whether they see anything wrong or whether this fixes it 23 u p.
24 COMMISSIONER AHEARNE:
I think that is a good 25 idea, but there are a large number of members and many of ALCERSoN REPORTING COMPANY. INC.
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4 o"
53 1 them are --(Inaudible).
2 MR. COTTER :
I think that is an excellent idea.
3 CHAIRMAN PALLADINO:
All right, I will go with g.
4 tha t.
5 Do you want to first see what we come back with?
6 COMMISSIONER AHEARNE:
Yes, and then I would do 7 both.
This is a very contentious ---
8 (Laughter.)
9 CHAIRMAN PALLADINO:
After OGC prepares this 10 proposal we would do two things.
One, we would send it to 11 Board members for comment and we would invite Charnoff and 12 Roiseman and perhaps somebody else.
13 COMMISSIONER BRADFORD:
I am not particular as to 14 the hames.
15 CHAIRMAN PALLADINO:
People such as Roiseman and 16 Cha rnof f to get their feedback.
17 COMMISSIONER BRADFORD:
Yes.
Is that agreeable for now?
19 COMMISSIONER BRADFORD:
Yes.
Can someone clarify 20 one point that is confusing me just logistically.
If in 21 f a c t, as we keep repor ting to the Congress, that we have got 22 about 40 plants coming up for licensing by the end cf
'83, I 23 don 't see how it can be tha t there are only four OL's coming 24 in to be docketed in the next six months unless we have 25 either almost all of them a t least on file with us now or ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON. o.C. 20024 (202) $54 2345
4 54 1 unless in f set a number of those plants have already 2 resigned themselves to schedules that are out beyond
'83.
3 HR. COTTER 4 Maybe you are counting units versus 4 plants.
5 COMMISSIONER BRADFORDs That could be right.
You 6 say you have 20 or so proceedings that are OL proceedings?
7 MR. COTTERS Yes, there are probably 23 or 24 8 units.
9 COMMISSIONER BRADFORD4-But those are OL 10 proceedings and tha t is not spent fuel and that is not 11 antitrust?
12 MR. COTTER:
Oh, yes.
13 COMMISSIONER BRADFORD It is just OL's?
14 MR. COTTER:
Yes.
15 CHAIRMAN PALLADINO:
Are those part of the 34 we 16 expect to do by the end of '837 17 MR. COTTER:
Yes.
18 COMMISSIONER BRADFORD:
I see.
So most of them 19 a re really already in-house and underway.
20 MR. COTTER:
Yes.
21 CHAIRMAN PALLADINO:
Well, can we leave then the 22 contentions issue at that point f or the pre sen t.
23 Now, I gather the rule-making issues included 24 items other than contentions.
I don 't know whether you want 25 to begin on those today and set them for another day.
ALDERSoN REPORTING COMPANY,INC.
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COMMISSIONER AHEARNE:
That is fine with me to go 2 ahead.
I am willing to sit here some more.
3 CHAIRMAN PALLADINO:
We have the question of 4 interrogatories I believe next.
5 COMMISSIONER AHEARNE4 This is an open item.
6 CHAIRMAN PALLADINO:
That is what I was cetting 7 a t.
If we are going to the interrogatories, then I gather 8 we should open the meeting.
f 9
Are you all set to go to the interrogatories?
10 (Commissioners nod affirmatively.)
11 CHAIRMAN PALLADINO:
All right.
Why don't we open 12 the meeting then.
13 (Whereupon, at 11:35 a.m.,
the closed session 14 concluded and the Commission proceeded to reconvene in open 15 session. )
16 17 18 19 20 21 22 23 24 25 ALDERSoN REPORTING COMPANY,INC, 400 VIRG ANIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2347
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NUCIJAR REGULA':' ORT CD!SCSSICM
'!"nis is to cer-if'f that the attached proceedings befers the s
COMMISSION MEETING in the ::!atter O f
- CLOSED MEETING - EXEMPTION 10 - Discussion and Possible Vote on Revised Licensing Procedures Proposed Rule Change to Part 2
- Date of Proceeding:
October 1, 1981 i
Docket flumber:
~
Place of ?receeding:
Uashington, D. C.
More held as herein appears, anc thah. thLs is the original transcrip~
'therect fcr :he file of the Cc==1ssice.,
t elP Mary C.
Simons Official Repceter (!/ ped)
A 7ri Official Reperter (Signature) e i
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I-TRANSMITTAL TO:
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ADVANCED COPY TO:
/7 The Public Document Room g
DATE:
_ November 2, 1981 p
Attached are the PDR copies of a Commission meeting iP transcript /s/ and related meeting document /s/.
h are beine forwarded for entry on the Daily AccessionThey
- P
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List and placement in the Public Document Room.
- 5P N
other distribution is requested or required.
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, xisting DCS identification numbers are listed on the ludividual p
documents wherever possible.
- p 1.
and closed deleted transcript of the following v
three meetings:
Discussion and Possible Vote on Revised a.
Licensing Procedures - Proposed Rule Change to Part 2, September 15, 1981.
(1 copy) b.
j.
Discussion of Revised Licensing Procedures Proposed Rule Change to Part (1 copy) 2, September 23, 1981, Discussion and Possible Vote on Revised c.
Licensing Procedures Proposed Rule Change to Part 2, October 1, 1981 (1 Copy) b e
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