ML20053B011
| ML20053B011 | |
| Person / Time | |
|---|---|
| Issue date: | 04/16/1982 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| Shared Package | |
| ML20050B991 | List: |
| References | |
| REF-10CFR9.7 NUDOCS 8205270600 | |
| Download: ML20053B011 (74) | |
Text
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WT22 REGULATORI COMMISSICN m.
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COMMISSION MEETING e
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BRIEFING ON SECY-82-128 - PROPOSED LEGISLATION r NUCLEAR STANDARDIZATION ACT OF 1982 I
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April 16, 1982 pAggg:
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Washington, D. C.
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UNITED STATES OF AMERICA 2
NUCLEAR BEGULATORY COMMISSION 3
4 BRIEFING ON SECI-82-128 - PROPOSED LEGISLATION 4 5
NUCLEAR STANDARDIZATION ACT OF 1982 6
7 Nuclear Regulatory Commission 8
Room 1130 9
1717 H Street, N.W.
10 Washington, D.C.
11 Friday, April 16, 1982 12 13 The Commission met, pursuant to notice, at 14 10:00 a.m.
15 16 BEFORE:
17 NUNZIO PALLADINO, Chairman of the Commission 18 JOHN AHEARNE, Commissioner 19 THOMAS ROBERTS, Commissioner 20 VICTOR GILINSKY, Commissioner 21 STAFF AND PRESENTERS SEATED AT COMMISSION TABLE:
2' J..TOURTELLOTTE W. PARLER 23 W. COOK L. BICKWIT 24 S. CHILK 25 AUDIENCE SPEAKERS:
P. CRANE ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W. WASN4NGTON. D.C. 20024 (202) 564 2346
DISCLAIMER This is arr unofficia1 transcript of a meeting of the Unitad States Nuclear Regulatory Consission held on April 16, 1982 in the Cocmission's offices at 1717 H Street, N. W.,. Wasnington, D. C.
The meeting was open to public a.ttendance and observation.
This transcript
- has not been reviewed, corrected, or edited,. and it may contain inaccuracies.
The transcript is intended. solely for general infomational purcosas_
As provided by 10 CFR 9.103, it is not part of the formal or infonnal
- r ecord of decision of the matters discussed.
F.xpressions of opinion in this. transcript do not necessarily reflect final detenninations or beliefs.
No pleading or other paper may be filed with the Commission in any proceeding as the result of or addressed to any, statement or argument conta.ined hereirr, except as the Conrnission may authorize.
l
2 1
EEOGIIHIIS3 2
CHAIRMAN PALLADINO:
Good morning, ladies and 3 gentlemen.
We are meeting this eorning at Commissioner 4 Ahearne's request to discuss the proposed Nuclear 5 Standardization Act of 1982.
The draft bill was 8 prepared by the Regulatory Reform Task Force of the 7 Commission.
8 The general question to be discussed today is 9 whether the Commission should approve publication of the 10 draf t bill f or public comment.
The topic that should be 11 included in the discussion is the subject of hearings, 12 because the question was raised by several people.
I 13 have asked Mr. Tourtellotte in his presentation today to 14 highlight the draft legislation provisions on hearings.
15 Following the discussion, I intend to ask th e 16 Commissioners whether or not they are prepared to 17 approve the draf t bill as a proposal for public comment l
18 or whether they wish to have more time to look into 19 it.
20 Unless there are other comments by the 21 Commissioners, I'm going to turn the meeting over to Mr.
22 Tourtellotte.
23 NR. TOURTELLOTTE:
Mr. Chair.7an, I have a 24 brief opening sta tement which I think will help f ocus 25 the attention of the Commission on the important matters ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON. D.C. 20024 (202) 554-2346
3 1 to be presented today.
So I'll take about five minutes, 2 and then if we can get th ro ugh tha t we can open the 3 floor for questions.
4 CHAIRMAN PALLADINO:
You are asking us to 5 rafrain from questioning during those five minutes?
6 NR. TOURTELLOTTE:
Yes, please.
7 (Laughter.)
8 CHAIRMAN PALLADINO:
We got the message.
9 NR. TOURTELLOTTE:
The legislation now before 10 you includes revisions which have been previously 11 suggested by members of the Commission, the Senior 12 Advisory Group, and the Regulatory Ref orm Task Force.
13 Differing views did develop and only one view is 14 reflected in the legislation.
15 The most notable difference of opinion 18 concerns the hearing provisions which are added to 17 Sections 185, 193, and 194 of the proposed bill.
These 18 sections provide independent opportunities for public 19 hearings, f or one-step licensing, early site approval, 20 and standard design approval.
21 Iwo members of the Task Force and one member 22 of the Senior Advisory Group believe that the hearings 23 should be held pursuant to Section 189(a) of the Atomic 24 Energy Act and that Section 189(a) should be 25 specifically referenced in the bill.
Their position ALDERSoN REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2346
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1 appears to be that Section 189(a) should govern the 2 h ea ring process as applied to standardized plants, that 3 providing autonomous hearing provisions for one-step 4 licensing, early site approval, and design approval is 5 likely to create controversy in Congress, and that th at 6 controversy could impede the approval of the legislative 7 proposal.
~
8 Two members of the Task Force and a former 9 Task Force member who made the initial draf ts of the 10 bill favor the legislation as currently drafted.
The 11 basis for their position is that there is a risk that 12 Section 189(a) could be interpreted to require very 13 formal hearings and that autonomous hearing provisions 14 for one-step licensing, early site approval, and 15 standard dasign approval afford the Commission greater 16 flexibility in devising procedures.
17 That flexibility would not preclude the use of 18 procedures as formal as those previously employed under 19 Section 189(a).
On the other hand, it would permit the 20 use of procedures as informal as requiring an entire 21 case to be submitted and decided on the basis of written 22 evidence.
23 Three members of the Senior Advisory Group and.
24 three members of the Task Force do not wish to address 25 the question of 189(a), but f avor the flexibility ALDERSoN REPORTING COMPANY,INC, 400 MRGINIA AVE., S.W. WASHINGTON, o.C. 20024 (202) 554-2346
5 1 afforded by the autonomous hearing approach.
In total, 2 then, nine members of the Senior Advisory Group and the 3 Task Force favor the autonomous approach; three favor
& the 189(a) approach.
5 The difference of opinion over 189(a) versus 6 the autonomous hearing provisions also raises questions 7 about whether the Standardization Act really presents a 8 fresh epproach to licensing and whether controversy can 9 actually be avoided.
If 189(a)~as a -- I'm sorry -- if to the Standardization Act were to make specific reference 11 to Section 189(a) as a statutory basis for the type of 12 hearing that would be held, it would seem to send a 13 signal that the Commission does not have a fresh 14 approach.
15 The general implication would be that the 16 Commission is encouraging standa rdiza tion, but is going 17 to conduct its hearings as formally as the Commission l
18 has always conducted them.
Moreover, this is likely to 19 stir controversy among the members of Congress who view 20 the Commission's past hearing practices unfavorably.
21 In support of this position, it may be noted 22 that the Senate recently passed S.
1080, and although it 23 deals primarily with rulemaking, the Senate clearly 24 favors flexibility in administrative procedures.
- Hence, 25 even if Section 189(a) is injected into the bill as ALDERSoN REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W WASHINGTON, D.C. 20024 (202) 564 2345
6 1 suqqested by those expressing the differing views, 2 controversy will not be avoided.
3 Another note was received from a member of the 4 Senior Advisory Group containing comments on th e bill.
5 None of these comments are substantively significant, 6 and to the extent that it may be appropriate those 7 comments can be factored into the draft.
8 Commissioner Gilinsky has made several 9 comments and the other Commissioners may likewise have 10 positions which they wish to state.
Because the 11 proposal before the Commission is that the package be 12 sent to the Federal Register for comment, I suggest th a t 13 the Federal Register notice reflect the comments of the 14 Commissioners, the Senior Advisory Croup, and the 15 Regulatory Reform Task Force members to broaden the base 16 of public comment that might be received.
17 In making this suggestion, it perhaps should 18 also be mentioned in the Federal Register notice that 1
l 19 the Commission is considering other legislative changes 20 in the nature of changing the hearing process, adding a 21 backfitting rule of general application, and changing 22 the quorum rule.
By so doing, the public will have an 23 opportunity to comment on the Commission's entire l
24 legislative approach and the Commission will be better 25 informed in reaching its determination as to the content l
l ALDERSoN REPORTING COMPANY. INC, 400 VIRGINIA AS S.We WASHINGTON, D.C. 20024 (202) 554 2345
o 7
1 of the legislative package or packages which it wishes 2 to send to Congress.
3 CHAIRMAN Pf;LLADINO Jim, when you -- in that 4 last paragraph you spoke of several topics on which you 5 would seek comments.
Would you envision giving an 6 indication of the scope of thinking on each of those r
7 items?
For example, the quorum rule may not be 8 understood by title--
9 MR. TOURTELLOTTEs Yes.
I 10 CHAIRMAN PALLADINO:
-- and maybe in a sense 11 explaining what is being thought about there would 12 help.
13 MB. TOURTELLOTTE:
Yes.
What I had in mind 14 specifically was describing in general terms the varicus l
15 alternative approaches we migh t take to changing Section
~
18 189(a) of the Atomic Energy Act.
There are two or three 17 approaches, and basically all of the approaches are 18 directed toward giving the Commission greater discretion 19 and greater flexibility in selecting the hearing 20 format.
21 With regard to backfitting, the backfitting 22 legislation would be essentially the same as that 23 proposed in the standardized bill, except it would 24 exclude the words "for standardized plants."
The quorum 25 rule would I think probably have to be described, and to l
l i
1 ALDERSoN REPORTING COMPANY. INC.
l 400 VIRGINIA AVE., S.W., WASHINGTON. O.C. 20024 0202) 554-2345
8 1 some extent there is a provision currently, as you know, 2 that requires that the Commissioners be present to 3 vote.
t 4
There has been a suggestion for some time that 5, if all the Consissioners were to agree that being 6 present to make the vote would be a more efficient way 7 to do business, and that there would be no prejudice to 8 any of the Commissioners in waiving the present rule.
9 That is the kind of a change that we were thinking of.
i 10 CHAIRMAN PALLADINO:
You used the word "if all 11 Commissioners agree"?
12 MR TOURTELLOTTE:
Agreed.to waive the present 13 requirement, yes.
14 CHAIRMAN PALLADINO Okay.
l 15 ER. TOURTELLOTTE:
Those are the basic changes i
l 18 that we had in mind relative to the hearing process, i
17 relative to additional legislation.
There is one other
~
18 change, that is doing away with mandatory CP review, 19 which.has's bearing on the hearing process as well.
20 CHAIRMAN PALLADIN0s When you speak of all 1
21 Commissioners agreeing
+'s esive, that would mean 22 una nimo us. ag reemen !
Is that what you had in mind?
23 MR. TOUlaELLJ:r.3s Yes.
That is the way that 24 has been drafted in the past.
Now there is no reason 25 why if we were going to suggest legislation and you ALDERSoN REPORTING COMPANY,INC, c3 @ AS S.We WASHINGTON. D.C. 20024 (E@ $54-2346
9 1
vished to suggest also as an option that a quorum could 2 agree to waive--
3 COHNISSIONER ROBERTS:
A majority or a 4 quorum?
What did you say about tha t ?
5 HR. TOURTELLOTTE:
I'm sorry, a majority; if a i
6 numerica) aajority would agree to waive it, then it 7 would by ralved.
8 CHAIRHAN PALLADIN0s But as to your thinking 9 now, it would be a unanimous requirement?
10 MR. TOURTELLOTTEs Yes.
That is the wa2 that 11 it has been proposed in the past primarily.
12 CHAIRMAN PALLADIN0s In your document you do 13 not reference 189(a).
It is possible that 189(a) could 14 be changed.
What is the thinking of the group that 15 supports the present approach with regard to including 16 189(a) as a reference and recognizing that it could be 17 changed to accommodate the kind of thinking that you 18 have in mind with regard to flexibility?
19 HR. TOURTELLOTTE Well, basically 189(a) 20 could be changed and could be included as a part -- for 21 that matter, as a part of the overall standardization 22 package.
I think the controversy that has arisen, the 23 differing.iews that have been expressed, clearly 24 demonstrata that there is a question as to what kinds of 25 hearings might we expect to have regarding one-step ALDERSoN REPORTING COMPANY. INC.
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licensing, early site approval, and standardized design 2 approval.
And since there is that controversy in 3 e xi stence, since there are those differing views, then 4 it would probably be appropriate to address changing 5 189(a) and putting it in the standardized package.
6 (At 10:15 a.m.,
Commissioner Gilinsky entered 7 the roca.)
8 MR. TOURTELLOTTE:
Now the kind of changes 9 that we would expect to make would be those that would 10 give the Commission greater discretion in determining 11 hearing formats or at least, if not give them greater 12 discretion, because it 's my view that they have a great 13 deal of discretion already under 189(a), it would at 14 lea.ct clarify that they do have that discretion if there 15 is any question by reason of the interpretation that we 16 nave placed on 189(a) through the years.
17 CHAIRMAN PALLADINO:
I wasn't thinking of 18 changing the 189(a) for.this package.
But suppose it 19 said the hearing process pursuant to 189(a), for 20 example.
What problem would you foresee if we went that 21 way?
22 COMMISSIONER AHEARNE:
You mean if the package 23 used the hearing process of 189(a)?
24 CHAIRMAN PALLADINO:
Yes, of 189(a).
25 MR. TOURTELLOTTE:
I think there are two ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE. S.W., WASHINGTON, D.C. 20024 (202) 554 2348
11 1 problems that you run into.
One is that if it is 2 sub seque ntly determined by the courts that 189(a) 3 requires very formal procedures for hearing purposes, 4 then when you apply th at to the standardized plant 5 approach, then you're not -- yo u don ' t really have a 6 fresh approach.
And it is a very structured approach 7 that is not likely to utilize your resources well.
8 The -- of course, if 189 (a ) is as flexible as 9 I think it is and the Task Force is considering changing 10 part two to make our hearing procedures more flexible, 11 if that comes to pass and if those procedures could be 12 used in connection with standardized plants as well, I 13 do not think there would be much difference.
But there 14 is a risk involved tha t 189(a) may be interpreted, as it 15 has been by different people, to require very strict 16 procedures.
17 COMMISSIONER AHEARNEs Jim, what is your 18 interpretation of what 189(a) requires for the NBC?
19 MR. TOURTELLOTTE:
Well, I think if you read 20 189(a) in conjunction with all of the decisions of the 21 Supreme Court that deal with the right of an agency to 22 determine its own procedures, I think that it allows the 23 flexibility to come up with a set of procedures for an 24 adjudicatory hearing which are considerably different 25 from th ose that we presently have.
ALDERSoN REPORTING COMPANY,INC.
_400 VIRGINIA AVE., S.W., WASH 4NGTON, D.C. 20024 (202) 554-2345
12 1
1 Our current procedures, not entirely but to a 2 great extent, are based upon the Federal Rules of Civil 3 Procedure.
4 COMMISSIONER GILINSKY:
Did you say for an 5 adjudicatory hearing?
6 NR. TOURTELLOTTE:
Yes.
7 COMMISSIONER GILINSXY:
I mean, would it 8 permit any other kind of hearing?
9 MR. TOURTELLOTTE:
Well, there is some room to 10 argue that it does permit another type of a hearing.
I 11 would have to say th at through the years there has been 12 a customary interpretation that 189(a) required an 13 adjudicatory hearing.
14 COMMISSIONER ROBERTSa Question:
'Do you think 15 189(a) requires an adjudicatory hearing?
18 HR. TOURTELLOTTEs I think that the 17 interpretation that we have placed on it for the past 18 20-odd years is wrong.
19 COMMISSIONER AHEARNEs So you're --
20 HR. TOURTELLOTTE:
So if you're asking me on 21 the basis of the way the bill, the legislation was 22 drafted originally and on the basis of the legislative 23 history th a t existed at the time that it was drafted, I 24 don't believe that it requires an adjudicatory hearing.
25 But that view may not hold any water in light of the ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE S.W., WASH 6NGTON. D.C. 20024 8 554 2345
13 1 sub sequent interpretations.
2 COMMISSIONER AHEARNE But given just the way 3 the statutes are written, the Atomic Energy Act, what is 4 required?
We are required to have proceedings under the 5 Administrative Procedures Act?
Is that correct?
6 NR. TOURTELLOTTE4 Yes.
7 CONNISSIONER AHEARNE:
And then 189 says that 8 for all of these categories, which I guess are licensing 9 amendments and so forth, we are required to hold to hearings.
Now what in your view does then just the 11 construction of the statute lead you to?
12 MR. TOURTELLOTTE:
As it currently exists, and 13 I think also not just from a purely legal standpoint but 14 from a policy standpoint, I think that you have to have 15 the opportunity for public hearing in deciding these 16 issues.
17 COMMISSIONER AHEARNE Okay.
Now a "public l
18 hearing" in tha t term is defined as?
19 MR. TOURTELLOTTE:
The "public hearing" is 20 defined pretty much as what is required under the APA.
21 COMMISSIONER AHEARNE:
5EO 22 MR. TOURTELLOTTE:
7.
23 COMMISSIONER AHEARNE And -- 556 and 557?
24 MR. TOURTELLOTTE:
556 and
'7, yes.
25 COMMISSIONER AHEARNE:
Seven does.
And in ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASNINGToN, G.C. 20024 (202) 554 2345
14 1
your view what do those sections require?
2 NR. TOURTELLOTTE:
Well --
3 CONHISSIONER AHEARNE:
In other words, what 4 would meet the requirements of those sections?
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 l
22 l
23 24 25 ALDERSON REPORTING COMPANY,INC,
@ VIRGINtA AS 3.W, WASNNGTON, D.C. 20024 (202) 564-2346
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MR. TOURTELLOTTE:
The -- It is not an easy 2 answer, and it is one that probably thousands and 3 thousands of pages have been written on.
For initial 4 licensing proceedings, the hearing can be as simple as 5 -- and it would still be an adjudicatory hearing -- i t 6 could be as simple as requiring the entire case to be 7 submitted on the basis of written evidence.
8 COMMISSIONER AHEARNE:
No oral at all?
9 MR. TOURTELLOTTE:
No.
The act itself states 10 that evidence any be -
"a party is entitled to present 11 his case or defense by oral or documentary evidence, to 12 submit rebuttal evidence" --
13 COMMISSIONER AHEARNE:
I am sorry.
Did you 14 say " entitled" or " required"?
15 HR. TOURTELLOTTE:
"is entitled to 18 present," but you notice it is stated in the 17 disjunctive, so oral presentation is not necessary to 18 having an adjudicatory hearing.
It could all be done on 19 documentary evidence.
Now as sort of a preview of 20 coming attractions, the scheme that we are devising 21 right now for the hearing process would require 22 initially that the case be submitted on the basis of 23 written evidence.
If a request is made for an oral 24 argument and a need can be shown, and it can be 25 demonstrated that an oral argument is likely to produce ALDERSON REPORTING COMPANY,INC,
_400 VIRGIN 4A AVE., S.W., WASHINGTON, D.C. 20024 Esi) 554-2345
16 1 positive res ults, then the option would be there to have 2 oral argument.
The same goes for cross examination.
3 COMMISSIONER AHEARNE4 Do you see that, 4 though, in your reading of the two sections of the APA?
5 Do you see that as a requirement?
That is, the -- Well, 6 let's take cross examination.
Is that a requirement 7 under those two sections?
8 MR. TOURTELLOTTE No, it is not a 9 requirement.
10 COMMISSIONER GILINSKY:
When you say 11 "adjudicato ry hearing," what do you mean?
12 MR. TOURTELLOTTE:
I mean an adjudicatory 13 hearing is a hearing that's --
14 COMMISSIONER GILINSKYs Where does it take 15 them-- Go ahead.
16 MR. TOURTElm)TTEs
-- that's conducted in 17 conformity with the Section 556 of the APA.
18 COMMISSIONER AREARNE:
And so far those end up 19 requiring it to be submitted, the material to be 20 submitted in writing as far as you can see.
Is that the 21 only requirement?
22 MR. TOURTELLOTTEs Well, i t -- ye s.
23 COMMISSIONER GILINSKY:
Is that a common use 24 of the word in this connection?
25 MR. TOURTELLOTTEs What, " adjudicatory"?
ALDEASON REPORTING COMPANY,INC.
_.. - _.. _. _. - -.- -- -_ _ _-. _ 00 VlRolNIA AVE., S.W. WASHINGTON. D.C. 200I4 (202) 584-2346_ _ _,
4
17 1
COMMISSIONER CILINSKY:
I mean, to mean 2 precisely that?
Or is that the way you are using it?
3 MR. TOURTELLOTTE:
No.
" Adjudicatory" has no 4 precise meaning.
" Adjudicatory" is only -- has a 5 seaning in terms of the forum that you are appearing in, 6 and what it is that you are litigating.
An 7 adjudication, for instance, for a criminal case requires 8 procedures and quaranteed rights that are not required 9 in an administrative adjudication; and differing forums to have differing requirements.
Under the APA in an 11 administrative agency, those requirements are those that 12 are generally outlined -- and I would emphasize 13 " outlined"-- in Section 556.
14 CHAIRHAN PALLADIN0s Are you saying cross 15 examination and oral arguments are not necessarily 16 implied by the words " adjudicatory hearing"?
17 HR. TOURTELLOTTE:
They e.ie not a matter of 18 right necessarily, necessarily a matter of right.
19 COMMISS101ER AHEARNE:
Is it 20 MR. TOURIELLOTTE:
It is -- A gain, when you 21 talk about administrative law generally, if you are l
22 talking about an administrative proceeding that deals l
23 with constitutional rights of people and the center of I
l 24 the controversy, the issues that are to be discussed are
(
l 25 constitutional issues, then you probably have some i
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W. WASNINGToN, D.C. 20024 (20lD 564 2346_ _ _
18 1 rights that do not innure to those who are involved in 2 initial licensing cases that do not involvo 3 constitutional rights, at least on the initial front.
4 COMMISSIONER AHEARNE:
But then, is the only 5 req uirem ent that you see in 556 and 557 the absolute 6 requirement that the material be submitted in writing?
7 NR. TOURTE110TTE:
No, I would not want to be 8 that simplistic about it.
556 speaks for itself.
9 556(d), I think, states in general terms the standards 10 which Congress expects an administrative agency to 11 follow.
And it is -- I do not think the standards can 12 be summarized as simply as --
13 COMMISSIONER AHEARNE:
What does it say?
14 HR. TOURTELLOTTEs Well, for instance, one of 15 the standards is that the proponent of an order has the 16 burden of proofs
" Oral or documentary evidence may be 17 received, but the agency as a matter of policy shall 18 provide for the exclusion of irrelevant, immaterial, or 19 unduly repetitious evidence.
A sanction may not be 20 imposed, or a rule or order issued except on 21 consideration of the whole record or those parts thereof 22 cited by a party and supported by and in accordance with 23 reliable, proba tive, and substantial evidence."
24 Now what I have done, I have read just the 25 first few sentences.
If you think about them for a ALDERSON REPORTING COMPANY,INC, 1
1 400 VIRGINIA AVE. S.W., WASHINGTON. D.C. 20024 (202) 554-2346
e 19 1 moment, there is no direct relationship from one 2 sentence to the next.
The way I view 556(d) is that 3 this is a series of standards that are simply set out by 4 Congress on matters that they expect the administrative 5 agency to follow.
6 COMMISSIONER AHEARNE:
Did that -- Would I 7 correctly interpret what you just said though in that 8 section you read as meaning the decision must be made on 9 the record?
10 MR. TOURTELLOTTEs Yes, ra th e r th a n -- tha t 11 rou should not use extra record evidence.
I can go on, 12 "The agency may, to the extent consistent with the 13 interests of justice and the policy of the underlying statutes ada'inistered by the agency, consider violations 14 15 of 557(d," and this is on ex parte, "of this title is 16 sufficient grounds for a decision adverse to a party who 17 has knowingly committad such violations or who knowingly 18 causes such a violation to occur."
19 COMMISSIONER AHEARNE:
Are you saying tha t th e 20 ex parte separation, some ex parte separation is 21 embedded within that?
22 MR. TOUETELLOTTE:
Yes.
That is another 23 standard.
They are telling you that in devising your 24 hearing process for ex parte, one of the things you can 25 do as a sanction is you can reject -- for instance, you ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE. S.W WASHINGTON. O.C. 20024 (202) 554-2346
20 1 can reject an entire license if someone violates the ex 2 parte rule.
3 COMMISSIONER AHEARNE:
What I was trying to 4 get at though was, I was trying to get a list of what is 5 requirad, because as I understand your view, tha t we 6 operate -- putting aside the 20, 25 years of practice, 7 just looking at the statute, the constraints are going 8 to be those that are followed from the section.
That is 9 the rigid framework in which our hearings must be held.
10 MR. TOURTELLOTTE:
Yes.
11 COHNISSIONER AHEARNE:
And then anything in 12 addition is that we have either put on by our own 13 regulations interpretations, or our practice?
14 NB. TOURTELLOTTE.
Yes.
15 MR. BICKWIT:
Excuse me.
Could I seek one 16 clarification here?
You said that the Section 189(a) of 17 the Atomic Energy Act does not require an adjudicatory 18 hearing.
You said that at one point.
You then defined 19 adjudicatory hearing to mean that which complies with 20 556 and 557.
I interpret what you say to mean that 21 189(a) does not require compliance with 556 and 557.
22 Then, on another occasion, you seemed to say that it 23 did.
And I don't know which of those two views you 24 hold.
25 MR. TOURTELLOTTE:
No.
What I said was, the ALDERSON REPORTING COMPANY,INC, f00 VIRGNA AVE., S.W., WASHINGTON O.C. 20024 (202) 554-2346
21 1 question was asked whether I personally believed that 2 the Act as originally draf ted was intended to require an 3 adjudicatory hearing.
My answer to that is It does 4 not require a hearing on the record.
It does not use 5 the term " hearing on the record."
It did not envision 6 using the term " hearing on the record. "
Therefore, the 7 kind of requirements that are associated with that are 8 not inherent in the Act.
I do 9
ER. BICKWITs Those requirements are the to requirements of 556 and 5577 11 MR. TOURTELLOTTEa Correct.
12 ER. BICKWITs Right.
13 MR. TOURTELLOTTE:
Correct.
But I also 14 indicated that 189(a) has been interpreted as requiring 15 an adjudicatory hearing, and then we are explaining wha t 16 the adjudicatory hearing is.
17 I would also add that even though I believe 18 that the initial Act did not require a hearing on the 19 record, and putting aside f or a moment the
- actually, 20 there are various interpretations of what 189(a) means--
l 21 I do not personally believe that you -- as a matter of 22 policy, we should do anything other than following 556 23 and 557.
24 CONNISSIONER AHEARNE:
For?
25 MR. TOURTELLOTTE:
For hearings on initial 1
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W WASHINGTON, D.C. 20024 (202) 564 2346
22 1 licenses.
I think --
2 MR. BICKWIT:
So your view is that even though 3 it is not required to follow 556 and 557 by the Act, you 4 ts a matter of policy feel that the Commission should 5 follow it?
8 MR. TOURTELLOTTE4 That the Commission should 7 basically follow the standard set out in 556 and 557.
8 MR. BICKWITs All right.
And that is why we 9 are in this discssion.
10 MR. TOURTELLOTTEs Right.
11 COMHISSIONER GILINSKY:
Let me ask you, Len, 12 in what way does the Administrative Procedures Act bind 13 us or constrain us?
14 MR. BICKWIT I believe 189(a) requires the 15 Commission to follow 556 and 557 --
16 COMMISSIONER AHEARNE For?
17 MR. BICKWITs in a reactor licensing case.
18 COMMISSIONER AHEARNE:
But only in reactor 19 licensees?
20 MR. BICKWITs And therefore I believe you are 21 constrained by 556 and 557.
And I think your discussion 22 is appropriate as to what those particular sections Z3 require.
24 COMMISSIONER AHEARNE:
But, Len, the phrase in 25 189(a) that talks about the hea ring, "shall grant a f
l ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2346
)
23 1 hearing," refers to "g ra n ting, suspending, or revoking 2 or amending any license or construction permit or 3 application to transfer control and in any proceeding 4 for the issuance or modifification of rules and 5 regulations dealing with the activities of licensees."
6 MR. BICKWITs Tha t is a sentence --
7 CONNISSIONER AHEARNE:
So that's --
8 HR. BICKWIT:
That is a sentence that was 9 adopted in 1954, and I think the legislative history 10 regarding that sentence is very inconclusive as to what 11 was meant.
12 COMMISSIONER AHEARNE:
But then it is not that 13 sentence on which you rely in answering Yic's question?
14 HR. BICKWITa Tha t is correct.
It is not that 15 sentence.
It is the next three sentences.
And the 18 legislative history associated with the next three 17 sentences appears to me clear that in reactor licensing 18 cases the Commission is req,uired to follow 556 and 557.
19 COMMISSIONER AHEARNE:
So your conclusion --
20 CHAIRMAN PALLADINO Could you read the next 21 three sentences, as long as you have them there?
22 COMMISSIONER AHEARNE:
Okay.
23 HR. BICKWIT:
I think if you read the next one 24 it would do it.
25 COMMISSIONER AHEARNE:
Okay.
The next one ALDERSoN REPORTING COMPANY,INC.
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24 1 ist "The Commission shall hold a hearing after 30 days' 2 notice and publica tion once in the Federal Register on 3 each application under Section 103 or 104 for a 4 construction permit for a f acility and on any 5 application under Section 104 for a construction permit 6 for a testing facility."
7 HR. BICKWITs At least with respect to 8 construction permits, that does it.
With respect to 9 operating licenses, I guess you would have to read the 10 next sentence.
11 COMNISSIONER AHEARNE:
"In cases where such a 12 construction permit has been issued following the 13 holding of such a hearing, the Commission may in the 14 absence of a request therefor by any person whose 15 interests may be affected issue an operating license or 16 an amendment to a construction permit or an amendment to 17 an operating license without a hearing, but upon 30 18 days' notice and publication once in the Federal 19 Register of its intent to do so."
20 MR. BICKWITs The legislative history 21 associated with those sentences seems to me to make 22 clear that Congress intended an on-the-record, formal 23 hearing in accordance with Section 556 and 557.
24 COMMISSIONER AHEARNE:
For?
25 MR. BICKWITa For reactor licenses.
l 1
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COMMISSIONER AHEARNE:
For reactor licenses.
2 MR. BICKWIT:
And amendmen ts thereto.
3 COMMISSIONER AHEARNE:
And amendments to 4 reactor licenses?
5 MR. BICKWIT4 And amendments thereto.
8 COMMISSIONER AHEARNE:
I will ask you your 7 opinion (indicating Mr. Tourtellotte) in a minute, but 8 then -- this is, I realize, an aside -- but therefore 9 materials' licenses just doesn't require that.
10 MR. BICKWIT:
Materials' licenses are governed 11 by the first sentence; I think the legislative history 12 is inconclusive.
13 COMMISSIONER AHEARNE Do you agree with his 14 interpretation that those sections do require 556 and 15 5577 18 MR. TOURTELLOTTEa No.
17 COMMISSIONER AHEARNE:
Fine.
18 COMMISSIONER GILINSKY:
What does it--
19 CHAIRMAN PALLADINO I thought the low was a 20 more precise 21 COMMISSIONER HOBERTS:
Don't forget Charles 22 Dickens and William Shakespeare.
23 (General laughter.)
24 COMMISSIONER GILINSKYa What does apply th e n,
25 if that section doesn 't apply?
I mean, wha t are the l
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1 limits on what tha Commission can do?
i 2
MR. TOURTELLOTTE:
Well, I think it is rather 3 scademic as to what the limits are.
4 COMNISSIONER GILINSKY s Well, a lot of this is 5 acadenLc --
6 MR. TOURTELLOTTE:
-- as a ma tter of --
7 COMMISSIONER GILINSKYa but why don't we 8 pursue this point?
9 5H. TOURTELLOTTE Well, I suppose a hearing 10 would be anything that gives a member of the public an 11 opportunity to express its view, and that could be as --
12 a hearing is conducted, for instance, in rulemakings by 13 simply requesting written commen t and receiving written 14 comment, and that would be a hearing.
15
' COMMISSIONER GILINSKY:
Well, is there some 16 other provision of the Administrative Procedures Act 17 that applies here, or does the Act not apply at all?
18 MR. TOURTELLOTTE:
Well, there is a 19 distinction to be made between requiring a hearing and a 20 hearing on the racord.
The word that is used, the i
21 wording that is used in 189(a) simply says, "shall grant 22 m hearing."
It does not say "a hearing on the record. "
23 COMNISSIONER GILINSKY:
Does the APA deal with 24 informal hea rings?
25 MR. TOURTELLOTTE:
As currently drafted?
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27 1
COMMISSIONER GILINSKYs (Nods in the 2 affirmative.)
3 ME. TOURTELLOTTEs No.
4 COHNISSIONER GILINSKIs So in effect you are 5 saying 6
HR. TOURTELLOTTE:
I mean, I don't know 7 exactly what you mean by that question.
It doesn't deal 8 directly by saying an informal hearing requires this.
9 COMMISSIONER GILINSKYs I am just trying to 10 understand what you think constrains us in what we can 11 do as far as the hearing requirements.
12 MR. TOURTELLOTTE I think what constrains us 13 is the policy.
14 COMMISSIONER GILINSKYs No, Legally.
No, no, 15 no.
16 COMMISSIONER AHEARNE:
25 years of practice.
17 COMMISSIONER GILINSKYs Purely from a legal 18 point of view, to what extent are we constrained by the 19 law?
Are we constrained at all, other than being I
l 20 required to give some opportunity for expression of 21 vie ws ?
22 MR. TOURTELLOTTE I think we are constrained 20 to give some opportunity for the public to comment.
I l
24 would add that I do not agree that that is the approach 25 one should take in initial licensing.
But if you ask ALDERSoN REPORTING COMPANY,INC, CG %2tNIA AS S.W WASHINGTON, D.C. 20024 @ 554 2345 y
28 1
me--
2 CONNISSIONER GILINSKY :
No.
I am just asking 3 purely as a legal matter.
4 HR. TOURTELLOTTE:
Purely as a lagal matter, 5 the only thing we really need to do under the terms of 6 the Act is provide the opportunity for the public to 7 comment.
8 COMMISSIONER AHEARNE:
B ut then given the--
9 COHNISSIONER GILINSKY:
What does the APA say 10 about its applicability?
It must say that is that 11 triggered only 12 CONNISSIONER AHEARNE:
Does the section --
13 CONNISSIONER GILINSKY:
-- if there is a 14 requirement in an agency statute that the APA apply?
15 COMMISSIONER AHEARNE:
Doesn't 181 say the APA 16 applies?
17 HR. BICKWIT 181 says the \\PA applies, yes.
18 The APA by its terms say that 556 and 557 only apply 19 when the statute in question requires the hearings to be 20 on the record.
If the statute does not require the 21 hearings to be on the record, then there is no 22 application of any section of the APA to an adjudicatory 23 matter.
24 COMMISSIONER GILINSKI:
Does the Atomic Energy 25 Act refer to it or not?
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HR. BICKWIT The Atomic Energy Act does not 2 use the words "on the record."
However, the legislative 3 history as I read it makes clear that that is what 4 Congress had in mind.
5 COHNISSIONER GILINSKY What was this comment 6 about Section 181?
7 COHNISSIONER AHEARNEa Section 181 says the 8 APA applies to all actions.
9 COMMISSION ER GILINSKY:
Well, then why do you to say there is no reference to it?
11 HR. BICKWIT:
181 says that the Administrative 12 Procedures Act applies to the Commission to the extent 13 by its terms it applies.
If there -- if under the --
14 (General laughter.)
15 M8. BICKWITs If the Administrative Procedures 16 Act does not relate to a given subject area, then 181(a) 17 doesn't -- can't bring it into application when it 18 itself doesn't apply.
19 COHNISSIONER GILINSKY :
So it is the three 20 words "on the record" which do not appear in the Ac t i
l 21 which then lead you te conclude that one doesn't have to 22 trigger APA.
23 HR. TOURTELLOTTE Right. And 24 COHNISSIONER GILINSKY:
But then what did they 25 sean when they put in "the Administrative Procedures Act i
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30 1 applies?"
2 MR. BICKWIT:
It applies to all kinds of 3 things that the Commission does.
I don't think it 4 con tradicts 5
COMMISSIONER GILINSKYs Other than the 6 licensing.
I see.
7 MR. BICKW IT s It doesn't contradict Jim's 8 analysis.
9 COMMISSIONER GILINSKYs I see.
10 MR. TOURTELLOTTEt It is not a matter that 11 I mean, they didn't put that in there simply f or 12 hearings.
It has a broader application tha n that.
And 13 the difference between Len's view and my view is simply 14 the interpretation of the legislative history.
I don't 15 happen to believe that the legislative history mandates 16 that in the first place.
17 In the second place, I do not really believe 18 that 25 or 30 years of practice, as has been noted in 19 the notes, is really an accurate reflection of what has 20 happened for the past 25 or 30 years, and it is easy to 21 cite two or three examples for that.
22 COMMISSIONER AHEARNEs Could you explain that 23 remark?
24 25 i
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1 HR. TOURTELLOTTE:
Well, in the -- I mean, to 1
2 say that there is no confusion about the way 189(a) is 3 interpreted, that it has been steadily interpreted to 4 require adjudicatory hearings for 30 years, I do not 5 think is accurate either frcs an external standpoint or 6 an internal standpoint.
7 For instance, in the Siecel case, which I 8 think was in 1968, although it dealt with rulemaking, 9 the argument was made there that 189(1) actually 10 required an on-the-record hearing, and the answer from 11 the court was, no, it doesn 't require an on-the-record 12 hearing.
Ihe --
13 C0h.1SSIONER AHEARNE:
Was that -- Let's see, 14 now.
In that case, though 15 MR. TOURTELLOTTE:
I don't want to get into 16 the merits of it.
17 COHNISSIONER AHEARNE:
No, no, no.
But let 18 me--
19 HR. TOURTELLOTTE:
All I want to do is point 20 out that an argument was made, so that it w asn 't that 21 clear.
22 COMMISSIONER AHEARNE:
Right.
I thought in 23 the Siecel case that the people who were arguing that it 24 did require it was that it required it for rulemaking, 25 and the courts and the AEC said it didn't require it for ALDERSoN REPORTING COMPANY,INC, 400 VIRGINtA AVE. S.W., WASHINGTON, D.C. 20024 8 564-2345
32 1 rulemaking.
2 HR. TOURTELLOTTE:
That's correct.
3 COMMISSIONER AHEARNE-But I thought at the 4 same time the AEC did say it did require it for S licensing.
8 COBHISSIONER GILINSKY You've really been 7 doing your homework.
8 (Laughter.)
9 HR. TOURTELLOTTE:
My understanding is that 10 that as a matter of fact is about the only place, in the 1
11 Siecel brief that the Commission filed, where we said it 12 did require an adjudicatory hearing.
13 COHNISSIONER AHEARNE:
Yes, but I thought the i
14 AEC said it did.
15 HR. TOURTELLOTTE:
The only thing I can say 18 about the brief being filed in that regard is that 17 lawyers then made mistakes just like they do today.
18
( Laugh t er. )
19 COHNISSIONER GILINSKI It seems to me th e 20 question for the Commission to decide is whether we want 21 to deal with standardization together with the hearing 1
22 issue and embroil ourselves in all of these questions, 23 or whether we want to separate the two.
24 HR. TOURTELLOTTE:
Let me finish though the 1
25 answer to Commissioner Ahearne's question.
I would cite ALDERSoN REPORTING COMPANY,INC, s EIMQQ ch'iA atl N OLEL A A EDFAl~3
33 1 another example, Vermont Yankee, for instance.
And 2 based upon some institutional knowledge, what happened 3 at the Vermont Yankee, early parts of the Vermont Yankee 4 case, was that tha general counsel at that time directed 5 tha t certain special procedures would be devised for 6 that proceeding and that proceeding alone.
7 The argument that was made by the Staff inside 8 is basically the same argument that is made here today.
9 That is, that 189(a) requires an adjudicatory hearing; 10 you can 't do this.
And the general counsel was a fairly 11 strong individual and said, thank you for your advice, 12 we're going to do it anyway, so devise the procedures.
13 They devised the procedures.
They were 14 tested.
We lost in the circuit court, but we von a very 15 large victory in the Supreme Court.
So Vermont Yankee 16 stands out.
All of the cases that Vermont Yankee cites 17 and the case of Costle versus Pacific lecal Foundation 16 suggest that this agency can devise just about any 19 format it wants to for an adjudicatory procedure or for 20 any -- for hearing procedures, so long as they comport 21 with general concepts of fair play and justice.
22 And when I sit here and I am involved in an 23 argument about whether it is adjudicatory or not, again 24 I repeat, it is academic; because I have a very firm 25 belief that no administrative agency can afford, from a ALDERSoN REPORTING COMPANY. INC, 400 VIRGINtA AVE., S.W., WASHINGTON D.C. 20024 (202) 554-2346
34 1 standpoint of its credibility with its public, to be 2 without the opportunity for public hearing.
3 Now what we do in terms of se tting up the 4 standards for those public hearings is a matter of 5 policy.
And as a matter of policy, whether it is 8 required or not, I believe that you should foJ1ow 556 7 and 557.
So I don't really have any objection to the 8 fact that someone differs with me academically as to 9 whether adjudications are required or not.
10 COHNISSIONER AHEARNE:
Yes.
Which then gets--
11 the heart of the question then becomes:
What would be 12 the framework under 556 and 557?
What actual practices 13 would be embedded?
And I guess that -- part of my 14 reason for this line of questions was to bring out, I 15 think that the issue of not only what the current 16 statute requires, but what does the APA require, is not 17 a very simple answer.
18 And I believe that when putting up a bill 19 which modifies the hearing process, whether we have it 20 implicit or explicit, it will become explicit.
It will 21 become probably the big issue.
And that is why I am in 22 favor of incorporating directly in any final package 23 a--
l l
24 CHAIRMAN PALLADINO:
A reference?
l 25 COHHISSIONEB AHEABNE:
-- well, an explicit ALDERSoN REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHiMCToN. D.C. 20024 (202) 564 7I'5
35 1 description of what we are proposing to do.
Now this 2 doesn't mean that the standardization issue itself 3 should not go out for comment.
But I think any 4 legislative package going up would have to, for me I 5 think it would have to include the description of what 6 modifications in 189(a) we wish to make.
7 MR. TOURTELLOTTE:
Let me point 8
CHAIRMAN PALLADINO:
L e t m e --
9 MR. TOURTELLOTTEs I'm sorry.
10 CHAIRMAN PALLADIN0s Let me go back to one of 11 the suggestions you made in your opening-five minute
'r 12 remarks.
It may be you'll want to read it again, but 13 basically as I understand it you were going to ask for 14 more extensive comments on this subject in your proposed 15 revision of the Federal Register notice.
16 MR. TOURTELLOTTE:
Yes.
17 CHAIRMAN PALLADINO:
I think that would be 18 worth reading again, because it would capture what is l
19 intended with regard to these various points.
Now while l
20 that is out for comment, we can address specifically 21 what we want to do with regard to the hearing process.
22 I found your last paragraph or two in your 23 opening statement very helpful.
I 24 MR. TOURTELLOTTE:
Basics 11r what my last 25 paragraph contained was a recommendation to the l
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36 1 Commission as to how we might proceed frca here.
2 CHAIBHAN PALLADINO:
That would be partially 3 in response to Commissioner Gilinsky.
4 HR. TOURTELLOTTE:
I pointed 'ut that 5 Commissioner Gilinsky had made severa! comments, and 6 that other Commissioners may likewise have positions 7 which they wish to state.
And that because the proposal 8 before the Commission is that the package be sent to the 9 Federal Register f or comment, I suggest that the Federal 10 Register notice reflect the comments of the 11 Commissioners, the Senior Advisory Group, and the Task 12 Force members, to broaden the base of comment that might 13 be received.
14 And in making the suggestion, it perhaps 15 should also be mentioned in the Federal Register notice 16 that the Commission is considering othe r legisla tive 17 changes in the nature of changing the hearing process, 18 Section 189(a), as Commissioner Ahearne mentioned, l
19 adding a backfitting rule of general application, and 20 changing the quorum rule.
21 By so doing, the public will have an 22 opportunity to comment on the Commission 's en tire 23 legislative approach and the Commission will be better 24 informed in reaching its determination as to the conten t i
25 of the legislative package or packages which it wishes l
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2 So basically what I am recommending is that we 3 take the Federal Register notice and add to that perhaps 4 the comments of Commissioner Gilinsky, Commissioner 5 Ahearne, if Commissioner Roberts or the Chairman have 6 other comments about things that you would like for the 7 public to consider in reviewing this package, and also 8 inform them that we are considering changing 189 ( a ) to 9 perhaps give the -- to make it clear that the Commission to has great discretion in determining the hearing 11 formats.
12 In that way, the package can move along.
When 13 ve get all of those comments in, at that time I think 14 the Commission would be in a better position to 15 determine whethat they want, for instance, to send one 18 standardized package and a separate package covering the 17 balance of items or they want to send simply one 18 package.
19 CHAIRMAN PALLADINO And in the interim we 20 could work on those other issues--
21 MR. TOURTELLOTTEa Yes.
22 CHAIRMAN PALLADINO:
-- while we are awaiting 23 the comments.
24 CHAIRMAN PALLADINO:
That seems like a very 25 good suggestion to me.
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COHNISSIONER AHEARNE:
Yes.
2 COHNISSIONER ROBERTS:
I think that's 3 reasonable.
4 COHNISSIONER AHEARNE:
I still have other 5 question 3.
6 CHAIRHAN PALLADINO:
All right.
I wonder' if 7 that could at least give us a reference point for 8 proceeding with regard to the hearing, and maybe 9 entertain other questions.
Go ahead.
10 COHNISSIONER AHEARNE Jim, one -- before I 11 get to some minor questions on the paper itself -- you 12 mentioned that the Senate had taken action on 1080.
13 Ref resh my memory.
What is 10807 14 HR. TOURTELLOTTE:
I have the man who is in 15 charge of that, and I would prefer that he answer it.
16 HR. PARLER:
I'm not too sure that I'm in 17 chstge.
I happen to be informed about it.
I don't 18 really think I'm in charge of anything.
19 (Laughter.)
20 HR. PARLER:
But S.
1080 is the 21 Administration's regulatory reform bill --
22 CONNISSIONER AHEARNE:
All right.
23 HR. PARLERa
-- which passed the Senate on 24 March 24th.
Unlike regulatory reform bills in the past 25 such as the Ribicoff bill of several years ago, which ALDERSoN REPORTING COMPANY. INC.
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1 the general counsel briefed former members of the 2 Commission on, this regulatory reform bill does not 3 directly deal with adjudicatory matters such as those 4 that have been discussed here today.
5 However, the bill does recognize tha t there is 8 a need for administrative flexibility even in the 7 informal rulemaking area, so that the procedures which 8 are followed can be -- and these are my words now -- can 9 he adjusted to the type of issues that are raised, the 10 significance of the issued that are raised, and you will 11 not have an entira proceeding just because of its label 12 handled in a certain way, either completely adjudicatory 13 or completely not adjudicatory.
14 The Administration's bill on the House side is 15 H.R. 746.
That has been reported out by the Committee.
16 The last I heard it has not gone to the Rules 17 Committee.
18 COMMISSIONER AHEABNE:
Jim, could you 19 summarize what it is that this package would enable us 20 to do that we could not do now under the current rules?
21 Or putting it somewhat differently, I recognize the 22 advantage of getting Congress to verify tha t an 23 interpretation of ours is correct.
24 But putting that issue aside, if we were to --
25 what could we not do if we were willing to change our ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W. WASHINGTON, D.C. 20024 (202) 564 2345
40 1 regulations that this bill would enable us to do?
2 MR. TOURTELLOTTE Basically, I think there 3 are only two things.
That is, a clear one-step license 4 procedures the second is the valver of fees.
Everything 5 else I think we can do from a regulatory standpoint.
As 6 a matter of fact, I have directed or have requested that 7 the regulations pertaining to standardization be 8 redrafted to implement everything that is in this bill.
9 COMMISSIONER AHEARNE:
Now we can --
to MR. TOURTELLOTTE For two reasons.
One is 11 that, with the exception of waiver of fees and one-step 12 licensing, and that is for two reasons.
One is that 13 when the bill passes we will have regulations that will 14 be in effect that will implement that.
Number two is 15 that even without the legislation I think it can be 10 effectuated, and I think if the Commission sees fit to 17 pass these rules then I think it would be an important 18 signal to be sent to Congress.
19 I have a note here.
One other thing I think 20 that is involved is that application for site permits by 21 others than the applicants for construction permits is 22 als ti a n o th e r --
f l
23 COMMISSIONER AHEARNE:
When you say --
(
l 24 MR. BICKWITs How about the need for power 25 issue?
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HR. TOURTELLOTTE4 Yes.
Yes and no.
I think 2 that probably --
3 COMMISSIONER GILINSKYs Can't we do that with 4 a rulemaking?
5 HR. TOURTELLOTTE I think we could do it with 6 a rulemaking.
7 MR. BICKWITs I think you need legislation to 8 get rid of the federal responsibility for need for 9 power.
10 MR. TOURTELLOTTE:
Well, there is a difference 11 of view.
I think we could probably pass a rule that 12 would say that we would accept -- as a rule, we would 13 accept certification of FEBC, for instance, as 14 establishing a need for power.
15 COHHISSIONER AHEARNE:
You say -- The word you 16 used was a " clear one-step licensing."
Would I be 17 correct in interpreting that to mean that we can get 18 close to a one-step licensing if we modified our own 19 regulations?
20 MR. TOURTELLOTTE:
Well, in ef fect, it is 21 pretty much up to the industry; but if the industry were 22 to come in with a final design we could in effect review 23 it for CP and OL purposes and the hearing could be 24 conducted seriatis.
And it could be granted, both could 25 be granted simultaneously.
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42 1
COMMISSIONER AHEARNE:
I think you mentioned 2 once that there was one case where the AEC did do that.
3 NR..TOURTELLOTTE:
Yes, and as best I recall, 4 it was the Kovanee case.
It was about 1967.
I am not 5 certain it was Kovanee, but it was a Hidwest case.
8 COHNISSIONER AHEARNEs So in that case, --
7 HR. TOURTELLOTTE4 In that case, they came in 8 with what basically was a replicated plant and they had 9 s CP and an OL application filed at the same time, and to in one the hearing was conducted for the three and a 11 half days, and the next four and a half days.
It is a 12 little different from what we have today.
13 COMMISSIONER AHEARNE:
Just a few minor 14 questions.
You have in the paper that you sent up a 15 couple of areas where I would just like to get a better 18 understanding.
On page 12 -- this is page 12 of the 17 analysis, that is background and section by section 18 analysis --
19 CHAIRMAN PALLADINO:
Enclosure what ?
20 COMMISSIONER AHEARNE:
It doesn't have an 21 enclosure number, just background and section-by-section l
22 analysis, subsection q.
Could you explain what -- I was l
23 having a little difficulty understanding that.
24 HR. TOURTELLOTTE:
Well, basically the idea 25 was to assure that none of this legislation got in the ALDERSON REPORTING COMPANY, INC, l
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43 1
way of our regulations concerning the limited site 2 suitability.
That was it.
3 COMMISSIONER AHEARNE:
Limited site 4 suitability meaning that an applicant could apply to 5 have the site approved partially?
6 HR. TOURTELLOTTE:
For limited purposes.
7 CONNISSIONER AHEARNE:
By limited purposes, 8 what do you mean?
9 MR. TOURTELLOTTE:
Limited work 10 authorizations.
11 COHNISSIONER AHEARNE:
Okay.
12 MR. PARLERa May I --
13 HR. TOURTELLOTTE:
I may stand corrected.
14 NR. PARLER:
Under the existing early site 15 review procedures, as I understand them, short of coming 18 in -- short of an applicant coming in for the complete 17 approval of the site and the issuance of a sito permit, 18 an applicant, at i very early stage or because of the 19 applicant's particular desires, may just request that 20 certain issues regarding the site be examined.
21 And the present procedures permit that to be l
22 done.
I believe that it was the intent of this language
(
23 that you asked the question about to make it quite clear 1
24 tha t the sta tutory procedures do not eliminate that 25 flexibility in the current regulations.
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CHAIRMAN PALLADINO:
While you are on that 2 page, could I ask -- I only have two questions.
One is 3 on that page, the next paragraph, Subsection f of 4 Section 193 assures that a site approved under this 5 section may be used for any other purpose.
What about 6 interaction of uses involving multiple plant sites?
For 7 example, this says you could use the site f or other 8 purposes.
Is there an opportunity to address the fact 9 that another purpose might be some other kind of plant, 10 non-nuclear, and it might interact with a nuclear plant 11 tha t they might put on there?
Is that addressed?
12 MB. PARLER:
That is not addressed in this 13 paper, at least the parts of it that I am familiar 14 with.
That would be the kind of issue, however, that 15 would come up in the evaluation of a site for the 18 purpose which you have described under other applicable 17 criteria, such as the criteria in 10 CFR Part 100, the 18 reactor siting criteria, where I assume if you would 19 have the kind of situation, or the potential for the 20 kind of situation that you have described, that that 21 would be taken into consideration in either granting or 22 den ying the approval f or the multiple uses.
I 23 CHAIRHAN PALLADINO:
The basis for my question 24 was preserving the right of the Commission to explore 25 those ma tte rs.
1 ALDERSoN REPORTING COMPANY. INC, 400 VIRGINIA AVE. S.W, WASHINGTON D.C. 20024 (202) 554-2345
45 1
MR. TOURTELLOTTE:
I believe -- I am not sure 2 I understand your question right, but I believe the 3 section itself says --
4 CHAIRMAN PALLADINO What page are you on?
5 MR. TOURTElLOITE:
On page 10 of the draf t 6 bill at the top of the page on line 3, it says, quote, 7 "Other uses may, however, affect the validity of the 8 site permit where the conditions of its use for nuclear 9 power plant siting as the Commission may determine".
10 If your question was, will the Commission 11 still be able to -- In other words, if somebody comes in 12 and builds a coal-fired plant on one end of the site, 13 would that be taken into consideration?
The answer is 14 yes.
15 CHAIRMAN PALLADINO:
And you feel this happens 18 to preserve that right?
17 MR. TOURTELLOTTE:
Yes.
18 COMMISSIONER AHEARNE Still on the 19 section-by-section analysis on page 16, on the bottom of 20 the page talking about subsection e(2)(a).
It discusses 21 extension or renewal, and it has -- those seem to be two 22 separate items.
23 MR. TOURTELLOTTE:
Yes.
24 COMMISSIONER THEARNE:
Could you explain 25 that?
You have: " Extension could be granted on the ALDERSO.4 REPORTING COMPANY,INC.
400 VIRGINIA AVE, S.W., WASHINGTON D.C. 20024 (202) 564 2345
46 1 motion of an applicant or on the Commission 's own 2 motion.
Renewal would be based only upon the 3 application."
So it seems to be -- first, it seems that 4 extension sad renewal, both tarms would apply for an 5 applicant's request; but then there seems to be the idea 6 the Commission would extend it even if the applicant 7 didn' t ask f or it.
8 MR. TOURTELLOTTEs Well, those words got into 9 the proposal through consittee action, I guess is a good 10 vay to put it.
11 (Laughter.)
12 NR. TOURTELLOTTE:
Actually, under the APA I 13 don't think there is probably any necessity of having 14 the term " extension" or " renewal" in there.
I think 15 " renewal" is probably adequate, because if a renewal is 16 timely filed, even though the Comission does not act 07 upon it, the effect is that the existing permit or 18 license is automatically extended.
19 So although those words are in there, the 20 point that you aske is well taken and it is probably one 21 of those things that should be looked at more closely 22 before we decide what we are going to send up to z3 Congress.
24 CHAIRHAN PALLADINO:
It is part of the price 25 of consensas.
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47 1
(Laughter.)
j 2
MR. TOURTELLOTTEs It is.
3 C05HISSIONER AHEARNE:
Or part of the price of 4 working with a committee.
5 HR. TOURTELLOTTE4 If the price isn 't any 6 greater than surplusage of the word extension, why it is 7 a good price.
8 CONNISSIONER AHEARNE:
The next page, on page 9
17, reading subsection e(2)(b), I have two questions on to that.
The first is, is I resi it, -- and let's only 11 just use the word " renewal," " renewal shall be granted 12 unless it can be demonstrated..." and so forth.
Am I 13 correct in reading this that the burden is on the NRC to 14 demonstrate that the design will not comply?
15 MR. TOURTELLOTTE:
Yes.
16 COHHISSIONER AHEARNE4 So this is a burden on 17 the NRC staff that unless they can show something, then 18 the renewal is granted?
19 MR. TOURTELLOTTE:
Unless they can demonstrate 20 one of those two items that are set out in that part of 21 the bill, then they should go ahead and issue the 22 renewal.
23 COMMISSIONER AHEARNE:
So the applicant does 24 not have a burden of proof?
The applicant applies f or 25 the renewal and then it is up to the staff to prove that ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202(564-2346
48 1 it should not be?
2 HR. TOURTELLOTTEa Yes.
And the idea there is 3 tha t the applicant has already demonstrated --
4 supposedly, he has demonstrated the safety of the plant 5 initially, and that if we have any disagreement over 6 tha t, then we should tell him what it is.
7 COMMISSIONER AHEARNE:
Still working on that 8 paragraph, it saysa "Benewal shall be granted" and let 9 me now move down to, I guess it is the last "or".
"The 10 risk will be substantially greater than tha t estima ted 11 to exist at the time of the initial issuance of the 12 approval for which renewal is sought, and the design 13 changes necessary to bring the plant within acceptable 14 levels of risk."
15 Now with the word "and" in there, it seems to 16 imply that having the " design change necessary to bring 17 the plant within acceptable levels of risk" is not 18 anough on its own.
19 HR. TOURTELLOTTE:
Well actually the reason 20 that it is worded the way it is is because we wanted to 21 get two idea s in there.
Maybe there is a better way to 22 do it; I don't know.
We did spend a considerable amount 23 of time on this wording.
24 The first part of that conjunctive phrase 25 suggests that what we are going to do in the future is ALDERSoN REPORTING CohPANY,INC, 400 VIRGINIA AVE., S.W WASHINGTON, D.C. 20024 (202) 554-2345 j
49 1 look at the overall risk of plant operation --
2 COMMISSIONER AHEARNE4 Certainly, certainly.
3 HR. TOURTELLOTTEs in determining what kind 4 of backfitting requirements we are going to make.
The 5 second thing, though, r I mean, we wanted to get that 6 message across.
7 COMMISSIONER AREARNE:
Sure.
8 HR. TOURTELLOTTE:
Th a t we are going to look 9 at the overall risk.
10 COMMISSIONER AHEARNE:
Sure.
11 HR. TOURTELLOTTE:
In addition to that, 12 however, even if you look at the overall risk and you 13 says Well, the overall risk can be changed, and the 14 argumett may be well, what is substantiali 10 percent, 15 8 percent, 12 percent?
I don't know.
I think that is l
16 going to be a matter of engineering judgment, 17 ultimately.
But even if that is the case, suppose that 18 rou could substantially reduce the risk, but that it is 19 within the acceptable level of risk anyway.
20 CONHISSIONER AHEARNE:
Sure.
21 MR. TOURTELLOTTE:
Wh y would you go ahead and 22 do the o th e r ?
23 COMMISSIONER AHEARNE:
Hight.
I have no 24 argument with that concept.
It was the converse, that I 25 was wondering whether one could also read that as saying l
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50 l
l 1 that you first find that you went the other direction 2 because it is a conjunctive sta tement.
The design l
3 changes necessary to bring tne plant within acceptable 4 level of risk -- can you read that as saying that in 5 itself that is not enough?.
6 CHAIBRAN PALLADINO:
Is not enough for what?
7 COMMISSIONER AHEABNE:
Is not enough to 8 require a change.
9
- 58. TOURTELLOTTE:
I think if the plant were 10 not within an acceptable level of risk, it would always 11 have to be brought within an acceptable level of risk.
12 CONNISSIONER AHEARNE:
Right.
Yes.
13 MR. TOURIELLOTTE:
But the other phrase is 14 there basically 15 COMMISSIONEB AHEARNE:
Yes.
just to give the 16 MB. TOURTELLOTTE:
17 orientation that we are going to look at the overall 18 level of risk.
19 COMMISSIONER AHEARNE:
I understand that, and 20 I don 't' disagree with that.
It was reading it the other 21 vay that was concerning me.
22 CHAIRMAN PALLADINO:
While you are looking 23 COMMISSIONER AHEABNE:
Sure.
I have one that arises 24 CHAIRMAN PALLADINO:
25 on page 15 of this same section that we have been ALDERSoN REPORTING COMPANY,INC.
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51 1 looking at.
Th e p a rag ra ph rela tin g to subsection b of 2 Section 194 In the middle of the paragraph it says, 3 "The NRC is authorized to allocate the cost ordinarily 4 defrayed by fees collected among future applicants for 5 permits or licenses which propose to use the approved 6 standardized design."
7 I think I have the right one.
This appears to 8 be open-ended.
Suppose they don 't have any applicants?
9 Do we waive the faes entirely?
10 HR. TOURTELLOTTE:
For the standardized 11 design?
12 CHAIRMAN PALLADINO:
(Nods in the affirmative.)
13 5R. TOURTELLOTTE:
That is -- Yes.
14 CHAIRMAN PALLADIN04 So now it is different 15 from -- I think it was the site where you said if they 16 don't get any takers by the end of ten years, they pay 17 the fee.
18 HR. TOURTELLOTTE:
Correct.
l 19 CHAIRMAN PALLADINO:
Here you don't intend to 20 propose th a t a t all?
21 HR. TOURTELLOTTE:
No.
And --
l 22 CHAIRMAN PALLADINO:
The reason I am a little i
23 worried about that is, while I don't believe any of the 24 present vendors would capriciously come in with a plant 25 design, we could spend a lot of time and effort and l
l ALDERSoN REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
S2 1 never recover the fees.
2 HR. TOURTELLOTTE:
I understand tha t.
It is 3 strictly a matter of --
4 CHAIRHAN PALLADINO:
Judgment.
5 HR. TOURTELLOTTE We have discussed this 6 before, and it is a matter of whether you provide some 7 incentive or not.
The fact is it costs about three 8
CH AIRH AN P ALLADIN04 How about providing then 9 some incentive to get applicants.
10 MB. TOURTELLOTTE Yes, but it costs about $3 it to $10 million currently to develop a site, and there 12 are a lot of people -- it is hard for me to believe this 13 personally -- but there are apparently a lot of sources 14 that can stand $3 to $10 million and develop a site with 15 the prospect that they may never be able to sell that 16 site.
17 On the other hand, to develop a standardized 18 plant design is going to cost between probably 585 to 19 $120 million, up.
And it is very, very unlikely that 20 anybody will spend that kind of money unless they have a 21 purchaser pretty well in mind.
22 COMMISSIONER GILINSKYa Fees just seem to be--
23 HB. TOURTELLOTTE:
Consequently, we are likely 24 to get that fee back.
25 COMMISSIONER GILINSKY:
-- just small potatoes ALDERSoN REPORTING COMPANY,INC, 400 VIRGINEA AVE, S.W, WASHINGTON D.C. 20024 (202) 554-2345
53 1 compared to those numbers.
2 MR. T303TELLOTTE:
Yes.
3 COHHISSIONER GILINSKY4 Why does it matter one 4 Way or the other?
5 MH. TOURTELLOTTEa It is an incentive.
It may 8 be a caall incentive, but it is an incentive.
7 COMMISSIONER GILINSKYa Let me ask you about 8 tha t word " incentive."
You know, it is one thing for us 9 to make sure that we p rovide, le t us sa y, good service 10 to anyone who comes up with an application, whether it 11 is a custon application or a standard plant application 12 -- that is to say, a design which is not tied to a 13 particular site -- or some other kind of application 14 which flows from the imperatives of the way industry is 15 organized and the economic incentives and so on.
16 It is another thing f or us to say that we 17 think we want to steer the market in a certain way.
And 18 is that what you are saying?
t l
19 MR. TOUBTELLOTTE:
No.
No.
[
20 CONHISSIONER GILINSKY:
Because if you are, I 21 don't think that is our business.
22 HB. TOUBTELLOTTE:
No, I don't think that's --
23 I would agree with you, that is not our business.
But 24 the simple fact is that there are economies of our own 25 resources -- economies in tne use of our own resources ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W WASHINGTON. D.C. 20024 (202) 554-2345
54 1 that are to be realized by standardization add the 2 standardized approach.
Number one.
3 Number two is:
It is at least argued fairly 9
4 strongly by most people that a standardized plant would 5 be a plant that would be easier to regulate from a 6 safety standpoint, and would be better -- not be 7 better-- would 8
CONNISSIONER AHEARNE:
Make maintenance and 9 operations bettar.
10 HR. TOURTELLOTTE:
would go a long way 11 toward assuring the public health and safety to a 12 greater extent.
13 COMMISSIONER GILINSKY:
Yes, but that is not 14 what is driving this bill.
I think that may well be 15 true.
In fact, I think probably there is something to 18 that, but you can argue it either way.
And people have l
17 arguen these things either way.
18 Ihe thing that concerns se is in the purpose 19 of the bill.
We also talk about encouraging 20 standardization.
21 CHAIBHAN PALLADINO:
That is the purpose.
22 COMMISSIONER GILINSKY :
Well, why are we 23 encouraging standardization?
You know, it is one thing 24 to say that we don't want to be in the way 25 unnecessarily.
We don't want to be creating obstacles ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W, WASHINGTON. D.C. 20024 (202) 554 2345
55 1 when industry has a really good way of doing something.
2 We ough tn't to be creating unreasonable obstacles here 3 to then carrying that.out.
4, It is another thing to say that we are smart 5 enough to guide this industry in the direction it ought 6 to go.
I don't think we are.
I don't think that this 7 agency has that sort of competence.
8 CONHISSIONER AHEARNE4 Could I ask, Vic, do 9 you mean that you don' t believe that we have enough 10 evidence to support that standardization would lead to 11 an improvement in safety?
12 COMMISSIONER GILINSKY.
I don 't know.
My 13 inc13 nation is to think that it would, but that is not 14 wha t is driving this bill.
I mean, this bill is really 15 intended to make it easier for industry to build a lot 16 of plants.
17 CHAIBHAN PALLADIN0s Also to improve safety, 18 and I think that is one of the -- I think I have said it 19 everytime I have spoken about it.
It will enhance 20 safety.
21 COMMISSIONER GILINSKY:
Well, where are the 22 studies?
Where is the backup on that argument?
I mean 23 in tuitively I an inclined to agree with you, but on that 24 sort of basis you wouldn't write a bill and reorganize 25 the industry and so on.
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56 1
5R. TOURTELLOTTE:
There is an OTA study on it.
2 CHAIRHAN PALLADINO:
There is what?
3 MR. TOURTELLOTTE:
OTA.
4 CONNISSIONER AHEARNE:
Office of Technology 5 Assessment.
6 5R. TOURTELLOTTE:
And the views that are 7 expressed in there are pretty much the views that the 8 Chairman has expressed.
9 CHAIRMAN PALLADINO:
We are getting far afield 10 from my qu e s tion.
11 (Laughter.)
12 CHAIRMAN PALLADINO:
Could you finish it, and 13 then I would like to get back to the question.
14 COHNISSIONER GILINSKY I think it is an 15 important point.
I think that, you know, we ought to 16 have different windows that people can come to, and we 17 have to make sure we provide good service at each one of 18 those windows.
I agree with that.
But there is more l
l 19 than a hint in this bill --
20 COHNISSIONER AHEARNE:
There are certain 21 places where there are some phrases which I guess I 22 would be more comfortable without, where you have "this 23 is an incentive," or something.
24 COMMISSIONER GILINSKY:
-- or really what I 25 would call'" steering the industry."
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57 1
COMNISSIONER AHEARNE:
Yes.
2 CONNISSIONER GILINSKY:
Let me just add a 3 further point.
You mentioned our resources.
Our 4 resources here are really very, very minor compared to 5 what goes on outside.
It is really the eff ect tha t you 6 have on the industry and the expenditures involved there 7 that one has to look at if you want to see what the 8 bottom line is economically of going one way or the 9 o th e r.
10 MR. TOURTELLOTTE:
I cannot -- I agree that we 11 should not be driving the industry in one direction or 12 the other.
However, I also believe that simply making 13 standardization available to them or making it possible 14 for them to move to standardization is not driving them 15 but is simply l
16 CHAIRHAN PALLADINO:
I think using words like l
17 " incentive" and the like does give a different tone to l
18 it that we could correct very easily.
19 MR. TOURTELLOTTE:
Yes.
20 COHNISSIONER AHEARNE:
I would like to make 21 one comment in that area.
Five years ago, Jack O' Leary 22 tried very hard to convince the previous administration,
l 23 in the early stages of the licensing bill, to do i
24 something shich would almost mandate standardization.
l 25 His argument was that industry was really at the point
(
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58 e
1 where that ought to be done.
And his principal argument 2 was on the basis that it would improve safety, it would 3 improve safety from the point of enabling construction 4 to be done on a much more consistent pattern, and that 5 everyone involved in, it would gradually get used to 8 building this one system, and that people learning how 7 to operate it would have one system to be operating on.
8 A lot of us involved at the time did not agree 9 with him.
For myself, 1 think I have seen enough over to the subsequent years to believe that we ought to be 11 p ut ting in place something that makes standardization --
12 I would view it not so much as enabling it to be done; I 13 think the enabling is already there.
14 I believe that the current regulation would 15 enable much of what standardization would accomplish to 16 be there.
I would view this kind of a bill as almost 17 forcing standardization.
18 CHAIBMAN PALLADINOs Sncouraging it.
19 CCHMISSIONER AHEARNE4 But I am not upset by
[
20 that.
21 COMMISSIONER GILINSKYs I guess I don't think 22 those sorts of decisions ought to get made in this 23 agency.
I 24 COHNISSIONER AHEARNEs Well, no, they end up 25 getting made ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVEL, S.W., WASdlNGToN D.C. 20024 (202) 554-2346
59 1
CHAIRMAN PALLADINO:
We are proposing it.
2 COHNISSIONER AHEARNE4
-- in the Congress.
3 CHAIRHAN PALLADINO:
Yes.
4 COHNISSIONER GILINSKYs Well --
5 (Laughter.)
6 COHNISSIONER GILINSKYs
-- I understand that, 7 but what you are doing is you are saying we know how 8 this industry ought to run, and this is the proposal we 9 have.
10 COMMISSIONER AHEARNE4 Everytime we put out a 11 rule that is exactly what v.i are saying.
12 COHHISSIONER GILINSKYa Well, it is one thing 13 to say that there are certain constraints that flow from 14 the requirements of safety that have to be imposed.
It 15 is another thing when you start telling them what their 16 economies of scale are and so on.
I don't think those 17 are things we know about.
I don't think our staff knows 18 about those things.
19 CONNISSIONER AHEARNE:
This is not so much 20 economies of scale.
Ihis is good safety practice that i
l 21 is the issue, I believe.
22 CHAIRMAN PALLADINO:
Well, maybe that point of l
23 view is the one that you would want to see included.
24 COMMISSIONER AHEARNE:
Well, I think my 25 comments I will be providing will essentially be at ALDER 3oN REPORTING COMPANY,INC,
_400_ VIRGINIA AS S.W WASHINGTON D.C. SUE 4 qEE@ N _ _.. _
g
60 1 least my own viavpoint.
2 COMMISSIONER GILINSKYs How do you plant to 3 handle the comments?
I think you said something about 4 including people's comments?
5 CHAIRHAN PALLADINO:
I will come back to 6 that.
Could I just finish my question?
I would like to 7 have comments on whether or not we shouldn't close that 8 loop so tha t if there are -- if you plan to spread this 9 cost out over five applicants, and you only spread it 10 over two --
11 COHEISSIONER AHEARNE:
At the end of ten years.
12 CHAIRMAN PALLADINO:
at the end of ten 13 years, some provision to recover the cost.
It is a 14 ainer point, but that was the whole purpose of my 15 question.
16 Coming back to your basic question, the 17 proposal that Jim had made was the one that I was going 18 to suggest we follow, where we try to broaden the scope l
l 19 for comments; and any member of the Commission who has a 20 particular point on which he wants to get comments, 21 expressing his own view on that, that we would try to 22 include that on the notification.
1 l
23 COMMISSIONER tiLINSKY:
Well, how would you l
24 deal with comments on the text?
Are you going to leave 25 the text as it is?
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61 1
CHAIRMAN PALLADIN0s I was going to propose
~
2 that we leave the text as it is, except where 3
COMMISSION'ER GILINSKYa And what, just a 4 series of line-in, line-out comments, or observations, 5 or what?
6 COMEISSION ER AHEARNE:
I would guess if a 7 majority of us wanted something changed, I assume we 8 would change it.
9 CHAIRMAN PALLADINO:
That's right.
We would to enance it.
11 CONNISSIONER AHEARNE:
What happens if there 12 is a split?
13 (Laughter.)
14 CHAIRHAN PALLADINO Then -- Well, then we 15 would follow what we have.
I am viewing it this way:
16 The notification has to be rewritten.
There may be some 17 word changes that Commissioners feel pretty strong about 18 that they would like to get changed.
We will just have l
19 to decide whether we do or not, on a majority basis.
If 20 we do not get a majority to agree, if we are evenly l
21 split, then I think it comes down to whether or not the 2: Commission feels strongly to say "I'd like to get 23 comments on that point," or "I want to express that I 24 f eel this way, and I would like to get the public 25 comments on it," then I think we can proceed that way.
l
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COMMISSIONER GILINSKY So what do you plan to 2 do?
Have assistants simply get toge th e r ?
3 CHAIRMAN PALLADINO:
I would propose that 4 following the suggestion that Jim made, that he rewrite 5 the notification that is going in the Federal Register 8 asking f or comments, including those points that appear 7 to be different from the majority, and circulate that to 8 see how we like it.
9 Also, there are some word changes that have to been proposed and we can negotiate those with the 11 Commission.
12 COMMISSIONER GILINSKY Let's see, what did 13 you mean when you said those points which are different 14 from the majority?
15 CHAIRMAN PALLADINO:
Well, for example, Vic, I 16 :nink you had a coupla of points.
17 COMMISSIONER GILINSKY:
You mean have him 18 characterize the various points?
10 CH AIRMAN P ALLADINO:
Yes.
For example, you 20 had a fundamental difference on one particular point.
CO*MISSIONER AHEARNE:
FERC, need for power.
d 21 22 CHAIRMAN PALLADINO:
Need for power, for 23 example.
And the majority may say, well, we sort of 24 lik e it the way it is written up here.
But if you want 25 to express your particular point tha t we ought to do it ALDERSoN REPORTING COMPANY. INC.
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63 1 differently and you would like comments on it, tha t 2 would be included in the notification.
3 MR. TOURTELLOTTE:
What I would suggest also 4 is that if, indeed, I am going to write that up, I do 5 not sind giving it a shot.
I think that th e e Commissioner who sade the comments ori71nally -- like 7 Commissioner Gilinsky is the one who should ultimately 8 take my draft and redo it, or whatever.
9 COHNISSIONER GILINSKY:
I expect we will do 10 that.
11 ER. TOURTELLOTTE:
I would prefer it if you 12 would write it and then somehow I can make a transition 13 and put it in the text.
14 COMMISSIONER GILINSKY:
We will just add a 15 comment of our own.
16 By the way, on that point, let me just tell 17 you what --
18 COMMISSIONER AHEARNE:
I was going to ask 19 you.
20 COMMISSIONER GILINSKI:
It isn't that I am so 21 such bothered by having state findings on the need for 22 power, but it does seem to be inconsistent to say that l
23 we legislate in this area, and the federal government is
(
24 involved becauce electricity is something that flows l
25 across state lines and therefore involves more than l
I l
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64 l
1 individual state interests, and then turn around and say 2 but the right way to decide need for power is to just 3 have it decided by a single state.
4 CHAIRHAN PALLADIN0s Or a region.
5 CORRISSIONER GIIINSKY:
Or a region would be 6 fine.
7 CHAIRNAN PALLADINO:
But I think he does have 8 it.
9 CONNISSIONER GILINSKY:
But it says, it's sort 10 of, you know, federal government, region, state, 11 locality, or something.
12 NR. TOURTELLOTTEa They are interstate.
13 CORRISSIONER GILINSKY:
I think -- Well if you 14 restricted it to interstate regional organi~zations, then 15 it would be more logical.
16 MR. TOURTELLOTTE:
I thought that we had in 17 there somewhere the words that indicated that the 18 regions were interstate regions.
However, I can also 19 say I think yours is a very good idea on relying on the 20 certifications of the FERC.
I think that's an excellent 21 idea and would simplify it.
22 COMMISSIONER GILINSKI:
It just seemed to be 23 more consistent with arguing that these were matters 24 involving interstate interests.
25 COMMISSIONER AHEARNE4 It would accomplish ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 *M
65 1
just as much, in a sense, from our own perspective as it 2 would to get us out of the verification of the need for 3 power, which I think was the underlying point.
4 HR. TOURTELLOTTE:
FERC does that sort of 5 thing on a regular basis, and they have Reliability 6 Councils that are established throughout the United 7 States, and I think it is a fairly reliable source of 8 information and should raise at least a presumption that 9 there is a need for power.
It should be fairly 10 dispositive of that.
11 COMMISSIONER AHEARNE.
I would be willing to 12 go with that, with the FERC recommendation.
13 CHAIRHAN PALLADINO:
Well, on that point you the Commission should work 14 should work with the 15 with--
16 COMMISSIONER GILINSKY:
Well, if there are 17 three commissioners who are interested in doing it, then 18 by all means put it in.
Otherwise, I would just like it 19 to be something on which we could get comment.
20 COMMISSIONER AHEARNE:
Well, if there are just 21 two who would like it and two who would not, then it is 22 not an option.
23 CHAIRMAN PALLADINO:
Well, I think when we get 24 to that point we should identify the matter on which we 25 are split and ask for comments.
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COMMISSIONER AHEARNEa Could I ask just two 2 other questions?
3 CHAIRMAN PALLADINO:
Sure.
4 COHHISSIONER AHEARNE:
First, Jim, at the end 5 of the bill, page 15, Title III, you have, "All sections 6 of this Act shall take effect as of the date of 7 enactment and shall apply to all proceedings pending as 8 of the date of the enactment or commenced on or af ter l
9 the date of enactment."
10 Was that boilerplate, or did you have in mind 11 that you would see some -- let us say right now we 12 happen to have operating license hearings.
Is there 13 something in here that you would see triggering onto 14 those ongoing operating license hearings?
15 3R. TOURTELLOTTE:
No.
Not currently.
16 17 18 19 20 21 22 23 24 25 l
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I do believe that, given the history of 2
p=
sage of legislation in the past L
(Laughter.)
4 MR. TOURTELLOTTE:
-- and given the fact that 5 ve are revamping our standardization regulations, it 6 could well be that we could get those regulations 7 revised and have them in place and someone in the 8 industry could make an application for a standardized 9 plant and be an ongoing application, and then this would to have an effect.
11 COMMISSIONER AHEARNE:
My second question 12 related to the letter that Guy Cunningham sent, that Mr.
13 Dircks forwarded to us.
I wondered whether you would --
l 14 the first part to a large extent goes to some of the 15 hearing questions that we have already spent a good part 16 of the morning on.
17 But I wondered whether you could take up from 18 the middle of page 2.
He starts talking on specific 19 issues, if you would care to comment on each of those.
20 MR. TOURTELLOTTE:
The middle of page 2?
l i
21 COMMISSIONER AHEARNE:
Hight.
Where he l
l 22 starts-- Do you have comments on those points?
l l
23 MR. TOURTELLOTTE:
Well, in the second 24 paragraph on page 2 he makes a small notation tha t we l
25 improperly referred to "NBC national laboratories," that l
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they are DOE national laboratories.
We basically didn't 2 mention whether they were NRC national laboratories.
We 3 just used the term " national laboratories."
So I don't 4 really understand that one.
5 The second one is that he says that licensing 6 decisions should not be subject -- or is quoting Section 7 2(a)(10) on page 4,
where we say:
"The licensing 8 decisions should not be subject to duplicative 9 adjudication in the absence of a showing that a design 10 change is necessary."
11 The comment there is that this is a Catch-22, 12 since it appears that the required showing would 13 probably be made only in an adjudication.
And all I can 14 say about that is that the showing can be made in a 15 pleading.
An adjudication is not necessary.
The l
16 ultimate determination would be made as a result of a 17 judgment on the pleadings or on an adjudicatory 18 hearing.
So there is no Ca tch-22.
19 The second comment, 193( d) ( 1 ) on page 8, 20 states thata "The section provides for a granting of an 21 early site approval if the Commission finds that the 22 proposed site is suitable for the construction and 23 operation of the f acility or f acilities described."
24 There is no requirement in the draft bill, however, that 25 an application for an early site review contain a ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
69 1 description of the facility of facilities proposed to be 2 constructed on the site.
3 There is only a vague requirement that the 4 application shall "contain information required by the 5 Commission."
This is ampli fied in great detail in the 6 section by section analysis for 193(c).
Perhaps some of 7 this specificity should be in the draft bill itself.
8 That was a matter that was considered early on in the 9 drafting of the bill.
We had considerably more 10 specificity in there.
11 It was generally agreed upon by the members of 12 the Task Force, and I think perhaps the Senior Advisory 13 Group, that that would not be good draf ting; that it 14 would impair potentially the Commission flexibility for 15 dealing with these matters in the future.
So that is 16 why we left it in that way.
17 As a matter of fact, a general rule of 18 draf ting legislation is tha t you do not want to get too 19 auch into the specifics of what it is that is the object l
20 of the regulation.
Otherwise you tie the regulator's 21 hands, and instances arise which cannot be foreseen and l
l 22 create the problem that there must be further 23 legislation.
So tha t is generally avoided.
I i
24 Next l
l 25 COMMISSIONER AHEARNE.
We addressed the next l
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70 1 one already.
2 NR. TOURTELLOTTE:
The next page, then, 3 Section 193(e)(2), this section, dealing with the 4 extension and renewal of early site approvals, is silent 5 with regard to uhether a hearing opportunity will be 6 available.
In the face of such silence, an extension or 7 renewal -- that is, a change in the expiration date --
8 is probably an amendment subject to an opportunity, a 9 hearing oppo rtunity requirement of 189(a) as to construction permits are now.
11 The same comment applies to Section 194(d)(2),
12 at page 11.
The question that I have is why 189(a) any 13 more than 193(d)?
Because in this scheme, at least as 14 we currently have it, although I agree that we may 15 change it in the future, each one of these sections has 18 their own autonomous provision of an opportunity for a 17 h ea ri ng.
t 18 And I would think in a question of statutory l
l 19 construction that one would not look to a section which I
20 has by explanation in the legislative history been 21 excluded from the consideration of hearings for matters 22 a rising under that general section, but they would look 23 to the autonomy of the 193(d) hearing as being the one l
l i
24 that would govern.
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COMHISSIONER AHEARNE:
You covered the last 2 two.
3 MR. TOURTELLOTTE:
Yes.
Okay.
4 CHAIRHAN PALLADIN0s Do you have any more 5 questions?
6 CONHISSIONER AHEARNE:
I will write up my i
7 comments and give them to you.
8 CHAIRMAN PALLADINO:
Let me see if we have a 9 consensus of thinking on the followings that we ask Jim 10 to work with each Commissioner on the points that they l
11 vant to make sure reflect their views, that they want to 1
12 make sure are accomplished in the notice.
And by 13 working with them I mean working to make sure that the 14 Commissioners' views are properly expressed.
15 Ihen if there are specific word changes the 16 Commissioners want -- feel strongly enough they'd like 17 to see us change them, I would suggest you work with the 18 staff representatives to see if we can get a consensus 19 on those word changes.
If we reach an impasse on word l
20 changes and a Commissioner feels strongly that ther 21 would like to get some comment on the point of view that 22 the changes reflect, then _he can include them in his own 23 comments.
24 But do we have a consensus on this way of 25 proceeding?
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COMMISSIONER AHEARNE:
That sounds fine.
2 COMMISSIONER ROBERTS:
(Nods affirmatively.)
3 CHAIRMAN PALLADINO:
Do you agree?
4 COMMISSIONER GILINSKYa Yes.
I think getting 5 comment on it is fine.
I'm not sure I'm persuaded that 6 legislation of this sort is necessary, particularly in 7 view of the fact that we can accomplish essentially all 8 of this on our own.
9 CHAIRMAN PALLADINO:
Well, the stuff is to go 10 out for comment.
11 COMMISSIONER GILINSKY:
But by all means let's 12 get comments and do it this way.
13 CHAIRMAN PALLADINO:
Well, I personally would 14 lik e to take this opportunity to commend the Task Force 15 for a tremendous job.
It reflects a lot of work, a lot 16 of thinking, and I know it has brought to focus a number 17 of controversial issues, but I think properly so.
And I 18 would encourage you to keep up the good work.
19 I also commend the Senior Advisory Committee 20 for its input.
21 MR. TOURTELLOTTE:
Thank you very much.
22 COMMISSIONER GILINSKY:
I think you have got m
a--
24 MR. CRANE:
Mr. Chairman, you asked earlier 25 about the views of the -- the differing views of other ALDERSoN REPORTING COMPANY,INC, l
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73 1 members of the Task Force.
I would like to qualify just 2 a bit how Jim characterized those.
3 First of all, my memo, with which Judge Winter 4 was in agreement, expressly reserved judgment on what 5 the best type of hearing was.
So it's not accurate to 6 say that the Senior Advisory Group and the Task Force 7 are nine to three in favor of more flexible--
8 COMMISSIONER AHEARNEs Peter, could you use 9 the mike?
I think people in the back are having 10 difficulty hearing you.
11 MR. CRANE:
Since the memo expressly reserved 12 judgment on what the best type of hearing is, it's not 13 quite accurate to say that it was a nine to three vote 14 in f avor of more flexible hearings over adj udicatory 15 hearings.
The point rather was that because 189(a) has 16 been given a certain interpretation for 28 years with 17 regard to reactor licenses, that that is a fact that has 18 gotten to be taken into account.
And if you try to 19 avoid that in the legislation, you are begging for 20 confusion; that either you have to say the hearing is 21 going to be in accordance with 189(a), or you say 22 notwithstanding 189(a), et cetera.
And that was the Z3 point.
24 COMMISSIONER AHEARNE:
Or you say, here are 25 some proposed changes to 189(a).
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NR. CRANE:
Bight, but that you deal with it 2 explicitly one way or the other.
3 Thank you.
4 CHAIRMAN PALLADINO:
I would presume the 5 questions that you raised on this point would be 6 reflected in the requests for comment.
7 Thank you, Peter.
8 All right, anything more on this item?
9 (No response.)
10 CHAIRMAN PALLADINO:
Well, thank you very 11 auch.
We s pprecia te your presentation.
We will stand 12 adjourned.
13 (Whereupon, at 11:40 a.m.,
the meeting was 14 adjourned.)
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MUCZ.AR REGULATORY CO.W.ISSICN This is to certif*/ that the attached ;receedings befcre the COMMISSION MEETING in the satter of: Briefing on SECY-82-128 - Proposed Legislation:
Nuclear Standardization Act of 1982 Data of Proceeding:
April 16, 1982 Docket flumber:
Place of Proceeding:
Washington, D. C.
wore held as herein appears, and that this is ti'e original transcript thereof for the file of the Ccamission.
Jane N.
Beach t
Official Reporter (Typed) f f
l l
0 icial Reporter (Signature) l l
1 i
t 1
1 e
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