ML20054M717

Transcript of 820709 Public Meeting Re Briefing on Crbr Schedule in Washington,Dc.Pp 1-19

ML20054M717
Person / Time
Site:	Clinch River
Issue date:	07/09/1982
From:	NRC COMMISSION (OCM)
To:
References
REF-10CFR9.7 NUDOCS 8207140295
Download: ML20054M717 (20)

Text

4 NCCI.IAR RIGULATORY COM!CSSICN

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COMMISSION MEETING

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In &Je Mat:tzu cf:

PUBLIC MEETING BRIEFING ON CLINCH RIVER BREEDER REACTOR SCHEDULE l

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DA*E:

July 9, 1982 PAGzs:

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Washincton, D.

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400 vi.ginia Ave., S.W., Wasni..g-9, D. C. 20024 Talachc:a: (202) 554-2245 i

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1 UNITED STATES OF AMERICA 2

NUCLEAR REGULATORY COMMISSION 3

f 4

BRIEFING ON CLINCH RIVER BREEDER REACT 0E SCHEDULE 5

6 PUBLIC MEETING I

8 Nuclear Regulatory Commission Room 1130 9

1717 H Street, N. W.

Washington, D. C.

to Friday, July 9, 1982 11 The Commission met, pursuant to notice, at 12 3:45 p.m.

13 f

14 BEFORE:

15 NUNZIO PALLADINO, Chairman of the Commission VICTOR GILINSKY, Commissioner 16 JOHN AHEARNE, Commissioner JAMES ASSELSTINE, commissioner 17 THOMAS ROBERTS, Commissioner 18 STAFF AND PRESENTERS SEATED AT COMMISSION TABLEa 19 S. CHILK M.

MALSCH 20 F. REMICK 21

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DISCLAIMER

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This is an ' unofficial transcript of a meeting ~of the United States Nuclear Regulatory Comission held on Ju lv 9 ' 19 8 2 -

in the Co:5missi'on's offices at 1717 H Street, N.

W., Wasnington, D. C.

The meeting was open to public attendance and observation.

Tnis transcript has not been reviewed, corrected, or edited, and it may contain inaccuracies.

Tne transcHpt is intended solely for general informational purposes.

As provided by 10 CFR 9.103, it is not part of the forinal or infomal

' record of decision of the matters discussed.

Expressions of opinion in

..this. transcript do not necessarily reflect fina.1 determinations or

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beliefs.

No pleading or other paper may be filed with the Comissio'n in

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Q, any proceeding as the result of or addressed to any' statement or argument i

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-; contained herein, except as the Com ss on may aut or ze.

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Ea9CIEEIEEE 2

CHAIRMAN PALLADIN04 Ladies and gentlemen, 3

this meeting pertains to the Departm ent of Energy's 4

request for an exemption under 10 CFP 50.12 to cond uct 5

site preparation setivities for the Clinch River Breeder 6

Reactor.

7 The Commission has under consideration an 8

order. which would prescribe the procedures and schedule 9

for th'e" Decision"on this request.

The purpose of to today's meeting is to address scheduling matters.

11 We have received from the Sierra Club and the 12 Natural Resources Defense Council a motion for summary 13 denial of Applicant's Section.12 request, or

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alternatively a request f or an adjudicatory hearing.

14 15 Today's meeting is to discuss this motion and request as 16 vell.

17 I would like to turn the meeting over to the 18 General Counsel, Mr. Bickwit, to brief us on the draft order and the background and considerations relating to 19 20 the NRDC and Sierra Club motion.

Are there e.ny comments the Commissioners would 21 22 like to make at this time?

3R. BICKWIT.

You have,before you a draft 23 order attached to SECY-82-287.

This was drafted before 24 25 the filing by NRDC and the Sierra Club of their motion

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1 for summary denial.

2 With respect to that motion, I have made it a 3

practice of not advising whether to grant or deny these 4

motions, but I have reviewed it from the standpoint of 5

legal analysis, and I do not find the legal arguments 6, presented in this motion to be persuasive.

7 The Commission has a number of options, they 8

agree with that analysis, not having heard the 9

documentaElon ofit.

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10 COMMISSIONER AHEARNE:

Nor seen it.

11 HB. BICKWIT:

-- nor seen it.

They can deny 12 the motion, and vote the order as written and as 13 attached to the SECT-paper.

Alternatively, they could 14 not deny the motion until they see a legal analysis, and

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15 incorporate that analysis, assuming they agree with it, 16 in th e d'e nia l, a n d not vote this order toda y.

17 Another option would be to take up these i

18 considerations as part of the merits consideration of 19 the entire matter, and answer this particular motion 20 down the road when it considers all of the arguments 21 associated with this request.

22 There are various sub-options associated with 23 those, but why don't I turn the meeting back to you, Mr.

24 Chairman, and see.where the Commission stands in P.5 general.

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CHAIBMAN PALLADINO:

Len, as part of that last 1

2 option, could a reference be made to the motion and say 3

that the Commission has this motion and request under 4

ndvisement and will publish a decision in a separate 5

order, and not tie it to when we would do it?

6 MR. BICK*dIT.

That would certainly be-7 available.

8 CHAIRMAN PALLADINO:

Let me try a proposal,

~ ~ih proposal is that we issue the order, and on 9

then.

e 10 page two, just before "This is so ordered," introduce,a 11 paragraph, copies of which I am going to hand out, that 12 would say, "On July 9, 1982, the Sierra Club and 13 National Resources Defense Council filed a motion for r

k-summary denial of Applicant's Section 50.12 request or 14 15 alternatively request for adjudicatory hearing.

The Commission has this motion and request under advisement 16 17 and will publish its decision in a separate order."

l 18 That would not force a hasty decision on the 19 NRDC/ Sierra Club notion and request, but would recognize 20 that it exists and would have to address it.

21 COMMISSIONER GILINSKY:

Except that it would l

22 'fol10V l

CHAIRMAN PALLADINO:

I,f we don't deny it, then l

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24 ve vill change our schedule.

We vill have to come back 25 and reconsider.

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1 COMMISSIONER ASSELSTINE:

It also rhanges the 2

order, too, if we later act f avo rably on the motion, 3

since the order says that we are going to treat this as 4

an informal proceeding.

5 COMMISSIONER GILINSKY:

That is what I was 6

about to say.

7 MR. BICKWIT:

I think that you are'all saying 8

the same thing.

You start down this road, and if you 9

don 't d eny' it,' ydu, change that road, perhaps

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10 dramatically.

l 11 COMMISSIONER AHEARNE:

I have just skimmed the 12 petition, but if I read it correctly there are two parts i

13 to it.

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14 HR. BICKWIT Right.

N-15 COMMISSIONER AHEARNE:

If we were to accept 16 the first part, it would cancel.

17 COMMISSIONER ASSELSTINE:

You would not go 18 down this road at all.

19 MR. BICKWIT:

Tha t is right.

20 CHAIRMAN PALLADINO:

Or we could' alternatively l

21 vote to deny the pe tition.

22 COMMISSIONER AHEARNE:

Yes.

23 CHAIRMAN PALLADINO:

I would be p re pa red to

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24 vote to deny the petition.

25 (General laughter.)

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1 CHAIRMAN PALLADINO:

I don't know if other 2

Commissioners who are prepared to go that way or not.

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3 COMMISSIONER ASSELSTINE:

I have not read it 4

yet, so I would pref er not to vote on it.

5 (General laughter.)

6 COMMISSIONER ROBERTS:

I prepared to vote for 7

that.

8 CHAIRMAN PALLADINO:

But if we are not prepared o vote on it, then we are not prepared to vote t

9 10 on it, then I would propose what I have proposed, that 11 ve put this paragraph in.

12 COMMISSIONER AHEARNE:

Len, you say that you 13 have addressed it.

Could you,briefly summarize your

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s' 14 addressabr-and also tell me when you would have 15 something in writing?

16 MR. BICKWIT:

The basic arguments, and if you 17 find another basis please raise it, but I found --

18 COMMISSIONER AHEARNE:

I just skimmed it.

19 MR. BICKWIT:

I found the most ba sic arguments 20 to be that res judicata applies to this proceeding, 21 therefore, it is a violation of that principle to 22 continue with this proceeding.

23 COMMISSIONER AHEARNE:,I guess'I would not k

have put it that way because I was never very clear on 24 l

25 res j udica ta, estoppel, that was a morass I tried to I

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ALDERSCN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345

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1 avoid before.

But I gather the basic issue is, when is 2

an agency decision final.

3 CHAIRMAN PALLADINO:

I think he was trying to 4

get there, and I am hoping he goes there.

5 ER. BICKWIT:

The agency decision made 6

previously was final from the standpoint of its 7

revievability, and after a decision by those agrieved 8

not to review it, it is final even beyon,d its 9

r ev fe~Ea bilft 'y.

It becomes a final agency action that is 10 no longer subject to review.

11 The question raised here is, can the agency then entertain another application that is quite similar 12

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to the first one that it has finally denied.

13 14 COMMISSIONER AHEARNE:

I guess what I thought the issue was, absent new information, when is an agency 15 16 decision final.

17 HR. BICKWIT:

The courts have allowed agencies to adopt a flexible approach on when to consider a 18 decision final in circumstances such as these.

19 20 COMMISSIONER GILINSKY Is new information an important element here, or is it an essential element?

21 22 MR. BICKWIT:

No.

Under the court cases, if the re is no new information whatever, the agency can 23 nonetheless en tertain the a pplica tion again.

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24 25 The doctrine is different when it applies to

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j udicial proceedings.

The agency has the flexibility to 2

apply the doctrine in this instance.

I am simply 3

advising that the agency needn 't do that.

4 COMMISSIONER AHEARNE:

I guess I would be 5

surprised had you come out differently, I am not sa ying 6

OGC, it is just tha t your conclusion seems logical.

7 Although I am sure I can say some interesting words, 8

which I am quite instructed, about the idea of 9

revisiting an-issue.

I 10 COMMISSION ER GIIINSKY The shoe being on the 11 other foot.

12 MR. BICKWIT:

The second basic question 13 CHAIRMAN PALLADINO:

I should point out that 14 one of the Commissioners voted on the basis that it 15 could be~ revisited.

16 MR. BICKWIT:

Tha t is right.

I have advised 17 throughout this saga that the agency could revisit it 18 COMMISSIONER 1HEARNE:

I understa nd.

19 MR..BICKWITs even if they failed to 20 reconsider the first time.

21 COM MISSIO N ER AREARNE:

Certainly.

22.

MR. BICKWIT:

The second basic issue is 23 whether an adjudicatory hearing,is required in this

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24 instance.

The Commission faced this issue th e la st time 25 it considered it.

The argument, however, was not made

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that th e sta tutes, the Atomic Energy Act and NEPA, 2

together require in adjudicatory hearing.

In the last 3

round, the argument was made that in spite of the fact 4

tha t there is no statutory compulsion, Commission 5

practice compelled a'n adjudicatory hearing on facts such 6

as these.

7 COMMISSIONER AHEARNEs You says that,it 8

shifted noe to tha t it is a requirement, that is the 9

• argu meh t.'

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10 ER. BICKWITs The argument has been added to.

11 The original argument stands, and it has been added to 12 with the assertion that the Atomic Energy and NEPA.

13 combined compel an adjudicatory hearing in an instance ~

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14 such as this.

I do not accept tha t, and I did not the 15 last tim e, even though the argument was not made.

I 16 would have made it, had'I believed it.

17 The reason that it has some facial appeal is 18 that there is' an adjudicatory hearing required for a 19 construction permit and for aspects of the construction 20 permit under the Atomic Energy Act. 'There is no 21 requirement to get a construction permit under the 22 Atomic Energy Act before proceeding with the activities 23 that the Applicant would want to proceed with at this

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24 time.

25 The argument is made that NEPA, nonetheless,

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requires a hearing in this instance.

We simply do not 2

read NEPA that way.

NEPA requires a hearing only where r

3 there is a proposed action and the normal agency review 4

process on that proposed action requires a hearing.

In 5

this instance, the normal agency review process is the 6

exemption process under 50.12 ohtheCommission's 7

regulations, and there is no hearing requirement.

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8 So we do not believe that putting those two 9

s ta tu te's

o g et he'r creates the persuasive argument that a

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t 10 hearing is required.

I think, essentially, the view of 11 this office is the proposition that NEPA does not change 12 the Atomic Energy Act.

NEPA is an additional 13 requirement upon the Commission.

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14 The Atomic Energy Act, before NEPA, did not 15 require that a construction permit or even a partial 16 construction permit, such as an LW A, be granted in order 17 for these kinds of site clearing activities to be 18 initiated.

The passage of NEPA does not change the i

19 Atomic Energy Act in that regard.

Therefore, the Act as 20 originally interpreted remains as we in terp ret it, and 21 there is no hearing requirement under the Atomic Energy 22 Act.

23 Let me sake one furthe;r point.

The argument 24 is made by the petition that this is a license within 25 the mesning of the Administrative Procedure Act, and

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that the Atomic Energy Act says that in any proceeding 2

under this Act for the granting of a license, there 3

shall be a hearing.

Whereas there has been some

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difference of opinion, many have interpreted that 5

particular sentence I have just quoted to mean an 6

adjudicatory hearing.

7 First of all, I do not read that sentence of 8

the Act as requiring an adjudicatory hearing.

Secondly, 9

even if" I"did," the requirement for a hearing on the 10 granting of a license is a license within the meaning of 11 the Atomic Energy Act.

It says, "in any proceeding 12 under this Act for the granting of a license, there 13 shall be a he,aring," let's assume that it is an 14 adjudicatory hearing, as I said before, what_is-T-~

15 happening in this exemption request is not a proceeding 18 for the granting of a license under the Atomic Energy Act.'

17 18 CHAIRMAN PALLADINO:

I would still propose 19 that we adopt the order as modified with this paragraph, 20 but let's not make a commitment with regard' to this 21 motion and request, and that as part of the order we put 22 out the schedule without the X-pluses, just the dates.

23 The change being that the Commission Order and Request

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24 for comments would be issued today, rather than 25 yesterday, and that it would be targeted for a

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ALDERSoN REPORTING COMPANY. INC.

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Commission discussion and voting on August 5.

2 COEMISSIONER EC3ERTS:

Do we all support 3

that.

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4 CHA.sHAN PALLADINO:

I certainly would, I 5

proposed it.

6 COMMISSIONER ASSElSTINE:

With respect to th e 7

schedule, I don't have objections to that proposed 8

schedule.

But, as you and I had discussed briefly 9

before~,'I thinf we ought to make sure that we have a 10 schedule that everybody feels is acceptable f rom his 11 standpoint.

12 John, I know you have he.d a slightly revised 13 schedule.- I just want to make sure.

I think everybody

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14 ought to be comfortable with the schedule we have.

15 COMMISSION.ER AHEARNE:

My suggestion in the 1a revision was because the original draft schedule had 1h events happening so many days af ter receipt of the DOE 18 application.

Since, at least I did not get the second 19 half of the DOE applications until Tuesday, and the 20 dates X plus seven, etc., didn't track.

l 21 I noticed the schedule here is Commission 22. Order and. Request for comment, issues include Commission 23 questions, if any, I do have thgee or four questions

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24 that have come to me in reading through those.

I 25 noticed in reading the thing that just came on Tuesday, l

ALDERSoN REPCRTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. O.C120024 (202) 554 2345

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the Applicant's memorandum in support of request to 2

conduct site preparation activities, they made reference 3

in this request to the Environmental Impact Statenent 4

Supplement, which I then had to request and just got.

5 I have attempted to skim that last night, and I think I only have one other question on the basis of 6

7 that.

But I would say that the best I can do is Monday 8

morning, getting those questions out.

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~~~ CHAIRMAN PALLADINO:

We could also have the 10 questions go out later.

11 COMMISSIONER ASSELSTINE:

We have to make sure 12 tha t we do provide a reasonable opportunity for people 13 to review the questions and be prepared to address them

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14 in their comments.

That is the important thing.

15 CHAIRMAN PALLADINO:

Our problem is that we 16 have such a small window in August in which we seem to 17 get all the Commissioners together.

I was trying to get l

18 the time-clock started, so that people can start to get 19. their commen ts in.

20 Even putting Jc out today, the 9th, it would 21 be a 13-day comment period.

If we put it out Monday, it 22 would be 1.0-da y commen t period, if we wanted the i

23 comments due by the 22nd.

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24 COMMISSIONER AHEARNE:

It is possible to, shift 25 toward the end of' August, as opposed to the beginning of

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August.

2 CHAIRMAN PALLADINO:

Except that then we start 3

running into other problems on whether all the 4

Commissioners would be here.

COMMISSIONEiR AHEARNE:

At the end of August?

5 6

I thought we were all here at the end of August.

7 COMMISSIONER ROBERIS:

I am not.

8 COMMISSIONER AHEARNE:

At the end ?

9

" COMMISSIONER ROBERTS:

I am going to your 10 friend's course.

11 COMMISSIONER AHEARNE:

When do you get back?

12 COMMISSIONER ROBERTS:

The 9th.

13 COMMISSIONER AHEARNE Then it is the

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14 beginning of September.

15 CHAIRMAN PALLADINO:

I think we ought to try te to move this one way or the other.

17 COMMISSIONER AHEARNE:

I would expect my 18 questions, which are obviously addressed to DOE, it may 19 or may not take them very long to answer them.

They 20 shouldn't.

3 21 CHAIRHAN PALLADINO:

I would suggest that we 22 let the order go out on the 9th.

Then, any Commission 23 questions can go out Monday.

It, leaves the people who 24 are going to comment on the basic petition time to 25 comment, without curtailing, and still give you time to Ai.DERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 " ~

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get your questions out.

2 COMMISSIONER AHEARNE:

As long as you are 3

villig to give the people a chance to answer the 4

questions.

5 OHAIRMAN PALLADINO:

If they don 't answer the 6

questions, we don't proceed down the schedule.

7 COMMISSIONER AHEARNE:

It is all righ,t with 8

m e.

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~~ " COMMISSIONER GILINSKY:

Where does that leave 10 you?

11 CHAIRMAN PALLADINO:

It leaves me, I believe 12 Incidentally, when I put this X and X-plus-10, that 13 was gratuitous information to tell yqu how many days "had

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14 ensued.

It was not a requirement that that many days

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15 ensue.

16 COMMISSIONER ASSELSTINE:

So what you are 17 proposing is to issue the crder today, July 9th, then 18 the questions July 12th.

Then the comments due 10 days l

gg after'that, which would be the 22nd.

20 CHAIRMAN PALLADINO:

We would add the step of 21 July 12th, Commission questions issued.

22 COMMISSIONER GILINSKY:

Ten working days.

23 COMMISSIONER ASSELSTINE:

It is ten calendar

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24 days.

25 CHAIRMAN PALLADINO:

The Commission order and

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1 request for comments on that order still would have 13 2

days., The period for answering the questions would be 3

reduced to ten days.

4 COE.tISSIONER ASSELSTINE:

Yes.-

5 CH AIRM'AN P ALLADINO:

OPE-0GE analysis and 6

comments on the 28th, o~ral presentation on the 29th, and 7

Commission discussion and vote on the 5th.

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8 COMMISSIONER AHEARNE:

With the understanding 9

tha't 'lf the ' schedule gets affected by either Len's

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10 analysis which is going to be coming in with r,espect to 11 the petition, and if we were to modify, if that were to 12 be persuasive to the majority of the Commission, --

13 CHAIRMAN PALLADINO:

It would change this 14 order.

15 CONEISSIONER ASSELSTINE:

In fact, either way, 16 if we reacted favorably to either part of that petition, 17 then this schedule would no longer have any effect.

18 COMMISSIONER AHEARNE:

If the Applicant or 19 commenters, the Applicant primarily, has difficulty in 20 addressing the questions, the schedule may also have to 21 be changed.

22 COMMISSIONER ASSELSTINE:

Tha t is right.

23 CHAIRMAN PALLADINO:

If he doesn't get the

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24 questions in by the 22nd, the way I would interpret 25 this, we can't meet the schedule.

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COMMISSIONER AHEARNE:

I assume that either no 2

one else has any questions, or those questions will be 3

available on Monday.

4 CHAIRMAN PALLADINO:

That is correct.

5 COMMISSIONER AHEARNE:

I guess all of you read 8

a lot f aster than I do, then.

l 7

(General laughter.)

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8 COMMISSIONER ASSELSTINE:

Or slower.

9

~~' CHAIRNAN PALLADINO:

How do you come down, 10 Jin?

11 COMMISSIONER ASSELSTINE:

I am prepared to 12 agree to that.

13 The only other question in my mind is, do Ve

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14 vant to decide now how to deal with the motion for I

15 summary denial.

That is, do we deal with that at our 18 pace after today, after ve receiv,e Len 's ad vice, or do

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17 ve want to make tha t a part of what we are considering 18 is pa rt of this process.

19 CHAIRMAN PALLADINO:

I will make a 20 suggestion.

I think we ought to deal with' the motion 21 and request as soon as OGC has the opinion, and the 22 Commission.is ready to vote.

In other words, I think we 23 ought to try to do it possibly next week, just using

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24 that as a for example.

25 COMMISSIONER AHEARNE:

I think we ought to l

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recognize that we are basically -- I am willing to do it 2

because, in the absence of seeing what Len is going to 3

say, I come out there anyway.

We are basically agreeing 4

with Len on his first point.

5 Ihe second point, the form of the hearing, 6

adjudicatory versus not, we can modify at a later 7

stage.

8 COMMISSIONER ASSELSTINE:

That is true.

l 9

' COMMI'SSIONER AHEARNE:

But we have to 10 basically f eel that he is going to prevail in his 11 argument on the firs t part, or else we wouldn't do 12 this.

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13 CHAIPMAN PALLADINO:

Yes.

14 MR. BICKWIT:

But if you ultimately decide 15 that that ad vice is ill-advised.

16 COMMISSIONER AHEARNE:

Sure.

17 MB. BICKWIT You can simply stop the 1

18 proceeding.

l 19 COMMISSIONER AHEARNE:

Of course.

But if we 20 felt that it was more likely that the petitioner would 21 prevail on that, then we ought not to go ahead.

I don 't 22. think they will prevail on that, so I am illing to go 23 ahead.

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CHAIBMAN PALLADINO:

Vic.

24 25 COMMISSIONER GILINSKY:

If the majority wants

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to meet on August 5th, I will be here on August Sth.

2 CHAIRMAN PALLADINO Do I gather we have five 3

votes to proceed with issuing the order with this 4

paragraph in it, with the schedule modified to show July 5

12 for Commission que'stions, and this provides for a 6

13-day comment period or 14-day comment period, with the 7

understanding that when we act on the NRDC/ Sierra Club 8

petition and request, if it requires a changu in the 9

schedule,'a change vill be made.

10 COMMISSIONER AHEARNE:

I would strike the 11 first line.

12 CHAIRMAN PALLADINO:

It is not absolutely essential that we have that.

'13

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14 I understand there are five votes to the issue 15 the order, is that correct?

l 16 COMMISSIONER ASSELSTINE:

Yes.

17 CHAIRMAN PALLADINO:

Is there anything more 18 that we need to do on this?

19 (No response.)

20 CHAIRMAN PALLADINO:

Thank you. 'We vill stand 21 adjourned.

22 (Whereupon, at 4:20 p.m.,

the Commission 23 adjourned.)

24,

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l ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON,0.C. 20024 (202) 554 2345

NUCLEAR REGULATORY COMMISSION This is to certify that the attached proceedings before. the

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e COMMISSION MEETING in the ::2atter of: PUBLIC MEETING - Briefing on Clinch River Breeder Reactor Date of Freceeding:

July 9, 1982 Decket Number:

Place cf Proceed.ing:

Washington, D.

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were held as herein appears;; and that this is the original transcript thereof for the file of the Cec:missicc,

Patricia A. Minson Official Reporter (Typed) 6K,/

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