ML20137Y798

Transcript of 851205 Affirmation/Discussion & Vote in Washington,Dc.Pp 1-13

ML20137Y798
Person / Time
Issue date:	12/05/1985
From:	NRC COMMISSION (OCM)
To:
References
REF-10CFR9.7 NUDOCS 8512110150
Download: ML20137Y798 (17)

Text

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O C RAL 4 UNITED STATES OF AMERICA VM b '

NUCLEAR REGULATORY COMMISSION .;,[;

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COMMISSION MEETING y' Affirmation / Discussion and Vote (Public Meeting)

Docket No.

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Location: Washington, D. C.

Pages: 1 - 13 Date: Wednesday, December 5, 1985 s

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ANN RILEY & ASSOCIATES .

Court Reporters '

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1625 I St., N.W.

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5 6 This is an unofficial transcript of a meeting of the 7 United States Nuclear Regulatory Commission held on s 12/05/85 . In the Commission's office at 1717 H Street, 9 N.W., Washington, D.C. The meeting was open to public 10 attendance and observation. This transcript has not been 11 reviewed, corrected, or edited, and it may contain 12 inaccuracies.

la The transcript is intended solely for general 14 informational purposes. As provided by 10 CFR 9.103, it is 15- not part of the formal or informal record of decision of the 16 matters discussed. Expressions of epinion in this transcript 17 do not necessarily reflect final determination or beliefs. No 18 pleading or other paper may be filed with the Commission in 19 any proceeding as the result of or addressed to any statement 20 or argument contained herein, except as the Commission may 21 authorire.

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,1 UNITED STATES OF AMERICA 2~ NUCLEAR REGULATORY COMMISSION 3

^4 AFFIRMATION / DISCUSSION AND VOTE 5

6 [PUBLIC MEETING]

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8 Nuclear Regulatory Commission 9 Room 1130 10 1717 H Street, Northwest 11 Washington, D.C.

12 13 Wednesday, December.4, 1985

'14 15 The Commission met in open session, pursuant to 16 notice, at 2:16 p.m., the Honorable NUNZIO J. PALLADINO, .

17 Chairman of the Commission, presiding.

18 COMMISSIONERS PRESENT:

19 NUNZIO J. PALLADINO, Chairman of the Commission -

20 JAMES K. ASSELSTINE, Member of the Commission 21 FREDERICK M. BERNTHAL, Member of the Commission 1

22 ELANDO W. ZECH, JR., Member of the Commission 23 l 24 l i

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1 STAFF.AND PRESENTERS SEATED AT THE COMMISSION TABLE:

2 P. CRANE-3 A. BATES 4 D. RATHBUN

'5 AUDIENCE SPEAKERS:

.6" M. CUTCHIN 7

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11 12-13 14-15 16 17 18 19 20 21 22 23 24 25-

3 1- PROCEEDINGS

'f 2 CHAIRMAN PALLADINO: Good afternoon, ladies and 3 -gentlemen. This is an affirmation / discussion session. . We 4 have one item on the agenda, and I will ask An.y Bates to lead 5 us through the. item.

6 MR. BATES: Okay. Mr. Chairman, before we ao 7 through this we need to vote to hold this on less than one

-8 week's notice. It's the affirmation of SECY 85-332(a), the

. 9 revised Braidwood order.

10 (Chorus of ayes.]

11- MR. BATES: In this action the Commission is beinq l

l asked to approve an order that requires the applicant and-the

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1:2 13 Staff to provide answers to Comm1ssion questions prior to l-14 consideration by the Commission of the applicant's request 15 that the Commission grant an exemption from 10 CFR 16 2.786(b)(1). And two, take review of ALAB 817 in which the l

17 appeal board denied the applicant's request that it review 18 whether the licensing board committed procedural errors in the 19 conduct of_the Braidwood operating-license' proceedings.

20' Mr. Chairman, you and Commissioners Roberts, t.

I 21 Bernthal and Zech have approved the order. Commissioners 22 Roberts, Bernthal-and Zech have also agreed to modifications lJ , 23 to the order that were suggested by Commissioner Bernthal and 24 Commissioner Roberts.

4t5 Mr.-Chairman, you approved those modifications in j

4 1 part.- You disapproved them in part. I understand you may rm 2 have a couple of comments you want to say about those.

3 Commissioner Asselstine disapproved the entire order. I 4 understand Commissioner Roberts will also have additional 5 views to be attached to the order.

6 COMMISSIONER ASSELSTINE: I should add that I'll 7 have some brief. additional views as well.

8 COMMISSIONER ZECH: I may have.

9 CHAIRMAN PALLADINO: Well, I have additional views, 10 and I'd like to express them now in the valiant hope that 11 maybe I might get some people to agree with me.

12 While I agree with the Commission decision to pose 13 questions to the parties to determine whether it would be 14 productive to take' review of ALAB 817, I do not agree with all 15 of the statements in the Commission order. Although a 16 violation by the licensing board may be apparent from the 17 applicant's request for a review, it is premature for the 18 Commission to reach a conclusion on this point before it has 19 decided whether or not to take review.

20 Further, the Commission will have an opportunity to 21 comment on this point later, either when it issues its review 22 decision, or declines to take review. In the meantime, it 23 appears to me that the Commission order in this case can 24 convey the Commission's concern without prematurely ruling en 25 the issue for later review.

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, 5 1 And I had some suggested changes that I gather has 2 not gotten the support of the othet people who approve going 3 forward with this order. But I do think it's a very important 4 point, and I do believe that we're prejudging in the order a 5 matter that we're going to have to decide on later.

6 And I had a couple of ways to fix it. One was in an 7 insert on the first page where it says, "Why, given the 8 violation of" -- and I'd put the word alleged violation. I o 9 think that at least can fix that up.

10 In the last paragraph where it says, "In the present 11 case the licensing board clearly exceeded its authority" -- 1 12 would say, in the present case, the applicant with NRC Staff 13 support argues forcefully that the licensing board clearly 14 exceeded its authority. And that puts some distance _ bet'Ieen 15 us and the decision that we're going to have to make.

16 And I do think they would be very valuable additions 17 or changes to make in the order. But I gather in walking the 18 halls, I didn't get any of the other three to go along with 19 me. Maybe you still hold to your positions.

20 COMMISSIONER ZECH: I hold to my position. I do 21 think it's a violation and I think we should say so right 1 I

22 now. I don't think we should say --

23 CHAIRMAN PALLADINO: Well, then why are we taking 24 review? If we've made a judgment -- a review is something you 25 do --

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.1 COMMISSIONER 2RCH: Not qn this pa'rti.culai.' issue, I

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_j-2 don't think. That's my point. .

i 3 COMMISSIONER BERNTHAL: I don't -- and my t ,1 4 understanding is that the review was to determine whether the

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5 Commission now needs to take some particular or special 6' action. We had legal advice from coun.Sel on the i very s i

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7 beginning on this, that the question of whether there was a 8 mistake made with respect to the Commission's rules, that was '

9 not in dispute. '

4 10, CHAIRMAN PALLADINO: But we're making -- we're,now 11 violating our owidtules.by, going ahead and making a decision '

when we're asking questions. O 12-

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COMMISS1,GNER BERNTHAL: No, we haven't made a s v 14 decision on the substance., We've only said that there was an y ~, .

v 15 error committed, in our judgment, with respect to Commission

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17 ' COMMISSIONER ZECH: at's how I feel.

s 18 \ COMMISSIONER BERNT!bL: That's what general counsel 19 says. \' s _ i Qs '. - --

I feel the same way.

20 COMMISSIONER' Z ECH:

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COMMI SIONER BERNTHAL: Is that right, Peter?

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22 s MR.iQRANE:\ Mell,.at the outset, I'd like to point

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23 out,thathincethip,isan.;adjudicatoryissueyoudohavethe

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24 option of(discussing this in a closed meeting if you'd prefer.

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7 1 COMMISSIONER BERNTHAL: Got any reporters here?

2 COMMISSIONER ASSELSTINE: Having not exercised that 3 . option, answer the question.

4 CHAIRMAN PALLADINO: Having already put our foot 5 forward --

6 COMMISSIONER BERNTHAL: Frankly, it looks closed to 7 me already. I don't see any outsiders here except maybe --

8 COMMISSIONER ZECH: I believe there is.

9 CUAIRMAN PALLADINO: Well, it doesn't --

10 COMMISSIONER ASSELSTINE: There are. There's also a 11 transcript.

12 CHAIRMAN PALLADINO: Well, unless the Commission 13 objects, I'm going to suggest you make your point.

14 MR. CRANE: I think, Commissioner, that you would 15 not find agreement of all parties to the fact that there was 16 any violation of Commission regulations by the licensina 17 . board. And I think that that being so, it is certainly the 18 safer course to leave a little wiqqle room.

19 One can speak of apparent violations, or on its face 20 it seems to be, but I think to declare in advance that a 21 violation has taken place could well give rise to a claim of 22 prejudgment. I think that's something that the parties would 23 be certain to want to address in any filings the Commission  ;

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I 24 .might entertain.

25 COMMISSIONER BERNTHAL: It sounds like there also is

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84 1 -not unanimity within Office o( General Counsel because what i

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you just said, Peter , -iS[.tiot consistent with 'what was written + '

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4 MR.. CRANE: I think it is consis, tent with what was 5 written,.and since I did a lot of the w Itikgofit, I feel 3

6 fairly secure on that po' int. -I think there is a distinction, a

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s 7 and it's the distinction -- one can make some factual .t -. .

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9 One can conclude on the basis.of what one saw on th'e t

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10 television that Jack Ruby shot Lee Harvey Oswald. And one can 11 say in informal terms that there's not a doubt in the world ; d 12 thNt it happened. But that's somewhat different from ..

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1. announcing in one's adjudicatory role that a particular crime

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COMMISSIONER BERNTHAL: So it 'doesn't matter that I g

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3 16 won't -- without readin'g in detail, it doesn't' matter that we 17 have at one point been advised in the following words, "There

> 1 t 18 is no question that" -- leave out\ t!he intervening words --

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L 19' " violated thess Commission'.s rules." But we>shouldn't say i 20 that, that's what you're telling me. ,

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21 MR. CRANE: Quite right. '

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! 22 COMMISSIONER BERNTHAL: LWell, maybe I don't

. understand these things.p It wouldn't s,urprise me a bit if I 23 p

24 don't. ,

25 MR. CRANE:- Well, if for example your enforcement I ,

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,1 staff says to you, we think you ought to institute an

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2 enforcement action against X. We caught him red-handed, 3 there's not a doubt in the world. That still doesn't mean 4 that in issuing the notice you would say, so-and-so was 5 caught red-handed and there's not a doubt in the world that 6 he's guilty.

7 There is a distinction between what we advise you

,, 8 informally and the kind of orders we write for you to issue.

I 9' COMMISSIONER BERNTHAL: Well, I'll tell you what I'm 10 prepared to do. If you want to do this, Joe -- I really don't l

11 want to change significantly what the three of us have agreed i l

l 12 to at least, if not the four -- that where the word " clearly" 13 appears you provide the proverbial wiggle room. I'm willing 14- to substitute apparently.

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15 CHAIRMAN PALLADINO: Where is that? l I

16 COMMISSIONER BERNTRAL: And if that's sufficient, if I

17 my colleagues will agree with that, then I'll do that. But I 18 won't go beyond that.

19 CHAIRMAN PALLADINO: Where are you -- -

20 COMMISSIONER BERNTHAL: It seems like a small point.

21 CHAIRMAN PALLADINO: No, I think it's a very 22 important point.

23 COMMISSIONER BERNTHAL: Well, in the order, instead 24 of.saying, "In the present case the licensing board clearly 25 exceeded its authority," I'm prepared to say, the licensing

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. 10 1 board'apparently exceeded its authority.

2 CHAIRMAN PALLADINO: Well, why not -- well, all 3 right.

4 COMMISSIONER BERNTHAL: It seems to me that's a 5 little wiggle room.

6 CHAIRMAN PALLADINO: That's better than not putting 7 it. But it doesn't solve the whole problem.

8 Well, how about the one where you talk about -- what 9 is that word, why? Well, let me -- that would help me in 10 part. But then on the previous page the insert that says, .

11 "Why, given the violation" -- why not put, the alleged 12 violation?

13 COMMISSIONER BERNTHAL: Well, we're the alleger in 14 this case.

15 CHAIRMAN PALLADINO: No, we're not.

16 COMMISSIONER BERNTHAL: Well, I'm certainly one of 17 the allegers.

18 COMMISSIONER ZECH: Well, why don't we change that 19 word to apparently too? Then we got two apparentlys.

20 CHAIRMAN PALLADINO: Well, given the apparent 21 violation?

22 COMMISSIONER BERNTHAL: Okay, that sounds all right.

23' CHAIRMAN PALLADINO: That fixes it up and makes it 24 much better.

25 COMMISSIONER ZECH: I don't think it makes it much

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l better, but I'll agree to do it.

2 [ Laughter.]

3 COMMISSIONER BERNTHAL: All right, you got two.

4 CHAIRMAN PALLADINO: Let me satisfied that it fixes 5 it up.

6 COMMISSIONER ZECH: All right.

7 CHAIRMAN PALLADINO: As long as -- when I got a 8 victory, why should I debate when I got the victory?

. 9 COMMISSIONER ZECH: That's right, that's what I say.

10 CHAIRMAN PALLADINO: All right. Okay, now if I 11 understand it correctly, we're putting in the insert on the 12 first page, where it says, "Why, given the violation" -- why, 13 given the apparent violation. And then where it says, in the 14 last paragraph, in the present case the licensing board 15 apparently exceeded its authority.

16 COMMISSIONER ZECH: Fine.

-17 CHAIRMAN PALLADINO: Okay, I can live with that 18 better.

19 COMMISSIONER BERNTHAL: Sounds fair to me.

20 CHAIRMAN PALLADINO: I'm ready to vote.

21 COMMISSIONER BERNTHAL: Is the general counsel 22 blinking or --

23 MR. CRANE: General counsel is very happy.

24 MR. BATES: Mr. Chairman, with those two changes to 25 - the words apparently in those two locations, my understanding I

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,1 would be that the majority of the Commission, yourself,

. l 2 Commissioner Bernthal'and Commissioner Zech has approved the l

~3 order. Commissioner Asselstine has disapproved the order.

4 COMMISSIONER ASSELSTINE: That's correct.

5 CHAIRMAN PALLADINO: May I have your affirmation?

6 (Chorus of ayes.}

7 CHAIRMAN PALLADINO: We haven't cleared this with 8 Rbberts, so we don't know whether he buys those changes or 9 not.

10 MR. CUTCHIN: He would not buy them, Mr. Chairman.

11 1 But his additional views make crystal clear what his position 12 is.

13 CHAIRMAN PALLADINO: Okay, all right.

14 COMMISSIONER ASSELSTINE: I have my separate views, 15 short and to the point.

16 CHAIRMAN PALLADINO: Well, with those changes I 17 don't need my separate views.

18 s COMMISSIONER 3ECH: I won't have any separate views 19 either.

20 CHAIRMAN PALLADINO: Okay, fine.

21 MR. BATES: We'll have separate views only from 22 Commissioner Roberts and Commissioner Asselstine.

23 CHAIRMAN PALLADINO: Is there anything more to come 24 before us at this session?

25 MR. BATES: I don't believe so.

- 13 1 CHAIRMAN PALLADINO: -Okay, thank you very much.

2 we'll stand adjourned.

3 [Whereupon, at 2:28 p.m., the affirmation / discussion

-4' was adjourned.]

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1 CERTIFICATE OF OFFICIAL REPORTER 2

3 4

5 This is to certify that the attached proceedings 6 before the United States Nuclear Regulatory Commission in the 7 matter of- COMMISSION MEETING 8

9 Name of Proceeding: Affirmation / Discussion and Vote to (Public Meeting) 11 Docket No.

12 Place: Washington, D. C.

13 Date: Wednesday, December 5, 1985 14 15 were held as herein appears and that this is the original 16 transcript thereof for the file of the United States Nuclear 17 Regulatory Commission.

13 (Signature) ggk (TypedNameofReporter,)s(/PanelaBriggls-w 20 21 22 23 Ann Riley & Associates, Ltd.

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