ML20147C711
| ML20147C711 | |
| Person / Time | |
|---|---|
| Issue date: | 08/23/1977 |
| From: | Gilinsky V, Hendrie J, Kennedy R NRC COMMISSION (OCM) |
| To: | |
| Shared Package | |
| ML20147C694 | List: |
| References | |
| REF-10CFR9.7 NUDOCS 7812180375 | |
| Download: ML20147C711 (98) | |
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NUCLEAR REGULATORY COMMISSION 2
3 COMMISSION MEETING 4
5 6
.7 Licensing. Reform 8
9 10 11 12 13 14 15 16 1717 H S tre e t N.W.
3:15 p.m.
17 Room 1130 August 23, 1977 Washington, D. C.
18 19 20 The initials appearing in the lefthand margin, i.e.,
- RBM, 21 indicating corrections are those of Robert McOsker, Office of the 27 Secretary.
Reviewed 11/29/78 23
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24 444 N. Cagnet Stret (Seite 400)
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Commission members present were:
2 JOSEPH M. HENDRIE, Chairman 3
VICTOR GILINSKY, Commissioner 4
RICHARD T. KENNEDY, Commissioner.
5 PETER A. BRADFORD, Commissioner.
6 Also present was:
1 7
Samuel J. Chilk, Secretary.
8
Participants:
Kenneth'Pedersfn 9
10 Lee Gossick Il Carlton Kammerer 12 William J. Dircks 13 Howard K.
Shapar I4 James Kelly 15 Steven Ostrach 16 17 18 19 20 21 22 23 24 Ace-?edsrol Reporters, toe.
25 4
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CRAIRMAN HENDRIE: Gentlemen,slet'stsee;4Letius get 3
started.
4 The aim this afternoon is to discuss some of the i
5 licensing legislation, in particular to understand some of 6
the differences between Draft 1 and Draft 2 and to decide the 7
near-term course of our review of same.
8 Let's see.
Jim went off to a meeting the other 9
day, probably means we're contaminated and now responsible 10 for the legislation (inaudible).
II MR. KELLY:
I made an effort to avoid that 12 (inaudible.)
13 CHAIRMAN HENDRIE: But why don't -- do you want Id to outline for us what the major differences, and then I'd 15 like to hear Howard's comment also on the Draft 2.'
16 MR. KELLY:
I think the major differences with 17 regard to the three major points of controversy we discussed 18 previously, whether we would keep on the record the I9 adjudication of licenses.
Whether the DOE would have this 20 role of coordinator of the process, and whether there would be 2I delegation of NEPA responsibility for putting NEPA power 22 determinations in place.
23 In the way I read the bill, I haven't studied it 24 carefully, but I have read it over a couple of times.
Our Ace Fedsrol Reporters, Inc.
25 on-the-record proceedings are now back in.
4 bw4 CRAIRMAN HENDRIE:
They're back in for early si'tes.
j MR. KELLY:
For early sites and for --
2 3
CHAIRMAN HENDRIE:
Standard review plans.
4 MR. KELLY:
No.
Standard review plans, as I cf 7, kk 5 understand this, would be handled in a rulles.
They're 'ack 1
6 in f r early site.
1 CHAIRMAN HENDRIE:
Is that --
7 Mr. SHAPAR:
Not exactly.
They are two ways you 8
9
' can appirve a standardized design.
One is through manufacturing 10 license, which would be adjudicatory.
And the other would 11 be rulemaking, and there is no special requirement for rule-making, which means that the approval of the standardized 12 design by rulemaking can be done by Federal Register Notice 13 in time.
ja MR. KELLY:
Or whatever hybrid we wanted to 15 create.
16 11R. SIUPAR:
Whataver special we wanted to use 37 1-M jg COMMISSIONER GILINSKY:
Let me understand. So j9 20 the equivalent of the safety review would be followed by a I[f rulemaking 21 MR. SHAPAR:
Well, you could approve a standardized 22 design by a rulemaking, the way you can use a rule to approve 23 24 anything, generically, now.
But if you approve the standardized Ace fedsrol Reporters, Inc.
design by a manufacturing license, which is the opposite 25
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I situation, then there would be an adjudicatory hearing.
The 2
site would be done by an adjudicatory hearing.
3 COMMISSIONER GILINSKY:
Now, what happens if the 4
standard plant is then coupled with the site --
5 MR. SHAPAR:
Then it would be essentially the same 6
as the NRC bill which would mean a limited opportunity for 7
hearing, based on whether or not specir.] circumstances dictatec 8
that the -- or indicated that the purpose for which the 9
standardized approval was given, was not apposite to this 10 particular case. But under those special circumstances there
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would be an adjudicatory type proceeding /.
j' 12 CHAIRMAN HENDRIE:
Now, wait a minute.
I got j
13 lost there somewheie.
14 With sn early site, preapproved off a full hearing, 15 and a design with a preliminary design approval for the nuclear steam supply system, what is the hearing -- now, 17 what is the hearing requirement?
18 MR. SHAPAR:
Well, you used the word " preliminary.
19 design approval," I think in the context of our outstanding 20 rule, which calls for preliminary design approvals.
21 If we approved a prelimina: y design under the 22 bill, as I read it, in a very quick re ding, it could be 23 done by either rulemaking or manufacturint license.
24 Then, again, Commissioner Gilinsky's question, Ace Fedtrol Reporters, Inc.
25 suppose you married a preapproved site with a preapproved
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6 J
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preliminary design, that would follow the general paradigm i
2 of. the NRC's legislation, and provide a limited opportunity I
3 for hearing.
That hearing will be adjudicatory type, but 4
the'only issue that would be up for grabs, whether or not 5
special circumstances indicated that the purpose of the 1
6 original design approval was really not -- didn't serve the 7
purpose for which it was granted.
8 That was the same limited issue that was present 9
in the NRC bill.
10 As I recall the NRC bill, though, you had some 11 flexibility, not to grant an adjudicatory hearing on that 12 limited issue.
13 As I read this bill, the hearing would have to 14 be adjudicatory type.
15 COMMISSIONER GILINSKY:
hat would be the allowed issue $ I guess that's the kkhb k(bler)u.+b$k.
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17 MR. SRAPAR:
The allowed issue is the -- put 18 in layman's herms, would be the same issue in which you j
19 can attack on any rule now.
20 The purpose on which you put out the rule really 21 wasn't relevant, or didn't get the circumstances of this 22 particular case.
23 COMMISSIONER GILINSKY:
So yo u couldn't raise 24 any questions about the' safety of the reactor (inaudible)
Ace 4sdsrol Reporters, Inc.
25 that has been covered?
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I MR. SHAPAR: That's right.. That's right.
You could 2
not.
3 COMMISSIONER KENNEDY: That determination would 4
originally have been made in rulemaking.
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5 MR. SHAPAR: That's correct.
6 COMMISSIONER GILINSKY:
I see. So you're still 7
basically spproving. the safety of the design without an adjudicatory 8
hearing, unless that rulemaking is an adjudicatory --
9 MR. SHAPAR:
Unless the Commission uses discretion 10 in connection with the rule to grant a hearing, which it can 11 do, of course.
12 COMMISSIONER GILINSKY:
Okay.
13 MR. DIRCKS:
A couple of years ago,.
Howard, one 14 of those bill in '72
'73, there was something about a 15 significant new advance in technology --
16 MR. SHAPAR:
That's in here, too, in a different 17 context, but it is not relevant to this particular point.
18 MR. DIRCKS:
If someone came in and said that
((I9 standardized pla$s', but with a significant new advance in 20 technology --
21 MR. SHAPAR:
That is in connection with the
/
ff22 operating license age.
23 CHAIRMAN HENDRIE: What about so-called "significant 24 new safety issues"?
AceJedsrol Reporters, Inc.
25 MR. SHAPAR:
At the operating license stage --
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l CHAIRMAN HENDRIE:
No, at CP stage.
2 MR. SHAPAR:
At the CP stage, as I recall --
3 CHAIRMAN HENDRIE:
Nine years ago, we reviewed 4
,t thissiteandsaf$,"Okay, this is great for a plant no bigger b
5l than this b'I ^(j/g3ad 6 /
13."
And I come with a plant for which there i
is rule that's no bigger than this#8n/llNMl b
6 e in, and I say, good, and yLacumible)Jcg[ps9@)36@aA 7
6 says " Wait a minute,
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I'll put those together, 8
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you didn't consider angel dust and its ef fect on the pump 9
bearings."
Can you get in?
Can he get in, I.mean?)
10
- Q40&4 Cyr Well, what's the threshold sort of 11 thing?
l 12 MR. SHAPAR: Well, it would be the same standard 13 that I outlined before. He would have to fit it within the 14 rubric of saying that the purpose for which the rule was 15 approving the standardized design, simply didn't apply 16 rationally to the situation.
17 MR. KELLY:
If you look at page 14 of the bill, 18 it talks about the hearing things and speaks of significant audi p -)/c4d+LE
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///h new information discovered since the COMMISSIONER BRADFORD:
Basically, the same languagc 21 as is in Draft 1.
22 MR. KELLY:
I would say, for example, if you were 23 to have population pattern changes around the site of a 24 wami e, significant sort, you could come in and maybe point t --
3 with a dramatic enough change, you might trigger a hearing.
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4 1
COMMISSIONER KENNEDY: The rulemaking,does everyone 2
have a right of discovery?
3 MR. SHAPAR:
In rulemaking there 's no right of 4
discovery.
I think the section you're reading, Jim, refers 5
to a subsequent hearing.
6 MR. KELLY:
Yes, but that's what would be before 7
the house at the hearing, right?
8 MR. SHAPAR:
Yes, of course, there would have 9
been no hearing as such in the rulemaking proceeding, unless 10 the Commission, as a matter of discretion, wanted to grant 11 hM4 12 MR. KELLY:
I thought your question was, what j
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happens when you're going to marrisk a pre-approved site and
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14 a design, when somebody comes in and rays, "But I have new 15 information."
16 And this suggests to me that that new information, 17 if it's a sufficient showing of new information, you might 18 trigger a he ring and reope a site or environmental issue.
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f COMMISSIONER KENNEDY:
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flow wodld'the l,
20 individual ascertain whether - new safety information had 21 been developed or not, if he h'ad no right of discovery?
22 MR. SHAPAR: Well, to have a right of discovery, 23 he must be admitted as a party to the proceeding.
- Nobody, 24 Actf eduol Repodm, Inc.
eXCept parties, have rights of discovery.
25 l
However, beyond that I'd say he has got the t
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1 Freedom of Information Act. Beyond the Freedom of Information 2
Act, he can write a letter to the Commission.
Beyond that, i
3 of course,he's got the Public Document Room.
J 4
If - your real question is whether or not all of 5
these things would be effective enough to really inform him j
6 as to new safety issues, I guess I would have to say probably 7
yes, but I suppose you could argue about it.
8 COMMISSIONER hENNEDY. You would only say probably 9
yes, not assuredly yes.
10 MR. SHAPAR:
I could never say assuredly yes.
11 There may have been some informa. tion that's not reflected 12 in the document he reviews.
13 CHAIRMAN HENDRIE:
Okay. Early sites plus pre-14 approved standard designs are limited adjudicatory hearings.
15 MR. SHAPAR: Adjudicatory hearings, but on a limited i
16 issue, I think is probably a better way of putting it.
17 CHAIRMAN HENDRIE:
Right. And at the OL stage f)}i 18 MR. SHAPAR:
At the OL stage, then it cets 19 complicated, depending on whether or not you have a combined 20 construction permit and' operating license or not --
21 CHAIRMAN HENDRIE: Let's ignore that possibility.
22 MR. SHAPAR:
All right.
Okay.
You have an 23 opsortmdty for an adiudicatory hearing at the operating 24 license stage.
And there are the same general sort of re-Ace-Fedirol Reporters, Inc.
25 strictions that are on the NRC bill. The general intent, I
11 bwl1 think, of the language is to lilait the issues tv significant new inf rmation.
In other words, someone has to make a 2
3 prima facie showing that, as a result of the advances or 4
changes in the technology, or on the basis of violations of the licensee, some significant safety advantage can be obtcined 5
by having a hearing.
6 COMMISSIONER BRADFORD:
All right.
You mentioned 7
the NRC bill a couple of times. What is the history of that?
8 Have we had legislation previously?
9 MR. SHAPAR:
Yes, sir.
Really, there has been a 10 series of bills that followed the same general mode, going back j) 12 about three or four years, starting with the AEC.
COMMISSIONER BRADFORD: What has been their fate?
13 MR. SHAPAR:
Their fate has been not to get passed.
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15.pTh~5' last time around it was really on tenterhooks.
My 16 understanding was that the bill would have been passed, if one thing didn't happen, and that was that the Congress got j
)7 emmeshed in the big controversy about the enrichment facilties, 18 whether or not it would be privately funded or government-39 20 supported.
They simply could not get a quorum of the Committee to get the bill out, that everybody had agreed in 21 advance to get it out.
22 Now, that's not to say that had it reachtd the 23 Floor and gone to a vote that it necessarily wou".d have passed.
24 Aca Federal Repo,ters, Inc.
25 I can't answer that quest.on.
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CHAIRMAN HENDRIE:
Okay.
Hearings.
Next --
2 MR. KELLY: The next major change is the coordina-3 tion rule of DOE that has been dropped entirely.
And there 4
really isn't any counterpart provision to the prior versi6n with 5
DOE's coordinator, so you got the status quo, essentially.
6 You've got a memorandum of understanding with EPA and such 7
other arrangements that we can work out.
8 COMMISSIONER GILINSKY:
derstand there is A
9 some talk about writing an Executive Order to cover this.
And 10 it is not clear whether it would - y M P r E E E b Y-:, I nk we would not be covered with 4
12 this.
13 CHAIRMAN HENDRIE: Well, my understanding is that 14 they took it out of the bill and that all of the parties to 15 these meetings which go on over in Administraticn, they have 16 now shaken hands that they will all stand still for an 17 Executive Order that establishes over the President's signature 18 the requirements for coordination.
I've suggested to them 19 that they are to make clear from the beginning the feelings 20 of Congress that that is the intent, and what the nature of 21 that Executive Order might be, lest the Congress feel it is 22 ik
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sort of being led up the garden past.
/ {23 COMMISSIONER GILINSKY:
Does that include us 24 d notY Ace-Fedsrol Reporters, Inc.
25 CHAIRMAN HENDRIE:
I think it would include
13
' bwl3 us, but I think we can probably, if we want to go and say j
the degree to which we would like to a) either coordinate it 2
or decoordinate it or tell somebody else how to coordinate 3
i it, I think would control that.
4 MR. KELLY: Well, legally, you are in a very gray
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4 area here on the President's part etr order- (-indudible. ) b' "' ;
6 Because, you can't say on the one_ hand, he doesn't have any 7
authority in this area, he does have some.
On the other 8
hand he can't tell us how to decide a particular adjudication 9
r what rule to adopt.
And his views on GESMO, for example, 10 won't be binding on us.
jj But, you can get into a fancy lawyer's debate on 12 ar helcan go in telling us how to run the Agency.
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- COMMISSIONER KENNEDY: Well, didn't we have a legal ja opinion on this in the not-too-distant past, as to the reach 15 of Executive Orders insofar as the Commission --
16 MR. KELLY:
It's come up a couple of times --
)7 COMMISSIONEP KENNEDY:
I thought we had a 18 memorandum. Can somebody look and see?
I thought we did have j9 a memorandum on this subject matter in the relatively recent 20 past.
21 MR. PEDERSON:
Just recently it came up in a draft 22 of a memo that Jim's office prepared on the logging question.
23 And the question was raised, are we bound by an Executive 24
- 4. **cisrol Reporters, Inc.
Order?
I think there is a sort of checkered history here.
25
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..bw14 In some cases we claim, no, and in other places where it
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2 served our purpose, quite frankly, we proceeded that way.
3 For example, in the classification area --
COMMISSIONER KENNEDY:
All without precedent --
4 MR. PEDERSON:
-- all without precedent -- in 5
classification, we rely on Executive Order for our classifi-6 cation.
7 MR. SHAPAR:
I might say that I think it depends 8
on a couple of things.
Number one, it depends an awful lot 9
on the substantive area you are talking about.
Are you 10 talking about exports of foreign policy? Are you talking about 11 something in the domestic area, is one point to make.
12 COMMISSIONER KENNEDY:
Or something which is 13 essentially the statutory responsibility of the Agency itself.
ja MR. SHAPAR:
Yes.
Since this is the Bicentennial 15 16 year, I might point out that, you know, there is such a thing as the Executive Branch controlling your budget.
I think if j7 you really wanted to pursue the independence path, and thereihavc 18 W various.. bills thatrhave -been introduced that would free the 19 20 regulatory --
the independent regulatory commissiom of the control of the Executive Branch of their budget. There is also 21 22 one -- I throw these all out in the interests of completeness.
23 I might also point out that there is one independent regulatory agency which refuses to clear comments on legis-24 Ace Fedsrol Reporters, Inc.
lation with the Executive Branch, and I believe that 's the 25
bw15 15 b.
I ICC.
That is another option you have open to you.
2 The end line, I guess, of what I am saying is, 3
it is a hazy area.
It depends on whether you are talking about 4
budget.
It depends on whether you are talking foreign policy -
5 or domestic policy. And you are going to have to see the 6
Executive Order, before you reach a final conclusion.
go, 7 Beyond gQgk, what is the point we are talking 8
about?
The point is establishing a target date.
Now, suppose 9
the President issuus the Executive Order and says, "All 10 executive acenciew and independent regulatory agencies, I II have set the-following target da.te for you."
Silence from 12 the NRC, because he has no right to establish a target date.
13 I guess, you know, it is like objecting to --4mving 14 a court to strike testimony after it has been given.
15 The target date is out there in the public
.16 domain.
17 I don't know if I have made myself clear.
18 COMMISSIONER KENNEDY:
Very.
19 COMMISSIONER BRADFORD: Are vou sure it deoends 20 on the Executive Order, what it says?
Is it possible that, 21 in fact, it's fairly clear one way or the other, that 22 regulatory agencies either are or are not bound by Executive 23 Orders on this subject matter?
24 MR. SHAPAR:
Am I absolutely sure' The Ace f edsrol Reporters, Inc.
25 straiahtest answer to that is no.
16 5
MR. KELLY:
I don't think it is clear.
You have 1
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the status quo.
3 It is going to go up very soon.
The CEQ NEPA 4
is trying to get more and more power in the area of
-1+ bee responsibilities and their discharge, and they have got 5
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now which just came in recently which would expar d a
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their authorities.
Ultimately, they want to tell us how 7
5TerPN% &PA stjsn)yv to improvc t.hin m and that might raise this gphat in the g
other direction.
9 COMMISSIONER GILINSKY:
Oh, it was in connection 10 11 with that, wasn't it, 'that cipinion. on.that German case, steie it was 12 argued that we were not bound by. Executive Order --
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. KELLY: That' ht.
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CHAIRMAN HENDRIE:
Well, at any rate, with regard
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19 And, as I say, I would recommend it strongly to the ha/V
/v [, I20 Administration, and this should be made to the Congress in 21 the beginning.
22 Furthermore, I think we ought to think a little 23 bit about whether, if there is going to be an attempt to 24 set target dates, whether, in fact, it might not be better Ace Fedsrol Reporters, Inc.
25 to spell that out'in the legislation and simply recommend
bwl7 17 I
provisions which would seem reasonable and proper to us to 2
achieve the goals of, you know, an efficient process.
3 COMMISSIONER GILINSKY:
Don't we, in fact, set 4
target dates right now and we have a blue book which has
~
5 target dates?
It certainly has dates for EPA inputs and so 6
on.
We certainly have target dates for comments on all 7
environmental reports.
8 So, it seems to me what is needed is publicity, 9
not more coordination.
We need to publicize our process.
10 COMMISSIONER KENNEDY: Some Executive action to Il get those agencies who should make those inputs, to make them.
12 CHAIRMAN"HENDRIE:
I suspect that if we wanted to 13 go forward and say, "Put back the coordination language but 14 substitute NRC for DOE, where it says somebody shall set'some 15 target dates after consultation,"and people who can't meet 16 those then have to say why publicly, I suspect they would be 17 very pleased to put it back in.in Draft 3.
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u%t 18 COMMISSIONER GILINSKY:
It seems to me 3*jf nTthi t My WG 19 what we are doing' gin-this exercise 20 CHAIRMAN HENDRIE:
Except you would have the 21 legislative backing, and they still wouldn't be dates that 22 you could require other agencies to perform upon, but you A
y 4, 23 would the strongeat pressure of this having been set down by
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25 COMMISSIONER GILINSKY:
I would say that that sounds
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2 CHAIRMAN HENDRIE:'Well, it is at least a direction L3
. that we might.go. This is one of the options pointed out in
'4 your array.of alternatives with regard to coordination.
i 5
,I think we~have relatively little -- My impression
.6 has'been that the Commission has relatively little influence with - regard to whether or not the USGS can be encouraged to
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8 come to grips'with'a determination.
I think we deal more 9
-regularly with.-
I don't know -- what's the EPA coordination 10 like?
A little better in most cases, I think, isn't.it?
11 COMMISSIONER GILINSKY:
There isn't that much of 12 it.
There is EPA, Corps of Engineers, the --
13 CHAIRMAN HENDRIE:
USGS) *1 l
14 CC".* IS Nr""P CII,I"A"n LFish and Wildlife --
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16 MR..DIRCKS:
The Geological Survey works like a contracthtous.They. don'tgiveusdirecthelp.
We don't 17 18 waste - We contract with them for.their findings.
And'I think 3
moreandmorewearetryingtodoourownanalyfesof 19
.geologicalproblems.Soitisnothermit-grantingagency.
20 21 MR. KELLY:-
They're just a source of expertise.
22 tMR. DIRCKS: And.we actually pay the Geological 23 Survey.
24 MR. SHAPAR: 'Well, it doesn't have to be a permit-J
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%25 granting agency ' to affect the schedule. And beyond that,4 there f
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is the Corps of Engineers. There is the Wild and Scenic, the 2
Scenic Rivers Act, that can affect schedules.
3 COMMISSIONER GILINSKY: But in effect the USGS is 4
at the same level as we are.
~
5 MR. DIRCKS:
Yes, we can control them through a 6
contract.
7 CHAIRMAN HENDRIE:
My recollection is that we 8
used to have a helluva time getting Nate to file his report, h(), M,; N ' h N s
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g avven kd^u '. Con we get Jurn wt u 12 MR. PEDERSk4: You know, there is a real potential 13 downside to this, though.
We put ourself in the position of 14 setting targets for other agencies. And we take on ourselves acertain[onusforfollowingthroughif these targets aren't 15 16 met, no matter how formal or informal it is.
Now, I have 17 a real strong doubt that we can, in fact, make these targets 18 stick. And it could wind up with us looking kind of foolish, 19 quite frankly.
If we. set targets and they are routinely 20 missed, what real leverage do we have in terms of these 21 other agencies?
22 COMMISSIONER GILINSKY: Well, we set targets right 23 now.
We set --
PEDERSh:
Well, they tell us when they think --
24 MR.w. aLAu.
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'l' 25 GMIGS&IGNER-G INSKY-s-Well, that's about all y up-waw p
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That's in the CEO guidelines, 4
45 days, and thercan be extended up to 60 days.
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5 MR. SHAPAR:
It is required by statute by the 6
Clean Air Act, but it can be extended.
7 CHAIRMAN HENDRIE: We schedule those things now 8
in the reviews in the Blue Book, and what we are talking about
~
9 now is a perspective to increase the pressure for those dates 10 to be met, unless very good cause can be shown, 11 MR. PEDERSON: By what means?
What would we do?
12 would we put them in the Federal Register instead of DOE?
13 CHAIRMAN HENDRIE:
I assume.
14 COMMISSIONER KENNEDY:
Put them in a blue book.
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/})n Oud/2.o l 15 MP. FEDER6eN: Or put them in the Public Document g
l 16 Room.
17 COMMISSIONER GILINSKY:
Do we need to do any more 18 than put the blue book in the Public Document Room.
19 COMMISSIONER KENNEDY: Well, that doesn't seem to 20 have as much pressure.
21 CHAIRMAN HENDRIE:
Well, it doesn ' t seem to furnish 22 much --
'di 23 COMMISSIONER KENNEDY: Send a copy of 4he (insed-ible) s f
24 to the DOE.
Ace-Fedkrol Reporters, Inc.
25 CHAIRMAN HENDRIE: Well, look.
You know, you can't
21 simultaneously argue that having this provision in the statute bw21' ]
with NRC establishing target dates adds nothing to the muscle 2
aZf you of making other agencies supply their things on timej 3
were also going to argue with regard to Draft 1, that when the, 4
DOE set these target dates, this had terrible effects on our 5
6 independence.
Oc u L n
7 MR. PEDERSON:
I am going to (mdhie) on that, h
Cosgu.L because I didn't (1-rmumble) on that.
/d 8
CHAIRMAN HENDRIE: Yes, you did.
9 MR, PEDERSON:
No, I didn't.
I said I was willing 10 11 to accept it.
CHAIRMAN HENDRIE:
He had grave reservations,and 12 so on.
13 MR. PEDERSON: No.
No, I said that I have no 14 (12
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15 problem with that, with' the independent:s.
I just don't think the deadlines will work. That was my argument.
16 17 CHAIRMAN HENDRIE: Lots of people were concerned 18 abouttheindependenN.
19 COMMISSIONER GILINSKY:
I am.
They're in a much 20 more formidable place.
21 CHAIRMAN HENDRIE:
You mean, if the target dates 22 are Schlesinger's, why watch out, and if they are ours, 23 24 why everybody will (Bronx cheer.)
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CHAIRMAN HENDRIE:
Well, look, there are all kinds 4
'of variations.jWe.can say, "Look, we'll establish the target
.5 dates for the review,with careful consideration of everybody's.
0 needs?forJtime, and so 'on,"and pass them to DOE and say, "Well I
7 here it is.
From here on, everybody report,,'if they can't-d 8
make it.
Or we could --
9 COMMISSIONER GILINSKY:
Is this the kind of thing ycu put in legislation?
It is not clear to me that there is' a MN
/[11 report -- (inaud. 10) M it strikes me as sort of being at k
12 the blue book level rather than at the level of legislation.
I MR. GOSSICK: ' Aren' t we really talking about the exceptions like Diablo Canyon, like Seabrook, Bailey, you know, 15
-one.of the three, you know, two others --
I0 COMMISSIONER KENNEDY:
Seabrook wasn*t. a time 7
coordination problem. 'Seabrook was a substantive matter.
I0 MR. GOSSICKt ~Ohi*yes';.but I meant *that kind of 19 case.
20
. COMMISSIONER KENNEDY:
None of that is going to 21 be -
None'ofz those problems are going to be dealt with.
22 COMMISSIONER GILINSKY:
The problem is allocation
.23
.of ' respon's ibility.
.24 COMMISSIONER KENNEDY: That's-exactly the problem.
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25 A problem which, by its own admission,. the legislation does y
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not attempt to deal with.
2 What is at hear t, is the one-stop licensing process, j
3 which, for some reason, we feel,that is, the authors feel, a
or.the drafters feel, should be imposed upon states, but 5
cannot be imposed upon the Federal Government.
6 I find some illogic in that.
7 CHAIRMAN HENDRIE:
Why do you say it is imposed 8
up n the states?
9 COMMISSIONER KENNEDY: The legislation proposes to 10 do that, as I understand it.
11 MR. KELLY:
I don't think it goes that far exactly.
12 Part of the plan you've got to ensure coordination,. but I don't 13 think it flat says that everything has to be in one agency.
ja I may be wrong, but I don't think that's --
COMMISSIONER KENNEDY: It's shown as a 15 16 ne-stop licensing process.
)7 MR..DIPCKS:
.I don't think 'it is in the initi'al' book.
jg MR. GOSSICK:
The. thought is in there in the jp guidelines and set the stage but, of course, there's 20 flexibility.
MR. DIRCKS:
Provisions to assure that where more 21 22 than one s tate agency,is' involved, an agency with primary 23 responsibility is designated to coordinate, direct and 24 combine the reviews of. all the others, all the involvees.
A<shdarol Reporters, Inc.
- 2.5 CHAIRMAN HENDRIE: That's sort of the role that we,
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r-I in effect play on that, Federal Government role.
2 MR. KELLY:
That we might play.
3 CHAIRMAN HENDRIE: Well, right now.
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MR. KELLY:
I think we begin the now.
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CRAIRMAN HENDRIE:
Except we don't direct.
6 VOICE:
We don't direct them either. (5)
VOICE:
And we don't combine them.
7 MR. KELLY:
Almost one step.
8 CHAIRMAN HENDRIE:
Whether we choose to -- Whether 9
we would like to see it reflected in the legislation, or 10 whether we are willing to, in effect, bargain with regard to 11 an executive order, I think that at some point we are going to 12 have to collect our thoughts on what we think the coordination 13 arrangement ought to be.
14 COMMISSIONER KENNEDY:
One possibility might be, 15 along the lines that we have already discussed, that in a 16 normal case, as it always does, this agency establish as its 17 target, just as it does now in the blue book, it informs DOE 18 that that's the target on "
't it is proceeding and requesting 19 DOE to use its good office the Executive Branch to 20 coordinate the Executivc age.
.es.
All the others are 21 agencies of the Executive Branch of the government.
22 MR. DIRCKS:
Well, EPA has a split personality.
1 23 When they go into their regulatory modes, they become 24 isolated.
No one is allowed to tamper with their decisions.
Ace-F2d$rol Reporters, Inc, 25 In fact, they have their own adjudicatory process. Even the i
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1 Administrator doesn't get involved in some of the decisions 2
(inaudible.)
3 COMMISSIONER GILINSKY:
Is there a coordination 4
problem.
I 5
COMMISS IONER' ' KENNEDY :
Well, in such a case how 6
is DOE going to coordinate that?
7 MR. DIRCKS:
Well, that has been the problem all 8
along.
I think the issue may be we are getting decisions 9
4 confused with reviews.
It's one thing to say maybe we should j
10 ha.'e one agency and sort of pull together Lll of the analyses il on which the decisions are made.
I don't think you can ever 12 tell another a ncy that a decision in the water quality area 13 will be made by one-stop licensing,,or the decision on whether 14 you are going to permit a stream to be dredged and a certain 15 area filled, that's a Corps of Engineers decision.
We always talk about one-stop, but we are never atting to a point where we are going to tell an agency, you 80 1
can't make that decision --
19 CHAIRMAN HENDRIES: Well, without a substantially 20 greater piece of legislative change than we've got before /44, 21 a revolutionary change.
And I don't think there is any 1/ h 22 vvb y' Pi attempt to (ir; "Ashke) to that kind of direction, and it would 23 certainly create big problems for us in sucking us into a lot 24 of areas We couldn't stand.
Ace-Fsderal Reporters, Inc.
25
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think that is how, quite right, the decision So I l-l
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1 is made by the other agency. And when we talk about 2
" coordination," why you are trying to get them to agree to 3
arrange thei'r af f airs so that, indeed, they can and will reach 4
a decision one way or another by the appointed target date.
5 COMMISSIONER GILINSKY: Let me ask this:
do we 6
set a target in the blue book for, say, EPA?
7 MR. GOSSICK:
Yes, normal 45 days for everybody --
8 COMMISSIONER GILINSKY:
No, that's commenting 9
on the review. But, like, for example, the granting of these 10 various permits that --
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I think we get an estimated date.
y 12 MR. GOSSICK:
Yes, we get an estimatai da te, as 13 to when the water permit and that sort of thing is going to 14 be granted.
15 MR. DIRCKS:
But it's not a date we set.
16 MR. GOSSICK: We don't set the date.
17 MR. DIRCKS:
The agency tells us when they expect 18 the date to be.
19 COMMISSIONER GILINSKY: Well, I think in any system 20 they would probably be setting that date anyway.
I don't 21 think we could set a date for that.
But, still, there is a
- # 22 certain amount of discipline in the' keeping people to the i
.7 23 dates that they originally set.
24 MR. GOSSICK:
I would just make the observation that Ace Federal Reporters, Inc.
25 the problem is, I think more severe in dealing with states,
,bw27:
27 than it is with -- 1 am talking, you know, on the permitting
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states, when are their actions going to be completed. We have 2
3 g t this rhunarb in California, where, you know, they didn ' t i
4 want us to put our' Environmental Statement out until they had.
theirs done.
5 And they were taking their own sweet time in doing 6
it.
7 COMMISSIONER GILINSKY:
Again, that is a problem j
8 9
of deciding who has what responsibility.
Somehow, there is 10 a model here in the back of their mind, of there being some ij 50 permits that you have to get and then you computer-12 coordinate it all. And nobody's doing it, and it's all sort 13 f snarled up, you know.
14 MR. GOSSICK: At the Federal Government level, yes.
COMMISSIONER GILINSKY:
I just don't think that is 15 1
16 right.
I think you are really talking about a handful of 17 agencies, and the problems usually come when they don ' t i
18 agree on what their respective goals are, rather than just 19 simply sending in some things that are lying around on somebody 's 20 desk.
gj MR. DIRCKS:
A lot of it is not easily coordinated, 22 say, through Washington.
These agencies are very -- many of 23 them are very decentralized.
The Corps of Engineers operates 24 a di.etrict engineer, and there must be, God knows how many of Ace-Fedsrnl Reporters, Inc.
those.
25
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COMMISSIONER KENNEDY: The EPA has regional 2
administrators.
3 4
MR. DIRCKS:
The EPA regional administrators.
5 The office here doesn't do anything --
J CHAIRMAN HENDRIE:
I don't see why the coordination 6
7 can't run to the EPA Regional Administrator, as well as to the 8
Washington staff of the agency.
9 MR. DIRCKS:
Yes, that's true, but in a sense these 10 decisions are almost like state decisio..a.
They are out 11 ther e and it's the applicant that sort of has to do the 12 running around. And it would be hard to sort of for an agency 13 here, if they had a DOE coordination, to be running off to the ja regional offices to see if "X"
is moving along rapidly enough (inaudible).
15 COMMISSIONER GILINSKY:
You could make sure that.
16 each of these agencies had a plan, a specific plan for dealing j7 18 with following up on these reviews, so everybody had some 19 kind of a management control system,to make sure the process 20 will go on.
MR. DIRCKS:
One of the most knowledgeable on 21 what.Kominsky(?) will require is the Applicant himself.
He 22 23 is the one who has to find out whether he needs a permit from 24 the Bureau of Land Management --
Ace Fedsrol Reporters, Inc.
25 COMMISSIONER GILINSKY:
What this does, 'in ef f ect,
bw29 29 1
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4.
I is'put us in the role of a den mother for the applicant, and 2
we are then looking out for all those permits.
3 COMMISSIONER BRADFORD:
Permits aside then, to d
wnat extent can you get delay out of simply the reviews,that 5
an environmental impact statement is impossible to have if 0
the preparation for the statement is delayed a substantial 7
period of time, because one agency hasn' t contributed its 8
section -
9 MR. SHAPAR:
Yes, it is.
There are guidelines 10 put out by CEO, and we have guidelines in our own Regs.
But II if af coordinating agency comes back and says I need more 12 time to do it, it's very difficult to say you can't have any 13 more time.
l}pt Hasthathappenedoftenf 14 COMMISSIONER BRADFORD:
15 MR. SHAPAR:
It has happened in a number of 16 occasions, yes.
I7 MR. DIRCKS:
But it really hasn't delayed the 18 process.
I9 COMMISSIONER BRADFORD:
And how much more time 20 do they intend to ask for?
Is that a matter of accouple:of 21 weeks extensibn/ orrdo they'ask for six months extension?
22 MR. SHAPAR:
I don't have the specifics.
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23 MR. PEDERS,0N: But even under a target system, it
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They can't go to hearing under our
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hearing.
3 COMMISSIONER GILINSKY:
It delays the environmental 4
hearing.
5 MR. SHAPAR:
Yes.
That's right.
6 COMMISSIONER GILINSKY:
Which --
7 MR. SHAPAR:
Which is not on the critical path 8
right now.
9 COMMISSIONER GILINSKY:
Invariably comes before i
l 10 the safety hearing.
11 MR. SHAPAR:
Yes.
12 COMMISSIONER GILINSKY:
So, what is all this 13 about?
14 MR. SHAPAR:
In answer to a specific question.
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15 CHAIRMAN HENDRIE:
If I were a power c"ompany, and I), /)f 16 I came to this amorphous mass labeled mase-lebeled "Your 17 Friendly Federal Government," and discovered that for my 18 purposes, it was composed of a half a dozen major agencies, 19 some of whom had regional or district offices, who operated 20 as autonomrus power centers. And I discovered that my 21 Friendly Federal Government expected me to coordinate all of 22 his or its agencies, so I could get through with this project, 23 I'd be inclined to say, " Gee, I'd like about 15 percent back 24 on my income taxes, because you're not doing a piece of your Ace Fcdotal Reporters. Inc,
.25 job."
And I don't.think it is unreasonable to ask the Federal
bw31 31 4
1 Government, as an organizational unit in society, to be capable 2
in some, you know, low level of knowing what its left hand and 3
right hand are doing.
4 So, yes, I think that is right.
I think coordinatio n, 5
you may say, "Well, we don't need it, because we don't see 6
that lack of coordination is the primary controlling variable 7
in the length of the licensing process."
8 Now, like I said, I am aning to find it pretty 9
hard to explain to the President that we don't need to 10 coordinate the Federal Government's efforts in this area, 11 because that is the case.
12 I can see myself being forceably ejected, pitched 13 into the Rose Garden, off the balcony, or something.
14 MR, DIRCKS :
But if you were going to build an 15 oil refinery you would face the same problem, or a large 16 chemical plant.
17 CHAIRMAN HENDRIE: I think if I were a chemical 18 plant applicant, I would have a reasonable right to expect 19 the Federal Government to know what it had to do, and who 20 had to do it, and what a reasonable outlay of the --
21 COMMISSIONER GILINSKY: But these are all different 22 places, you know, organized in the government --
23 s(Simultaneous. voi'ces..)'
24 MR. DIRCKS:
And then you need a lead agency for Ace-Feds,ol Reporters, Inc.
25 oil refineries. And a lead agency for --
l l
32 1
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CHAIRMAN HENDh.TE: 'Well, not necessarily.
You know, 2
the concept being talked about is one of recognizing the target 3
3 date system and appointing somebody in the government to bang 4
on doors and --
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5 COMMISSIONER GILINSKY:
Well, we have that. What 6
we don't have is the banging on doors.
7 CHAIRMAN'HENDRIE:
Just so.
8 COMMISSIONER GILINSKY:
I mean, we have got the h 4 h
,We have coordination.
7//,? 9 koauclE_c.)
And we have target 10 dates.
What we don't have is banging on doors.
4 11 CHAIRMAN HENDRIE:
Right.
4 12 COMMISSIONER GILINSKY:
Now, the question is, 13 how much of that is useful, and how would you go about 14 doing that?
15 CHAIRMAN HENDRIE: Well, my comment is just that 16 I am going to find it very hard to argue that there shouldn't 17 be banging on doors of some kind, in this one context.
18 COMMISSIONER GILINSKY: Well, first of all, maybe 19 we ought to just take the blue book and bang on doors with 20 it.
2I CHAIRMAN HENDRIE:
Well, that's certainly a course Ai OdM 1/b 22 of action 6/
23 COMMISSIONER KENNEDY:
If, in fact, the banging 24 on doors seems to have less than the desired effect, I am 1 Ace Federol Reporters, Inc.
25 going to write a letter at that point to the Secretary of
33 e
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Energy at that point and say, "Look, we just wanted you to 2
know that this agency,which is a member of the Executive Branch 3
of the government, seems to be having difficulty in meeting 4
shat we had assumed to be its own target, set by itself, and 5
that's going to have this effect c mrocess.
Just wanted 6
you to know, and if you can help us regard, we would 7
appreciate it."
8 I guess I would have to as what is it 9
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COMMISSIONER GILINSKY: Well, I think agencies are
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..kg v;)/l regularly mo!Grence) beyond their 45-day commentary; 12 correct, Howard?
13 MR. SHAPAR:
I don't know if they do it regularly, 14 they've done it is all that I can say at this time.
15 MR. GOSSICK:
The last survey that I have seen 16 there were only one or two that we were sort of having, you 17 know, a problem with.
I think, Interior --
Interioris_gehtduud)D4*NMbbbb.
18 1-nededible. The. rest of MR. DIRCKS:
hk them are generally. pretty good.
1 20 COMMISSIONER KENNEDY: As to Interior, are those 21 function; going to the DOE, or are they somebody else?
22 MR. DIRCKS:
No, that's the --
23 COMMISSIONER KENNEDY:
It's Land-Use?
24 es, s
e Q d eW of M Ace-Federal Reporters, Inc.
25 impact statement and certainly the Fish and Wildlife
34 I
coordination has folded into their story (21 bw35 2
COMMISSIONER GILINSKY:
But in some ways, I think this is one of the most coordinated documents and N4hr n
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Probably. $bn&ks' f @A"
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5 COMMISSIONER GILINSKY:
(Ir =Aihle) and 1
6 We were talking about that the other day and we said we have 7
got more people' coordinating than we ought to --
8 (Laughter.)
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10 CHAIRMAN HENDRIE:
I think there is an opportunity here to get that coordination, get added to that coordination, j
II 12 the dignity that comes to a discussion and a formal recogn-13 nition of it in some form by the Congress, if you would like 14 to go the legislative route or an Executive Order, if you 15 prefer to go that way.
16 I am inclined to think that it will go one or the 17 other, because I think the view on the Administration side is 18 that a more formalized coordination is appropriate and desir-19 able, and they will want to have it.
20 And I only suggest, since it has now been written h/lkfl out of Draft 2, that we might # consider what we would like
.l v 22 to say by way of that coordination sequence, and you might 23 want to suggest it to put it back in the legislation, rather 24 than argue about it in the drafting of an Executive Order.
Ace-F -dsrol Reporters, Inc, 25 MR. SHAPAR:
I think from this discussion you've
' lw 3 5 35 l
I
.really identified three discrete questions.
Number one, do 2
you need coordination?
More than what you have.
3 Number two, if you do, who does it, whether it is 4
DOE or someone else. And, number three, if you decide you 5
need coordination, if somebody does it, do you want it done 6
by legislation, or do you want it done by Executive Order?
O&b tothatonemayhe 7
I think that the answer
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dependent on the second question, as to who does it, from your 9
standpoint.
l 10 COMMISSIONER BRADFORD : Well, if we decide :
cent 11 we want to do it, then we don't have to have it done by I
12 Executive Order or by legislation.
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Yes, that's true.
15 COMMISSIONER BRADFORD:
But I suppose you are 16 safer, if you have mechanized in a letter --
I7 CHAIRMAN HENDRIE:
I think it is clear that we 18 would like to control the establishment of the schedules. If 19 we don't do that, we are in a position of having somebody 20 harass us about getting things together.
We have been doing 21 it, and, you know, who is likely to do it better?
22 Then, the question --
COMMISSIONER KENNEDY: That is a good point.
24 Ace Federal Reporters, Inc, 25 El would be c'epping into this exercise, and not directly involveil in'it, 'can do that better?
36 CR4569 1
CHAIRMAN HENDRIE:
But once having the schedule set
- 2 side B ne 1 2
a la blue book the line to the other agencies spotted in where 3
they think they can comment with due regard to the 45 days or 4
whatever and so on, then with regard to the banging on doors, "
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6 COMMISSIONER KENNEDY:
I would like to bang on only 7
one door.
I would like then to be able to bang on the Secretary.
1 8
of Energy's door.
9 CHAIRMAN HENDRIE:
Or vice versa.
10 COMMISSIONER KENNEDY:
I don't want him banging on 11 my door.
We 'll set our schedule,. and I think one of the things 12 that we are sitting here to do is to make sure the schedules i
13 are adhered to, to the extent that they can be.
To the extent 14 that they can't be, find out why not and see what can be done 15 about that.
That's our job.
16 I don ' t need them to help me, you know.
I do need 17 them to help me, however, if somebody else outside, that I can't 18 reach or control, can't do his job.
I need somebody to help 19 with that.
That's where I think DOE can be helpful in the 20 process.
21 CHAIRMAN HENDRIE:
How does it strike you?
22 COMMISSIONER GILINSKY:
Well, I mean it's the way 3
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The only-difference. that there might
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'13 COMMISSIONER KENNEDY:
Well,'Vic, I would agree with that,ht the outset I don't think we need someone to 14 j
15 participate in.the process of establishing the schedules.
16 The sche'dules can be established, it seems to me, 17 just as they always have been.
The question is:
how can we 18 increase the effectiveness of those schedules?
[
19 And there, someone outside who can bring a little i
20 bit more pressure to bear than we are able, perhaps, to 21 bear.
22 COMMISSIONER GILINSKY:
To be frank with you,.I 23
. mean, what is going to happen is you are going to set up an 24
. enormous offi'ce'in DOE.
It is going to be a coordinating un.ca a.ca w comp.ny 25 of fice, f and' we 'may think we are coordinating them, - and pretty k
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2 COMMISSIONER KENNEDY:
Well, they probably will 3
have more people than we do.
I mean in total.
4
. COMMISSIONER GILINSKY:
I think it sort of comes 5
with that idea, that, you know, to have them coordinate us.
6 COMMISSIONER KENNEDY:
You are probably right.
7 CHAIRMAN HENDRIE:
Well, the other thing is to --
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i 12 after consultation with other agencies, then is directed by 13 the order of the legislation to g$ekl o back and bang on the doors jd/rf.ba c -
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16 COMMISSIONER GILINSKY:
There is no reason why we if/17 should'have a little (an T
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18 CHAIRMAN HENDRIE:
I have a notion they would be 19 glad to see it that way, if we would like to have that.
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23 You are going to -- a month later you would turn 24 around and there would be the " Bureau of Interagency Nuclear A>nics Repormha Company 25 Power Plant Licensing Coordination," with director, deputy --
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kW' f
/
8 coordinated by too many people.
bolo 6c 9
CHAIRMAN HENDRIE:
Well, he hau noc-been 40 10 coordinated by all of the outsides, ~5AA he would be 11 coordinated by his banks, his lawyers, his tax consultants, 12 people who have to get him licenses from the government, and 13 he will wish he was back in CDC.
14 Okay, on coordination then, it may on balance be 15 best to go ahead and ash why don't we take the lead role?
16 And I think indeed that they are going to want to see 17 somebody laid -- this responsibility laid at somebody's door.
18 And I think on our side, it would be useful, for 19 whatever good it is to have the additional clout of executive 20 order or legislation.
21 Do you have any feeling about legislation or 22 executive orders?
23 COMMISSIONER GILINSKY :
I would -- I don't know 24 that this has to be an explicit provision.
I don't know why
- n. a n.c m.m c w e nv 25 it can't be in a sort of a preamble or somewhere,that
40-
=
kds4 1
Congress says that it wants these things, rather than bring c
2 it out in any kind of detail.
j 3
CHAIRMAN HENDRIE:
That is a somewhat more J
\\
b 4
generalized para aph indica ting that Congress ie-inten 7k MMIA4 5
w4+h NRC em t*d ng-a lead r e.
How does that strike you?
u uh & 's%; *, ThkL,%ALl14 QQt'ald v s
/
6 MR. KELLY:
I guess one thing that occurs to me l
7 is how much protection do you think you may want from people 8
who want power in DOE?
That is spelled out in the statute --
)
9 heaniksa anything in the statute, it all comes in the l
10 executive order, that purpose.
11 Sure we could argue with them, make a legal I2 argument.
They are going to issue the order anyway.
You j
13' might head that of f, if Congress looks at it.
14 CHAIRMAN HENDRIE:
Furthermore, it seems to me 15 that one cannot withhold from Congress the prospect that such 16 an executive order might issue, either very soon or later, 17 and if I were Mr. Hart or Mr. Udall or whoever, why I would 18 say, good, now explain to me what you plan to put in the 19 executive order if you are going to go ahead and 20 coordinate agencies over which I have oversight on this kt$ukh 21 committee, and white we are considering major legislative f
22 changes in responsibility and so on.
,1 23 COMMISSIONER KENNEDY:
I would assume he would be v
24 want to know, Mr. Hart would, how we would be functioning un.a nomiina comrev 25 under whatever 4Gntf-t*
- !lt
41 l
kds5 1
CHAIRMAN HENDRIE:
I would think so.
And if you 2
have got to have that discussion, it might -- it seems to 3
me it might not be a bad idea to have.it in the context of 4
some sort of specific language before you, which would be
~
5 Part of the legislation.
6 Somebody want to try a crack at that?
Should we 7
ask Howard to draft?
You have a certain amount of 8
experience in these lines.
9 MR. SHAPAR:
I resign
')
yg Df 10 CHAIRMAN HENDRIE:
Do you want to try something, 11 what, general?
I 12 COMMISSIONER KENNEDY:
Gee, you draft for 13 eve rybody else, I don't know why you can't draft for us.
14 MR. K$LLY:
Take your pick.
15 CHAIRMAN HENDRIE:
Take a look at the struck 16 portions of draft 1, visualize NRC substitute for DOE, and 17 then back it down from -- see how specific it all looks, 18 and back it down to a somewhat more generalized paragraph 19 that we could look at, expressing the intent of Congrees, 20 I guess, that NRC ought to take a lead role in coordinating
.21 and establishing schedules, and that other agencies should 22 cooperate and meet schedules, except for good cause shown 23 or whatever, something like that.
24 Let's see how that looks as a possible w,o n. -,,y como.nv 25
' coordination.
42 kds6 1
COMMISSIONER BRADFORD:
In defending this charge, in the order jf m,qfub1 ik'ob24^fh f
ak.a.eg erredh, we are not j ust 2
protecting our own{7gi.N Mainly " hat I think, the point has to q /
,3 j
/[
(4 be understood that it would be just extraordinary for a court-ua or really any J [;icid body to give up control of its own ju 5
6 schedules.
7 There is a really close relationship between 8
fairness in scheduling and fairness in the proceeding as a 9
whole, and if you turn the scheduling over to someone who 10 is not in charge of the rest of the proceeding, there is a 11 failure in coordination there that is going to result in a 12 lot of complaining.
l 13 It's even conceivable, I suppose, that you could 14 get an appeal based on a scheduling action of the DOE in 15 some sense that was denied somebody.
16 CHAIRMAN HENDRIE:
That it compelled things at 17 such a pace that there wasn't adequate time for 18 consideration.
N
,}qtrt 19 COMMISSIONER BRADFORD:
Yes, if you ~
the CL 5 0N 20 situation where the main 3udi-eral agency could be -- have adjudicative processes shYif-,b t ne way or another by the
[]
r 21 XLC[JM f some g g else, n
22 s us pen s.t-n-
.it would take an t
23 extraordinary set of events to justify that, and I think k more or less brought out that.that wi$lknMbEink*
24 N
une n.mong c n.,
25
& quite true, that the problem exists, never mind, if it's
43 kds7 1
serious enough to justify a step 4aar e).
2 CHAIRMAN HENDRIE:
Good thought.
3 MR. KELLY:
Al Rosenthal made the oint last week
.e i /
hat, d
)/ f 4
that, he's never been under deadlines that he considerp' j
5 eo adlines D'M 6
I know in fact that he runs -- he's a bit of a 7
tyrant out there, and he pushes people to get things out, 8
and they do get things out, but he's never been under 9
deadlines as far as I know.
10 He just thinks it 's inappropriate to put that 11 deadline on an adjudicatory process, and I thought the 12 language might reflget some recognition of not following
(,GY klOf Ah 0+ AL 4L 2.
$LL
'MU@.
l
/
13 deadlines anaw w w,
14 CHAIRMAN HENDRIE:
Let's see, we used to put in 15 dates in the blue book for the Licensing Boards.
We would 16 try to target -- the main date was the target on which 17 everything was in place and you could open the hearing.
18 That was the big one.'
19 But typically then there would be a --
20 COMMISSIONER KENNEDY:
It was an estimate of the 21 length of the hearing.
22 CHAIRMAN HENDRIE:
It was an estimate which 23 would run what, four, six weeks, or sixty days.
24 MR. SHAPAR:
Six months for the contested cases, ss
..c= so,,,,o comnory 25 or five.
44 8
kds8 1
CHAIRMAN HENDRIE:
And it was sort of an 2
experience -- best estimate based on experience as to what 3
a contested case or an dd$bontested case, as the case might 4
be, might run.
~
5 MR. SHAPAR:
Right.
6 CHAIRMAN HENDRIE:
And I don't think the Boards 7
regarded those end dates as, you know, so compelling a due 8
date for the end of proceedings that it ever affected 9
anybody's due process.
10 I expect it would probably continue in much the 11 same sense in that end of the --
E-kneeked-mm'95)C5b
%nYLbffJ4 12 MR. KELLY:
Mugge ion-that 4
e e
13 adjupications are sacred.
The ydministrative ponference tI 14 hasv in e.
C-I think, still does. They have a 15 feet-to-the-fire approach that they apply Whh 16 Your cases get so stale you've got to write in 17 and tell them why, and that puts a lot of pressure on 18 judges, who overrush to get the cases cleared off the 19 docket to report to the conference.
20 MR. SHAPAR:
Whether or not the Boards feel 21 pressure from the schedule will depend on how articulate 22 the Commission is in letting the Boards know its 23 expectations, whatever they may be, about those schedules, 24 and not the schedule itself.
%,nn mmcomwv u
25 CHAIRMAN HENDRIE:
Okay.
Now the third thing --
45 kds9 COMMI SIONER KENNEDY :
Well, we've been going j
gb AU" through monthly (a)/review of the licensing process as it 2
3 stands, and cases before us.
4 At those meetings, both Rosenthal and Lerc M,,h' explain where they are in b Iase before them, and I think 5
] b QanW $nb it's been understood that what the Commiss oner can 'i 6
[ascertainwheretheremaybesituationsfactiononthepart 7
8 f any staff or the Commission or whatever might be able 9
to smooth things out and continue the process, move it 10 forward.
11 CHAIRMAN HENDRIE:
Okay.
The third area, Jim, 12 was what?
I've lost track.
13 MR. KELLY:
The notion of delegating certain ja responsibilities to the states.
There are certain features 15 to this, pretty complicated areas.
16 We have been put in the business of writing n
17 guidelines and overseeing the adequacy of state programs as d
cl b
i jg oppor' d.'
to DOE in the/ p gra
-- that's one point --
19 CHAIRMAN HENDRIE:
Gee, I kind of like DOE in 20 the role myself.
Are we prepared to deal with it?
21 COMMISSIONER GILINSKY:
Well, they have also 22 backed off on the preemption.
M O,, btf l IlO fq
[
A Mrr .c 111:
I don't think so.
23
- o,;
gq :
\\
24 W
M R-1Er-As I read it the preemption I
m,,o n.or
, amom 25 is in there.
46 i
4-kds10 1
COMMISSIONER GILINSKY:
Well, but it no longer says that it could be preempted to speed up the '0bA,$ dime) c;
'in 2
^
h Q'-
di > f Aetmed, or f_f_g'(jil
_ ____ adens1s:trat~tur-3 4
MR. KELLY:
Well, there is some softness.
5 CHAIRMAN HENDRIE:
Took it out for a specific
/
6 case?
19 7
COMMISSIONER GILINSKY:
Well, in the previous 4ftyk%CDosf+4 8
version, in effect, it S=14--flay' -- they said that the 9
state had to meet some of the environmental ' standards, and k
alsoitcouldn'tekec. And if they did, we would hold 10 11 back.
12 Here, NRC is setting the guidelines and there 13 are minimum standards, and you can pull back if they don't 14 meet those standards, possibly for some other reasons; but 15 as a practical matter, the discipline that's imposed, I think, 16 is much less.
17 MR. SHAPAR:
Well, the delegation of the states 18 is in there, and the basic idea of preemption is in there.
19 The main differences are that, number one, the guidelines 20 for a state entering the setup are now set by -- would be 21 set by NRC, and not by DOE.
22 The other change of significance is th at 23 instead of having the ability to terminate a whole program 24 or the application of the program to a specific proceeding, t,, e n. -,o co,nr..,,,
25 as I read the bill from a quick reading, that's been cut l
47
.~
k ds11 1
back to terminating the whole program, but not an individual 2
proceeding.
3 What raised this question was:
is preemption 4
still in there, and'the answer is yes.
5 COMMISSIONER GILINSKY:
Well, it is, but it's 6
in a different form.
In other words, NRC can still get it if 7
back -- I have % read it closely, but it would seem to me 8
if the state program was inadequate that, I think it as a' practical matter will mean that they are not beu: JAM 11<j f-$dl'a ny g ( _ n a udi b im,)
/
9 10 environmental standards.
II MR. SHAPAR:
Yes.
They are not doing a good job 12 in this.
13 COMMISSIONER GILINSKY:
They are not doing a g6od 14 job.
15 MR. SHAPAR:
Yes.
16 COMMISSIONER GILINSKY:
The other way, DOE could 17 pull it back if they were kind of slow in licensing and so 18 on.
p 19 MR. SHAPAR:
Yes.
That's out.
20 COMMISSIONER GILINSKY:
It doesn't have -- that's 2I right.
That's out.
22 It means that -- now the other one I thought was 23 bad for other reasons, but at least it did#t sort of have
/deu gehsi4e. ine.,f N 5 rtk 24 the effect of moving things along.
m_
4.n.n s.,mi.no c<-g.nv
.fhis one will now. b1[(
25 O'L/
gGQQs<kceNLfkLAu/,eu m0 of L$ l} Af'M M
~
- 48 'i' 3
s kds12-
'l
' COMMISSIONER BRADFORD:
What's the' history here?-
&MnY mb1*%n w4 *&"^ 4 nvha,?-Has. there b}e - n a p
- upj art c nta 2 dcw h'
^rwironmen m g ~' ~>
3 be#
S"?."'.n9.
There is some indication that they MR.
5 do.
Wrt.2 l.l 6
COMMISSIONER P.PJ.ONEO i Some states do.
-7 MR. SHAPAR:
There is a feeling-on the part of 8
.some states that need for power and environmental impact 9
are traditionally and pro
-1v ftate matters.
s 10
. COMMISSIONER KE., "O'[:
What about for other types
/[fq 11 of f acilities, leaving the'4G na_. fbi c)B 1 W k'Eb sH $
pub ~
to the states?
Would g
12 states start doing environmental impact analyses and things 13 like that?
14 MR. SHAPAR:
Well, some s tates, as you undoubtedly 15 know, have -- some states have statutes that are little 16 NEPAs;.'others ha've state -- have programs that are semi-NEPAs; 17 some states have' statutes that are almost no NEPAs.
iou 18 find tremendous gradations, o
19 COMMISSIONER GILINSKY:
Don't they on the whole 20 tend to ac' cept our statement in satisfying their process?
21 MR. SHAPAR:
I think it depends on the state.
I 22
- certainly don't think you can say that about Wisconsin.
23 CHAIRMAN HENDRIE:
What about New York?
24 COMMISSIONER GILINSKY:
Not New York and-korEck Reportnig Comgyany 25 California', but.do you say that about' Kansas?
=
~
J,. :
49 eye
's 3.
kds l'3 1
'MR.'SHAPAR:
I'm'not' acquainted with Kansas;.I:
1
~
l
'2
< confer it upon.the' executive' director of operations.
13 MR. GOSSICK:
I'm not from Kansas.
.4 MR. KELLY:
I.think this.is-tight /than my
.1 5
" recollection of'the earlier draft.
The' state' program.here
~
6 has to either ' comply with NEPA, in othar words, they just
~
7' track NEPA procedures, or it has to be under a state law-finds'QDVOfnfihhN j
8
'which the Commission, us, rinaudible-) with CEQ,' meets
'I 9
the requirements of NEPA.
10 I read it; fairly' rigid.
I think the early one j
ll was a little~ looser.
12
' COMMISSIONER GILINSKY :
No, what I meant was that 13 since the intent 'of this bill is to increase ' efficiency and 14
. move things along - EI think that's what they say at the
'15 beginning.
'16 The" state may have all kinds of other benefits, 17 but is it. going to-be moving things along and speeding 18 things up?
r l9 MR. SHAPAR:
I think the answer to that depends 20 on several intangibles.
N umbe r one, the kind of guidelines 21 that are actually written pursuant to the legislative 22 inj unctions ' that are in here,. such as one-stop licensing.
23 Another,- I wouldn't call an intangible, because 24 it:. is money.
LIf enough money is 'provided to jack up. the a,n,c= a.oortir.o co m po,v
.25 state programs,. I' guess ~ in' theory one codld argue they i
l 50
'k ds l 4 1
would do a better job.
2 COMMISSIONER GILINSKY:
Yes, but in many of these 3
cases they are not doing much of a job now, and they are 4
relying on us.
If you give them a lot of money, you are Jsyvinewmul5$
5 going to create a state thre"ch our--ewn bureaucracy that ble) b W5 M
i 6
doesn't au 7
You ara going to balloon.the process.
It's not 8
clear to me that that in fact is going to happen, or 9
necess arily that it 's undesirable, but it doesn't seem to 10 be in keeping with the original intent of the bill.
I1 MR. SHAPAR:
The conceptual answer to your 12 point, which is a good one, is that. in theory if the 13 guidelines are well-written and well-implemented, in theory 14 it ought to provide for a..gdod e ate program.
k&Avn2 COMMISSIONER O! LINS:"y' Which in principle is a 9)f h
15 1
-1 16 good idea.
lA'h
}decisionmaking
)
17 MR. SHAPAR:
A good and efficient4 18 process.
That, I think, is the conceptual answer.
19 Now if your question is whether or not it will 20 really do this, your vote and guess are as good as mine.
21 COMMISSIONER GILINSKY:
Okay.
You said -- we 22 were talking about it earlier, and you said this area has 23 been studied to death and so on.
I guess I rer.lly don't 24 think so.
I don't think we really know precisely wha t to p
ww
1 7,
5 11
]
kdsl'4 L 1
COMMISSIONER KENNEDY:
The 102 study certainly 7
2 touches on the' issues',
and.we are. awaiting.the governor's 1
1 3
n'o w : (inaudible)..
~4 COMMISSIONE R - GILINSKY :
Yes.
Now you know, that
-5 study, which :I. think 'was not the ' deepest study in the' world,
-6 4 but 'anyway, it' had a chapter in there on the causes for 7
delay.
1
-8 It did not list state environmental reviews as
-)
l 9
- a'cause for delay.- In fact, it said they were not a cause
'10
'for' delay.
Now -- nor was the NRC process,lic _t9k N}$
ecause
- 1..,- b
)
11 it was written by the NRC and the states; everybody else was to bl'ame
/
r 12 g
gf g
%.hA4 f In any case,. they did' look at ;this part of the 13 Ogw_f4d d44440 h 14 process and concluded it is-not Lin bic) delay.
15 MR.'SHAPAR:
I think the. general perception now J
16 is_that'in.many states,-- I can't -- I. don't know'if I-can 17 use the word "most," but the NRC reaches its decision'before 18 the state does in environmental matters.
19 If you want an example, which you..will.all' recall, 20 was.the decision about going into
-a joint' hearing with the 21 State.of-New York.' If you recall the situation there, the 22 state was desperate to have a joint hearing, because before 23 the. dirt could be dug they needed an approval from the State 24 oof NewJYork!and.from the NRC.
" irnck Reportvig Corf1pany 25
.It,wa's perfectly clear, because when New York 8
+
.-y..
o pym..-.
52 e
k ds l5 -
1 procedures with respect to the Cementon plant -- there was 2
no way that the New York approval could come anywhere near 3
the time frame that the NRC decision would be produced.
,7ut mac e.
4 COMMISSIONER GILINSKY:
I think that is o
! [/ 5 particularly true in states that extensive review processes.
/
6 So what this aould be doing is encouraging many states to MNo ex heir r iew rocess hpand
'n a se j
.0 U
454 lg b 7'DIRCKS:y 8
MR.
Was there a problem more with 9
hearings, the way they held hearings, or the way they 10 gathered their environmental information?
II MR. SHAPAR:
With respect e lot of matters, one 12 of which was the hearing process -- again, I guess these are 13 all genuine concerns.
The best answer I can give is the Id kind of program that would logically be produced by the 15 promulgation of sensible guidelines.
16 If the job is done right and implemented I7 properly, and enough front money is produced, then I guess 18 one could reasonable argue that there should be produced a I9 state program which accentuate matters like one-stop 20 licensing and all the other shibboleths that have been 21 passed around here for three or four years, and in theory 22 produce an efficient and good decision =aking process.
23 And whether or not that will happen, I don't 24 know.
> %.o % m.,ocamp,
5 MR. PEDERS N:
But you know, Howard, no matter
53 I kdsl6 1
hoa well you write the guidelines, the fact is you are going i
2 to wind up with state programs, I think, that are going to 3
vary substantially, ' j ust like we found in the agreement 4
state program.
5 And over and beyond this, there is the political 6
difficulty of really terminating --
7 COMMISSIONER KENNEDY:
Is that --
8 MR. PEDERSON :
I'm not saying it's bad.
9 COMMISSIONER KENNEDY:
That goes without saying, 10 but is that a serious question, a serious problem?
11 MR. PEDERSON :
Potentially, it could epending
's I 12 on how wide these variations become.
13 Moreover --
14 COMMISSIONER KENNEDY :
It depends upon the 15 nature of the guidelines.
)
PEDERS[ :
Well, but I am saying, how j
16 MR.
17 detailed you can make these details is the question in my 18 mind.
19 Moreover, there is a real question, once you 20 make this delegation, the political difficulty in reality 21 of terminating and suspending it, when in fact you find
, f'5
. /
22 drift, when the set points begin to drift.
We have run into
/###*
23 this in the state agreements program y
24 COMMISSIONER GILINSKY:
In fact it seems to me M nck Renomno Ccimpany 1
25 that if you really wanted to do things more quickly and be i
54 u ch N>
kds17 1
more efficient r-A e) absorb all the state responsibilitic s h.
gyk &tYt2 hk 4d226d 2
a n=dibld which urns these things out, and you've got 3
factories at Oak Ridge and Argonne and we turn out these 4
environmental reports.
5 CHAIRMAN HENDRIE:
That is also in the 6
legislation.
All you've got to do is set the threshold and 7
the guidelines a little bit high and everything reverts back.
8 COMMISSIONER KENNEDY:
But as a practical matter, 9
is it reasonable to suppose in the last analysis, this 10 agency should assume to itself responsibility for 11 establishing environmental guidelines or environmental 12 decision (inaudible) when after all, that's the state's 13 responsibility?
14 Why shou]d we continue to assert that only we can 15 make decisions of that kind?
What we need to do it seems 16 to me -- and that's the purpose, as I understand it, of the 17 legislation.
18 The purpose states the pcsition: do this for 19-themselves, and to help them do it right.
l 20 COMMISSIONER GILINSKY:
I think you want to 21 parcel out as much of this as you ca;n now to the state, but 22 I suspect that probably doesn't mean a wholesale shifting of 23 responsibility.
24 CHAIRMAN HENDRIE:
Yes.
I think the (inaudible)
M iruck Reportaug Cmpaey 25 to the provision as it stands, it ha.s the kind of defect
55 f
kds18
.I and some -- several people pointed this out in their 2
- comme nts, that it is an'all or nothing proposition; either 3
the states do the whole shebang according to a great set of 4
guidelines that we set down -- which are inevitably going to '
5 look like safety, like Regulatory Guide 4.2, maybe times a 6
factor of two or, you know, which means it is probably never 7
coming.
~
8 So you know, it will be a book like that and the 9
state.' will get it and say, what is this.
Either they do the 10 whole thing or we do the whole thing.
And I am afraid that J1 isn't practical.
.12 There may be a stage or two where indeed they are 13 prepared now, or in the near future could be prepared to do 14 a fully adequate review.
15 The sort of principle that I would like to see 16 reflected in the legislation is that there ought to be a 17 full-scale NEPA review for each of these propositions; but 18 there doesn't need to be five or six, or two such full-scale 19 NEPA reviews.
20 That is, society owes it to itself to look very 21 carefully, but having looked very carefully once, why I 22 don't know that you would need to go and do it again, maybe 23 again and again.
24 So I would look for a proposition in which, mno n. y,,,,com m y.
25 indeed if there were a couple of states that can do the whole
I 56 j
1 kds19 1
thing in a fully responsible way, that we would be 2
authorized to. accept their finding.
3 On the other hand, there are a batch of states
~4 where they aren't set up to do that, but they could do part 5
of it.
In particular, every state, I believe without l
k 6
exception has a public service commission or corresponding 7
entity to regulate public utilities, and they make a l
8 determination called, what, something of a necessity or 9
equivalent for a power plant.
i 10 I have a great deal of difficulty seeing us i
11 repeating on a slightly different basis the whole need for 12 power question.
So as a minimum, I would hope this 13 legislation would allow us to accept appropriate state 14 certification as all that's needed for -- on a need 15 power.
16 COMMISSIONER BRADFORD:
It certainly is true that 17 all states, except maybe Texas, have commissions that 3
18 regulate utilities, but it's not true that all those 19 commissions have to issue certificates --
20 CHAIRMAN HENDIRE :
Issue certificates.
21 COMMISSIONER BRADFORD:
Well, there is another
'22 question, it seems to me --
23 CHAIRMAN HENDRIE:
How did they decide in the 24 places that they don't that they don ' t?
%,nics Resvtaig Compey 25 COMMISSIONER BRADFORD:
Well, the only way it comes
57 I i
kds20 1
up is it could -- the fact is that they don't.
They accept (i.cz p'dibl ).eMak~
The way it,comes up in theory is the 2
that as na t.
0 b1 k C+0W @2 Vn C&T Gdrp h f)$ct b ~A h CW <;
3 rate case, imu bte).
$so\\) AnW 4
CHAIRMAN HENDRIE:
If somebody says, how did that 1
>}A 5 get in there, that would -- we didn ' t read that.
CC&L 6
COMMISSIONER BRADFORD: 2he practical matter at l
/
' h $$1 8 k Y.hLNlh :2$5,7L.
4 7
that point (4naudtbiet.
j 8
CHAIRMAN HENDRIE:
I take it back.
9 COMMISSIONER BRADFORD :
Most states do, but there 10 are some.
Il COMMISSIONER KENNEDY :
Depending on where they 12 do would be a coint to, it's quite right.
Where they 13 do this, certainly seems no need or reason for us to do it 14 all over again, or even a major portion of it.
15 CHAIRMAN HENDRIE:
In particular because the 16 whole thing is so murky, having to project demand, possible 17 alternative sources, conservation measures, the whole thing 18 on out a decade or more in advance, leaves us in an area 19 where it just isn't our bag.
20 COMMISSIONER BRADFORD:
There is a difference (bh I $M M f+n= Ale) 6T'nless you do guidelines on the need for power 21 ghtb%s u llorva Q 4 Wl/2 &%% At.42<.J ado 4'O,tt/Eff?
22 matrnr.
- Acvwn, y
23 I take it on the state NEPA review we are 24 talking about something done pursuant to fairly extensive 4 - sono,n,m em%,
g 25 guidelines, that in fact, tostandcourg,theywouldhave
58 kds21 1
to put them out like any federal NEPA.
2 CHAIRMAN HENDIRE:
I suppose.
3 COMMISSIONER BRADFORD:
Howard, is the 4
legislation proposed that we set down the guidelines under 5
which the states determine the need for power?
6 MR. SHAPAR:
We would have a lot of flexibility i
the way h 1, Y)
D.
()
8 CHAIRMAN HENDRIE:
It might, but I would hopa 9
not.
10 COMMISSIONER KENNEDY:
The question as to the 11 need for power, it seems to me if somebody in the Federal 12 Government is concerned with that issue, what we -- rather 13 the Department of Energy, that's something we can 14 determine, what the need for power is, ought to be, in a 15 very broad sense, regional or otherwise.
16 COMMISSIONER BRADFORD:
But that --
17 COMMISSIONER KENNEDY:
It certainly ought to be hY W
18 able to work with the states, but I never why that was our 7
)1 I
I /
19 business.
r 20 COMMISSIONER BRADFORD:
But that is -- saying tha;,
21 it should be done in DOE is dif ferent from saying that the 22 states should do it themselves.
23 Some states have -- New York, for example --
24 pretty much a coherent power group with the New England
+,no n y u,o comn.-v 25 region doing this.
If you had all six of the states making
59
&L A-kds2 ff\\ l their own need for power +._erpret tien in a serious way, 2
they will have some interesting problems of their own.
3 CHAIRMAN HENDRIE:
Well, how about just the 4
certificate -- accepting the certificate of necessity.
5 COMMISSIONER BRADFORD:
Wherever you've got it.
6 CHAIRMAN HENDRIE:
Wherever you've got it, and 7
where you haven't got it, perhaps an appropriate 8
certification by the governor that the need for the power 9
from the proposed plant, indeed, the state government agrees 10 with the report.
11 COMMISSIONER BRADFORD: 3 You have to realize, I'm 12 basically in agreement with you, it's not a useful
! p l/f 13 determination for us to make.
I donthink you are going to 14 get a vast difference in the quality in the way those W
determinations are made,y)ppy,gqE&ML-u, N s
15 puaum.
4 4t em 16 CHAIRMAN HENDRIE:
I tfi$
tNdf certainly true, 17 but that suggests appropriate ratings by the states on their 18 own initiative, rat:er than ours, and I would prefer not to 19 have to set guidelines for this because that then will go 20 back -- you know, if you arrive at the stay at the public 21 service commission in the State of New York and say, hey, 22 we just got a new set of guidelines on how you are going to 23 do, you know, a certificate of necessity review, why, you 24 would.get your teeth handed to you.
lon.cs Repcomo Company 25 They are well-organized, and have a great big
60 kds23 1
staff, and they at'least think they know what they are t
Mcg4p 0 '<\\
doing, so I don't want to have to guideline that (
aummule).
1 3
MR. SHAPAR:
By the way, one of the changes in 4
this bill from the previous version is that the NRC would be '
5 precluded from issuing the construction permit, unless the 6
governor of the state would --
l 7
COMMISSIONER KENNEDY :
Excuse me.
Would be what, 8
precluded from --
9 MR. SHAPAR:
Precluded from issuing a construction 10 permit unless the governor of the -- or unless the state b
had provided a statement of convenience b sees 4n e
12 CHAIRMAN HENDRIE:
That 's in there now?
13 MR. SHAPAR:
Yes.
Whether or not the state 14 elects to come into the program, by the way.
15 CHAIRMAN HENDRIE:
Really?
I hadn't even 16 noticed that.
17 COMMISSIONER BRADFORD:
hnat are the consequences 18 of the, especially the thrust towards standardized reactor 19 design, if that comes about, of having different states make 20 different environmental impact analyses for the same reactor 21 design?
22 MR. SHAPAR:
The way the bill is structured, as 23 far as the radiological impact is concerned, the states on 24 their environmental assessment would have to take the NRC's
' un.cx r<.non,o comp rv 25 writeup of the radiological impact and accept it as given
i 61-
.r tp kds24 1
and crank into their environmental assessment.
2 COMMISSIONER GILINSKY:
Now let's see, how does h
that Mf"ta to the. Clean Air Act?
10K t
q 3
b !
4 MR. SHAPAR:
Well, the Clean Air Act is a new 5
chapter, and --
.6 COMMISSIONER GILINSKY:
We would have to accept i
7 theirs.
8 MR. SHAPAR:
No.
9 This is a determination of the impact for l
10 purposes of an environmental impact assessment.
11 MR. KELLY:
There is.an exception in here for a 12 number of federal statutes, including Clean Air Act, in the 13 preemption area.
It says if the states don't pick up the 14 ball and do that, they are preempted, except for, then it 15 lists three or four, one of which is clean air.
16 There is another aspect of this that I think 17 perhaps should be borne in mind.
It's not simply a matter dNe) where you had states f
18 of thinking in terms of tb L
19 that have geared up NEPA programs that meet federal guidelines 20 or not, because it seems to me, and I think it would work 21 this way, you also should take into account the impact that 22 this preemption language would have on something like local 23 zoning.
24 I don't want to get into adjudication, and I won't, wn.c n.wmg ccapenv 25 except to mention that we will be looking at this Indian Point
l 1
's 62 kds25 1
case.
And as I understand it, let's say New York did not Wv 2
come up-with the acceptable program.
i 3
Then I don't think the Village of Buchanan, New 4
York could try to do anything about pooling power to Indian 5
Point.
And that is something which you may or may not get 6
into in the next couple of months.
j 7
But I think the way this is written we would 8
then, NRC, in a state not having an acceptable program, would 9
decide whether or not the cooling towers ought to be built, 10 and if we said they ' needed - to be built, they would be built, l
11 and the locality would not have.a say in it.
12 COMMISSIONER KENNEDY :
Whether or not --
a 13 MR. KELLY:
You would override any state law to 14 the contrary.
I think that's the way this is written.
And 15 tha nay or may not be a good idea, but I think it's a fact 16 that one has to bear in mind.
17 CHAIRMAN HENDRIE:
That complicates the issue of 18 the halfway case, part-way case.
That is, as written, either 19 we do it or the state does it.
If we do it, why, the state 20 is not allowed to do anything.
If the state does it, why we 4
21 just accept their findings and go forward.
22
~ I think we need this legislation written to 23 allow us to be able to accept more limited NEPA-type 24 findings.
.The need for power is the particular one that I
+ ~c< n.- mo c m.nv 25 would like to see that do, but there may be others
[
^
63 kds26 1
connected with' land use that, even where they are not 2
well-equipped to examine all the fish, fowl and so on, they 3
are quite able to say that land use --
4 COMMISSIONER GILINSKY:
I don't know, if it is 5
a finding that we would turn over to them.
For example, now 6
we're working with New York State to do parts of the I
kN 4'
~h $p yts hh h42, p&L.' Nt' GAfthey agree that 7
environmental statement, f g4 '
Y n4b 8
Anaudib 9
CHAIRMAN HENDRIE:
In both our hearings -- or in
/
10 a joint hearing, if we can do it.
I 11 COMMISSIONER GILINSKY :
And it's oing to be used gpk.ff),kwo Hh^A"
- 12 in our environmental statement g..amdiblc) e But 13 anyway, they are going to prepare parts of our environmental 14 statement, i
15 COMMISSIONER KENNEDY :
And we about split.
16 CHAIRMAN HENDRIE:
Well, that seems to me to be 17 a perfectly reasonable arrangement, and I think the 18 legislation ought to reflect that kind of -- have the 19 flexibility in it and authorize us to make those kinds of 20 deals and sort of cut anywhere along the line.
21 COMMISSIONER KENNEDY:
Which follows precisely 22 along your earlier prescription, which was find a way in 23 which a thorough-going environmental review can be 24 comple ted, but once, not twice, w,no n wiu,o coms.v,v 25 CHAIRMAN HENDRIE :
Yes.
64 5
s kds27 1
COMMISSIONER GILINSKY:
You know, there are 2
differences in our review and their review, because ours entirely b [
3 cross state lines and so on.
So it isn't 4
COMMISSIONER KENNEDY :
And as to the crossing 5
state lines, in many, many situations the only way that's 6
going to get done is if we do it.
7 COMMISSIONER GILINSKY:
Yes.
8 COMMISSIONER KENNEDY:
Because it requires 9
regional considerations, and that 's, perhaps where you have 10 many governors, and that's not always easy to achieve.
11 CHAIRMAN HENDRIE:
Well, we may end up out of 12 this with a situation in.which, for mos t, with a few 13 exceptions, you would manage to be authorized to accept the 14 need for power finding from the state and not much else.
l 15 But that's okay.
That's a step forward.
And I l
16 would like to see the language coulter the possibility that ap On 17 we could cut p deals Geom other parts, but not only - -
18 COMMISSIONER KENNEDY :
The objective would be to 19 go the entire route when indeed that's reasible to do that.
20 But recognize that there will be instances in which you can 21 only take very small steps along that road.
But you will be i
22 able to move from one to the other as the situation permits 23 you to do so.
24 CHAIRMAN HENDRIE:
Just simply keep
+no n.-,ng cow.nv 25 renegotiating the agreement with the state about the
I 65 kds28 1
sharing --
2 MR. SHAPAR:
Well, there is one simple, very 3
simple way~of carrying out that vow, and that is follow the j
4 analogy of the, one other amendment to NEPA that is already
~
5 Passed.
1 6
And the general approach would be, following the 7
discussion that just took place here, would be to give us 8
authority as far as fulfilling our NEPA responsibilities, to 9
rely on anything that the state had done that we were willing 10 to rely on.
11 It could be need for. power, and as a starter, and 12 anything else that we chose to rely on.
13 COMMISSTIONER KENNEDY :
With a hortatory 14 statement to the effect that it is the ultimate objective l
15 that we rely to the maximum extent practical on what the 16 state does.
l 17 MR. SHAPAR:
Yes.
And you see, the difficulty 18 of the present situation, if you view it as a difficulty, 19 is that NEPA imposes substantive responsibilities for 20 environmental assessments on federal agencies, and they 21 can't, in effect, delegate that to the states.
It is an 22 independent responsibility resting on the federal agency.
23 So if I follow this discussion, and I think.I 24 have, one simple way of handling it would be to authorize um a.-,,,a c=m 25 us to rely on' work done by the states in our NEPA review.
E, 66 kds29 1
Now I know that idea was considered.over in the 2
Administration when the bill was being drafted and was 3
rejected, and we passed that out for --
4 COMMISSIONER KENNEDY:
For what reason did you
~
5 want --
6 MR. SHAPAR:
It wouldn't be clean enough, and 7
there would be duplication and interfaces and stuff like 8
th at.
I 9
CHAIRMAN HENDRIE:
Well it isn't as clean cut, 10 but I think it may be much the most practical and workable 11 way.
But now if we get a halfway situation, now what becomes 12 of the exemption, you know, the present -- draft 1 and 2 say l
13 either we do it or they do it, and if we do it they have got t
14 to keep out.
15 That kept the Town of Buchanan from getting in on 16 the cooling towers or whatever.
Now what if the state is 17 17 percent and we are doing 83 percent, and now where are 18.
we?
19 MR. SHAPAR:
Clearly preemption would disappear, i
20 I
would think.
21 CHAIRMAN HENDRIE:
I would think your 22 preemption would disappear, that's right.
23 COMMISSIONER GILINSKY:
Also, it seems to me 24 that this whole process does not, while even being beneficial l wno ner, cmmy L
25 in allot of other ways, is not necessarily the greater
67 1
kds 30 I
efficiency, because it is going to expand the state's role, 2
and it is just not obvious that this is going to lead to the 3
process 'of being --
4 COMMISSIONER KENNEDY:
It just must -- yes, that 5
has to be understood.
6 COMMISSIONER GILINSKY:
-- shorter.
7 MR. KELLY:
I think there may be just one 8
comment here on a point. earlie r.
You might be able to 9
write legislation which wasn't totally open-ehded and said j
i 10 that state could do whatever it wants to in land use.
11 You might be able to come up with a formula which 12 says the states can impose reasonable restrictions and 13 conditions, but not such that it would prevent construction 14 of plants entirely.
15 That's a concept, anyway, that I think might be 16 workable.
17 CHAIRMAN HENDRIE:
This is with regard to --
18 MR. KELLY:
State authority, state and local 19 residual authority about zoning restrictions or whatever.
~20 CHAIRMAN HENDRIE:
I see.
It puts --
21 MR. KELLY:
Employs this open-ended --
.22 CHAIRMAN HENDRIE: 'Other than the full
'23 preemption of all of their --
24 MR. KELLY:
Or the full open-ended authorization a,n,c= nom..ng como.nv 25 to enact any sor t of land use policy you want to enact.
I
68 kds31 1
mean, you can dream up a land use law that, I suppose, would 2
' just prevent altogether the construction of nuclear plants.
3 And I am suggesting you might want to bar that.
4 There may be some drafting problems with that,
5 but the concept, I think, at least is possibly viable.
6 CHAIRMAN HENDRIE:
I would have to see --
I 7
would have to see a few, sentences --
eb 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 4.in.cx a.w,,no compoev 25
. Tape C 69 I.bsl MR. KELLY:
Yes, I would, too.
j CHAIRMAN HENDRIE:
Do you want to try it?
2 MR. KELLY:
I can try.
3 4
CHAIEMAN HENDRIE:
While you are doing that, would you try some languate which allows us to work the middle area 5
6 between we do it all and they do it all, and throw in some 7
good words about -- you know.
I think the good words ought to be along the line 8
j 9
that it is the intent of the legislation to assure that a --
COMMISSIONER KENNEDY:
-- maximum effective 10 jj participation of the states.
COMMISSIONER HENDRIE:
And also that it is the 12 13 intent of the legislation that a full and careful NEPA review ja be done, but that just manage to do one of them, not the whole 15 thing.
Then the specific language to deal with how you give j
16 us the flexibility to cut
(<i-le) along.
[.h j 7 COMMISSIONER GILINSKY: But you know, right now, 7
we I--fee asically with Argonne and Oak Ridge, and they cranked 18 j9 out the environmental statements, and they are using machines 20 that are highly tuned to point them out, tell them the name 21 of the plant.
(noise interference.)
22 We are now talking about coordinating with the 23 50 states.
It is a more_ complicated process.
I mean, I think 24 there is a lot to be said for having a lot of this work done Ac}Fcdotal Reporters, Inc.
25 in the states and, in fact, for each of the states developing
70
- bw2, i
I capabilities for studying their own environments.
2 But, again,,I think it is probably leading to a more 3
complicated process, at least in the short run.
Now, it may, l
4
~
in the long run be beneficial, and in the long run may 5
eliminate a lot of problems, and a lot of opposition and so i
6 on.
7 CHAIRMAN HENDRIE:
I think you're right.
dhvr COMMISSIONER GILI = h' There is no question about 8
9 it.
10 COMMISSIONER BRADFORD:
My only question would be Il concerning the long run.
But there is no question but~what pu'LL-12 state processes would be tangible than the ones we developed, 3
13 the ones you developed.
14 (Laughter.)
jknyt.L-A cv 15 COMMISSIONER BRADFORD:
(anaudibic small so I wouldn't want to say te+h4 uwa
,t 16 st es, te because-it would be 17 Nw ork or California-i e
/
d-r a
18 For all that, I think they should be good at the 19 state. level.
20 CHAIRMAN HENDRIE:
If we don't go any further in 21 the beginning than put Ryan and his crowd on the road to see 22 if we can get need for power determinations from the states, 23 and don't do any more than that for a while, I will regard 24 tha t as a useful step forward.
Ace-Fedarol Reporters, Inc.
25 By the way, Dick, the language that gives us the e
bw3 71 1
ability to cut the deal half ways between we do it all, or they 2
do it all, or any place plo g there, stid< in a section, if you can devise cne &h 034JJWi
)kb g
3 with regard to the need for power determination V[
4 along the lines state, you know -- we are authorized to accept 5
the state findings tha t it is able to make and so on and so.
6 Particularly, having in mind the basic determina-7 tion of the need far power.
8 COMMISSIONER BRADFORD: Who does that now?
Is 9
ft$
that done in-house at the NRC, or is that part of the Argonne j
10 MR. KELLY:
Well, the applicant comes in with his Q a D w itc h to $ l k Y
%. G-1f 'lSA(l?
(-i-nandibler} h, t'Y :
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number 3
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CHAIRMAN HENDRIE:
13 the cost-benefit analyses --
14' (Simultaneous voices.)
15 CHAIRMAN HENDRIE:
Tries to decide what, you know, 16 make a argument that that the power need is there (inaudible.)
17 And the Lab -- I don't know whether the Labs have a lead on 18 that now, or if that is done in the Staff.
We certainly re-19 view it in the Staff.
20 MR. SHAPAR: And we use the Federal Power Commission in part (D.
CHAIRMAN HENDRIE:
Yes.
We always cite what the 23 Federal Power Commission has said about the need for the plant 24 O
Aca Federal Reporters, Inc.
25 MR. SHAPAR: Well, we produce a member of the FPC
72
)
'bw4 i
I as an expert witness in many of these_ cases.
2 MR. DIRCKS:
And a lot of these analyses are 3
lifted from the utilities' applications, stating the need 4
for power, they've done a lot of the leg work themselves.
5 COMMISSIONER BRADFORD:
Is the need for power 6
determination is made specifically' to that plant, For example, 7
in the New England Power Pool, you ndght be able to make a W(inaf>HMPe)AY W C%
determination for an additional 1000 megawatts 8
C%srA1r x
. l,p 9
linaudi
- in 1985, but you couldn't necessarily determine
- . n n buc h'raaud ge) usaauw 10 from that that it had to be Mar, t-he t Lim 11 How is that handled?
12 MR. DIRCKS:
Well, Ithink[someonesaidtherewere 13 four questions.
One, do you need the power?
Two, do you need 14 this type of plant?
Do you need it where you say you need it?
15 Four, how do you mitigate the environmental impact?
16 COMMISSIONER GILINSKY:
Well, in fact, this review, 17 really, or analysis, really never has any affect on the 18 ultimate decision.
19 COMMISSIONER BRADFORD:
You have never turned a Q20 plant on the basis of --
l' 21 (Simultaneous voices.)
22 MR. KELLY:
Well, it has been litigated fairly 23 vigorously a few times.
Niagara, Mohawk --
24 MR. SHAPAR:
It's been tested, but it has never Aco-Federal Reporten, Inc.
25 been turned down.
Of course, it's the whole plus side of the
obwS*[
- 73 1
cause-benefit equation.
By the way, it is not strictly a 2
need for power, it is really a need for a plant, because you 3
may be relling processed steam, or something like that.
4 COMMISSIONER GILINSKY:
I think there is a fair 5
amount of sham in this cost-benefit equation.
6 COMMISSIONER GILINSKY:
And also the type of 7
facilities, I think it is --
8 CHAIRMAN HENDRIE:
The reason I would like to get 9
rid of it and get us authorized to accept that 'a plant is
~
l 10 needed on the basis of a state certification, certificate of 11 necessity or corresponding findi.ng by the governor, is just 12 that it is such an open-ended question.
13 You know, we could argue forever about any given 14 application with regard to whether or not this or that set 15 of conservation measures would suf fi7iently depress the 16 demand. Certain other sources could come in. Any time you are 17 talking at 10 or 12 years and talking about a specific plant, 18 your ability to prove either that it is needed or not needed 19 is really --
20 MR. SHAPAR:
Yes, yours or the local --
21 COMMISSIONER GILINSKY:
Well, in fact, what we 22 are doing is turning them back.
23 CHAIRMAN HENDRIE:
Well, turning it back to the Af({ 24 state power c,ommission i primarily --
AesFedst1 5
orters, Inc,
,,gpgg 25 Mn. S::APAR:
here is something to be said for that
,6&
74
.b.k7-for another reason. -The decision whether a particular state wants to go on a 25 percent return margin or a.: ten percent 2
3 return margin, is a better angle $71 to make, especially since the same power commission makes that decision.
They 4
/l are going to have to set the rates --
/
5 vih44.
CHAIRMAN HENDRIE:
I am not saying that they know 6
7 that -- I'm not saying that there isoa superior wisdom there.
I am saying, you know, this is a tough call to make.
There 8
are groups of people in each state who have been and are 9
asked to make the call anyway, and I find a lot of difficulty 10 in having us argue independently about the same question.
11 COMMISSIONER GILINSKY: Do you need legislation 12 13 to do dat?
CHAIR %N HENDRIE:
I think so.
I think the courts
}4 have held that we, by God, have got to step up and make the 15 need for power as part of our -- haven't there been a couple 16 of cases along this line?
17 MR. SHAPAR:
Well, I think that NEPA, as interpretc'd 18 19 by the court, certainly, pose an independent obligation on federal agencies that are dealing with the proposal, it's 20 our licensing' proposal, to do the job by themselves.
They 21 22 can't delegate it.
1 MR. KELLY:
Our appeal board has said so explicitly 23 24 in two or three cases.
Our office has recommended no i
- Ace Federal Reporters, inc.
l 25 review, saying they thought they were right.
..bw8 75 I
MR. SHAPAR:
Well, that is the reason they amended 2
NEPA on the road question, was to allow the Federal Government, 3
in connection with their road program, to rely on the state d
analysis.
~
Onc.ol 5
MR.H ELY: Well, Lthat was Calvert Clif f s, wasn ' t it, 6
where everybody ran -- you couldn't accept their statement, 7
water quality certification, you had to go back and do your l
@/1 9
/
MR. SHAPA :
That is one of the many cases.
OtsC A!
10 MR. MFrbtY:
That was the thing that threw every-II thing into turmoil.
I2 COMMISSIONER BRADFORD:
Where does the appeal from 13 the states NEPA analysis lie Is that in the state courts?
Id MR. SHAPAR:
I think that the bill requires access 15 to the federal courts.
16 COMMISSIONER BRADFORD:
Supposing we ourselves 17 were really discontented with the state analysis, and thought 18 it was a shoddy job, is there anything -- First of all, is l9 there any reason why our feeling about that should matter?
20 secondly, if they do, is there any [ mechanism whereby we
- And, R$$wt b cle1 cWVb)j%
f>, [f 2I can turn it back to them> (snaudtbTe)
.does someone then have n
22 to appeal the state determination?
23 MR. SHAPAR:
I think under this version of the 24 bill, the answer is we are expected to like it or lump it.
Ace Fedreol Reporters, Inc.
25 The state program was developed pursuant to the
76 bwl0 1
federal guidelines.
I guess the putative evaluation is that 2
they are expected to do the jcb properly and will not be 3
second-guessed.
Now, of course, you can quarrel about that, 4
as a matter of policy.
5 MR. KELLY: That is an explicit provision on page 21.
6 They have E-it under approved programs, that's that.
7 MR. DIRCKS:
Some states would not only determine 8
the need for power, but the type of facility that would be, 1
9 nuclear or coal, they do the economics. cost-benefit h O MM 0
10 there.
11 CHAIRMAN HENDRIE:
Yep.
12 MR. PEDERSON:
But you could find that it was 13 a faulty decision because they didn't " file ~anyeguidelihes;,
(
14 you could terminate.
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I guess one thing that hasn't been 17 mentioned, under the bill the way it is constructed now, there 18 is no way of knowing how many states would opt into the 19 program.
They range from none to any figure.
20 COMMISSIONER BRADFORD: Is it reasonable to assume 21 that most of the agreements states /probably..would?
22
- (Simultaneous voices. )
23 MR. SHAPAR:
-- the considerations that revolve 24 around becoming an agreement state and nuclear power plants Ace-Fedsrol Reporters, Inc, 25 in the context-of this legislation, is so different I wouldn't
l
. byl.l 77 1
know how'to read it..
' CHAIRMAN'HENDRIE: Well, wait a minute --
l l
j
-(Simultaneous voices )
MR. PEDERS I wonder, as a practical matter e
I:am just curious,..how many states might opt to enter thisl 5
6 l
environmental review in whole or part and turn around and 7
take the Fed' money and go 'to the very' labs'that we use now,
[
and just'use:them. 'And:wouldn't that, in fact,'if they did,'
0 9
mitigate some ofEthis short-run disruptive n
hat we'might 10 have.
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Let'the governor's brother-in-law.coordinato it.
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MR. DiPCKS:
Well, need for power, I don't think 14 they go to'the lab --
(Simultaneous voices.)
MR. DIRCKS:
Because they are not going to have 4
i I7 that expertise, and how'r ay nuclear power plants will you 18 cover?-
19 (Simult'aneous voices.)
~
. CHAIRMAN HENDRIE: -Okay, look,~aius6ful discussion 21 7.think, and I.think-'also we are' kind of running.down on it 22
- about two hours at crack --
3I
'23 I
MR..-ruvanap One'other thing' worth mentioning, 24 IN
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rended funding of intervenors.provisinn'which we put in, that-
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'I will, I am sure, b.aw some discussion'.
7 CHAIRMAN HENDRIE:
Ah, yes.
[
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,COMISSiONER KEMEDY:
Lienlt-provision, l
3
}
1 because-it.. involves not only the hearing' process, it' involves,
4 the licensing process, because I assume from its ~ incept. ion, 5
nd includes, as well, rulemaking.
j-6 CHAIRMAN'HENDRIE:
Yes.
7 00""*
- NE"
' Y**
8 l
a certain argument for having it there.
9 In-ther words, if you are going to review 10 standard plants, in one place --
jj COMMISSIONER KENNEDY:
I guess I am not so con-12 cerned'with rulemaking, as I am with the. entire process, the i
13 entire regulatory process, the licensing process, because if 34 y u start at the very beginning of the process, what are A
15 i
saying,.are we all wing the intervenor, funding baars, hI/
16 whichmeansgatA"t%ytocome
'N in at the very beginning,.
4 37 when the staff gets the app'.ication, starts to work on the 18
' application. Whe'n does he start?
Does he --
39 CHAIRMAN HENDRIE:
As soon as it is noticed, I 20 would assume.
21 It says,."The Commission shal'1, upon. request, pay 22 f r the cost of intervention of any party, including attorneys 23 fees, i'n any-hearing or the regulatory review' process after 24
' AceJeds,ol Reporters, 'rs 25
-due ' consideration of the, proceedin9 criteria established ~ by
7_
-bwl3.
79-1
'theLCommission by rule'or'regulationi" 2
(COMMISSIONER _ KENNEDY: - Now, does that mean 'he 's
)
'l L3
. going tof be part of the staf f discussions with the Applicant q
4 thro'ughout?
-5 COMMISSIONER GILINSKY:
Well, maybe, we could
'6 accept parts of the. review 'done by him.
l 7
CRAIRMAN HENDRIE :Of the need for people., It sounds
~8 a; trifle broad.
It sounds as though all costs --
j l
9 COMMISSIONER KENNEDY:
Is that likely to speed'the
-j i
i
'10 licensing process?.
-11 CHAIRMAN HENDRIE:
It,might eliminate the need.
12 for a number'of things.
13 COMMISSIONER BRADFORD:
The only way'in which it 1
s 14 might,.if,an intervenor raised issues effectively through 15
'our processes,-they might be less inclined to appeal:. Son the-16 other. hand, it is equally possible, that if they had the.
17
~ money,'theyLwould be:more inclined to appeal.
i
-18 I don' t knat.
19 COMMISSIONER KE2NEDY:
In the-process, we have the
-20 Lguestions going.out to lthe' applicant from the staf f.
Is 21 thisLfellow going to.be authorized.then, since he is partici-L22 pating in this process from the-outset to include.his
)
.23
-questions tol applicant?
In which' case, how many questions 24
.'is the applicant 1goingito be answering?-
! Ace Federal Reporters,.ine.
25
_MR. DIRCKS:
Well', a lot.of the environmental
-l u
U '
.l 1
bwli 80 I
activities have been in the environmental part of the review 2
process, the need for power, the effect on land use, et cetera.
3 That may all go~back over il a the state.
4 COMMISSIONER BRADFORD:
Yes, but is the bill clear -
5 that we couldn't be requested to fund an intervenor in the 6
state proceeding?
7 MR. DIRCKS:
I don ' t know.
I didn't see the state 8
submission.
9 MR. SHAFAR:
I think the intent is, and I think
[ f 10 the language is clear, that it is our Commissioner l
11 Kennedy raises the point that'I.think is good referring to 12 our review process, and that would, seemingly, as written, be 13 broader than the actual hearing or proceeding.
14 COMMISSIONER KENNEDY:
Yes, it is specifically, it 15 is separated by commas.
16 CHAIRMAN HENDRIE:
The implication of the 17 "Camission shall pay for 'the cost of intervention of any 18 Party, including attorneys' fees," you know, if I didn't like 19 the plant next door, why I would go out and hire Stone and 20 Webster, if it was a Sargent and Lundy plant, and they would 21 say, "Well, you know, we:wouldn't line up arguments for you 22 for less than $3 million."
Say, " Good, send the bill to them.'
23 And I wonder really, you know, obviously, that 24 seemt an extreme case.
Acefeds,ot Reporters, Inc.
25 COMMISSIONER GILINSKY: Doesn't it say anything
bw15 81 I
about NRC hearings?
2 CHAIRMAN HENDRIE: Subject to due consideration of 3
procedures and criterias established by the Commission by 4
' rule or regulation.
And so on.
~
l 5
MR. KELLY: Well, we are still funding state 6
environmental revien programs under this bill, aren't we?
7 COMMISSIONER GILINSKY:
I believe so, yes.
l 8
MR. KELLY:
And i t says that those programs are l$tbY 9
supposed to have provisions to assure Marly public partici-10 pation, and I assume the state will come in and say we are 11 going to fund some intervenors, and we need some of your I
\\
j 12 money to do it.
Yli L '-
13 COMMISSIONER O W N&KP:
Under thih 4f' 14 arrangement.
4 I
15 MR. KELLY:
Under the grant system that this i
16 thing involves.
l k'bymtJ7:
CHAIRMANME"DRI@}:
Under this bill.
l 17 l
18 MR. KELLY:
Under the grant.
19 MR. SHAPAR:
Well, you can-control the terms of
(
20 the grant.
21 CHAIRMAN HENDRIE:
In previous discussions of 22 intervenor funding by the Commission, were there ever 23 discussions of sort of draf ts of criteria that might be 1
j 24 established and so on?
Aie-Fdtrol Repoders. Inc.
I 25 COMMISSIONER KENNEDY:
^ntter of fact, we i
l l
82 bwl6 established some that were to be applicable in the GESMO j
2 proceedings and, indeed, were applied in the GESMO proceedings.
CHAIRMAN-HENDRIE:
But were there others considered 3
on a broader basis than just the specific GESMO proceedings?
^
4 MR. KELLY:
No, because the Commission never got 5
beyond really the concept of it. We never got. down to the 6
7 nitty-gritty mechanics.
i COMMISSIONER GILINSKY: Well, there was the 8
Comptroller-General with --
9 mrv SHAPAR:
You have got a piece of legislation, 10 11 though, that was surf aced, I' guess, a year Or so ago, the ff'12 so-called"KennedyBillfthatIbelievehadcriteriainit.
And, of course, I think there are all kinds of.
13 criteria in the study that was developed for the Commission 14 in which there are a bunch of options presented.
The 15 Commission hired this study by this --
16 COMMISSIONER GILINSKY:
Did that have criteria?
j7 MR. SHAPAR:
I think they did.
jg MR. KELLY:
Well, they have had example.
They 19 have got the NTC bill. There are a lot of criteria around.
20 21 I am just.
I am just saying that the Commission at the Commission level didn't focus on specific criteria in its 22 e nsideration of.--
23 CHAIRMAN HENDRIE:
What I am getting around to 24
- Actf edsrol Reporters, Inc.
is that I wish somebody -- I don't -- maybe several would 25
bwl7-83 4,
4 I
please make a special study of this section on intervenor 2
. funding.
3 I have a feeling that it was drafted by -- in effect 4
by parties who would hope to receive such funds.
And that's 5
fair enough.
I see no reason why they shouldn't see their 6
language, you know, their druthers in language considered in the draft, as well as anybody else's.
But I wondered --
7 8
It struck me to be very. broadly drawn.
The discussion about 9
funding for getting right into the regulatory review procedure, 10 and the. language the Commission shall pay the costs of inter-Il vention of any party -- the language seemed to me to reach 12 to --
13 COMMISSIONER KENNEDY: Well, this is essentially I4 the. kind of language that I have seen before in previous 15 bills, leaving to the Commission the responsibility of 16 establishing criteria.
And it goes on and says "certain i
I7 conditions, certain criteria shall include requirements to-18 establish that the intervenor's interest would not occur or 19 be expected to be significantly limited in the absence of 20 funding.
6 2I MR. PEDERSON:
Moreover, it says the payments i
22 shall be made following the proceeding, which implies that 23 there will be an evaluation of what he actuall cont ibuted.
T$ntAL U Vm Abdif)Nddl fM[ Slt6 ut:
i
(
COMMI SIONER KENNEDY: These are essentially the s
ActFedtrol Re ers, Inc, 25 same kinds of considerations which --
l
' bwi 8 -
84 (Simultaneous voices.)
)
when it reached its COMMISSIONER KENNEDY:
2 wn nelusions in the GESMO matter.
3 MR. SHAPAR:
Whichever way you go, I think that 4
the drafting can be vastly improved in that particular provision.
6 I
i Whichever way you V 7
s suggests excluding 8
lawyers' fees.
9
"^ ^
- 10 (Simultaneous. voices. )
jj R. KELLY:
Do you want us to pull together 12 s mething on criteria?
13 CHAIRMAN HENDRIES:
Yes, I think it would be g
very helpful for you to collectively sort out who ought to take the lead on it.
But it struck me as being very broadly g
i drawn, and I thought I would like to see a version which 37 we might prefer if we are going to have what I suspect will 18 be the extremely onerous burden of establishing criteria Wh.cf n
' p\\
and then making these blasted determinations about contributior s 20 have been.
g If one has a f air idea of where one might want to g
If there is to be intervenor funding, what the rules of 9
23 the game are which one would like to see.
24 Aco-Fedtrol Reporters, Inc.
Then, to the extent we can get it laid down in the 25
,bwl9 85 j
legislation, we're going to be relieved.of having to fight 2
about it, as we attempt to establish those rules later on, I 3
would think.
4 So, I would be interested in seeing something.
5 Now, the base question of whether or not, we 6
should, in fact, support a section on intervenor funding, 7
I think that's one which, as a Commission, as a group, well, 8
we will have to come to grips with. But that is no different 9
than some of the other sections, so --
10 But I think it would be helpful for -- I know 11 in making up my own mind, how I would like to come down on 12 it.
p 7
13 If you say this language or nothing, that may be i.
'/< fM
/
14 too narrow a choice that you are offering.
15 Okay. The answer, then, I might tilt toward --
16 if there is some other language that seems to me to more
]
1 17 carefully define what we are talking about, the scope and 18 magnitude sought, I can say, " Gee, you know, that overcomes
{
19 my concerns, could vote for that."
So I think some alternate --
/
20 MR. KELLYi There has been some serious thought 21 on the idea that we should pay for experts but not lawyers' 22 fees.
23 CHAIRMAN HENDRIE:
Well, I have no objection to 24 paying for lawyers.
Ace Fedirol Reporters, Inc '
Jf[ff4M(th 25 MReKEE%: What's the basis for --
86
.?'
bw20 1
CHAIRMAN HENDRIE:
I don't think engineers are 2
any more entitled to make a living off his enterprise than 3,
lawyers --
4 MR. KELLY:
In terms of need.
There happen to be -
5 lawyers around. Lawyers are showing up at our proceedings, 6
experts are not.
7 So I think that is the basic point.
8 MR. PEDERS N:
I was just going to say with respect 9
to the intervention in the licensing proceedings, I think it 10 is too broadly drawn, but you might take a look at the i
11 Denton Report or something which talked about,.you know, the ltr
[ JMf 12 need for earlf contact between the applicant and the 13 Regulatory Staff with public paricipation in it.
Think in 14 terms of how it might be more limited, but --
15 CHAIRMAN HENDRIE:
I regard that as animportant 16 aspect of things we could do, but not related to this 17 provision.
18 MR. PEDERSih:
It may not be.
19 COMMISSIONER KENNEDY:
That, of course, is what this is aiming at. hmte N td
- p C <
' A-20
/
YNf3 You may(20not see the relationship, j
i: p 21 MR. PEDERS 22 but I.am suggesting others have.
23 COMMISSIONER' KENNEDY: -That is why that 24 par ti cu] ar --
Aes Fedsrol Reporters. Inc,
,e 25 MR. PEDERShN:
I wasn't advocating, I was telli ng
bw21' 87 j
you there is a link.
CHAIRMAN HENDRIE:
I see.
2 3
-COMMISSIONER KENNEDY:
It is taking us a step --
4 MR. PEDERS 1:
That is right.
COMMISSIONER KENNEDY:
-- that we haven't taken 5
6 yet.
We just have asked whether we should have public 7
participation earlier in the process.
I, for one, think there are strong arguments for saying yes, but one also has 8
9 to, I think, ask himself, if we do, is the net effect going 10 to lengthen or shorten the process.
11 I'm afraid the answer is, however much one would j
12 like it to shorten the process, it is not, it is going to 13 lenghten the process.
h4eebt i
ja And, you know, pfweunderstandthat, and if we,do, p
15 than we can go forward.
But that is not consistent with the objective of 16 the bill.
17 18 CHAIRMAN HENDRIE:
Okay. With regard to scheduling.
19 Tomorrow morning we meet at 9:00 to deal with budgets. We 20 have some further information and discussion with I&E, NRR --
ReclampsfromELDandOfb.
A-21 MR. KELLY:
22 CHAIRMAN HENDRIE:
Howard and -- That's right, 23 you never got a chance.
24 MR. SHAPAR:
Give me four people and I'll drop Ats Fedical Reporters, Inc.
25 off the schedule.
"5,-
88 l'
bw22 1
(Laughter.)-
2 CHAIRMAN HENDRIE:
I wish we had known that,
.3
/we-.'have have had'him for two a day ago.
Ncw, he's up to four.
4 COMMISSIONER KENNEDY:
It's all part of his 5
-process o'f elimination.
6 (Laughter.)-
'7 CHAIRMAN HENDRIE:
And then at the end of the 8
morning,.we have'a session on that famous 7/10ths of'a gram, 9
people are trying to export.
10 COMMISSIONER KENNEDY:
I'm not even sure that is 11 an issue. 'What'is the total uranium content?
bsbnexemption (inaudible.)
2 I
l-13
' COMMISSIONER KENNEDY:
Is it, or does it. turn out
]
14 beca'use.of the' assay.that it is really source material?
15 COMMISSIONER GILINSKY:
I thought it was low 16 enrichment, that's the problem.
17 CHAIRMAN'HENDRIE':
7 percent. Anyway, it is on 18 schedule for tomorrow morning.
19 Now, tomorrow afternoon, we have a short session,
'20 hopefully, an hour or less, to deal with.some adjudicatory 21 matters, sort of, Jim's collection of things the Commission 22 lbetter make a decision on, to review or not to review certain L23 things.
Okay?'
Because the time is running on our -- and it 24 will: expire,what:
the'29th?
! Ace Fedarol Reporters, Inc 25 MR. KELLY:
'Well, let me just say, I think we are
,e
hw23 89 1
pressed. to get all that stuff done in an hour, because there 2
is a lot-of it.
If we have to, we have we can vote to extend 3
the stuff we don't get to.
I hope we won't have to.
4 CHAIRMAN HENDRIE:
Well, let me say, the front 5
part of the afternoon we got that session.
And then we 6
have another session on the.draf t legislation aimed for the 7
back part of the afternoon.
8 Thursday morning we're booked up solid --
9 COMMISSIONER GILINSKY:
That's tomorrow?
10 CHAIRMAN HENDRIE: Well, it was originally on 31 tnere tomorrow. What I am gettin,g ready to ask you is, 12 should we delay that session --
13 COMMISSIONER KEQNEDY:
We can continue going
'/
14 through this, anditwillkneprocessofguidancewhilewe j
15 are going through the rest of --
16 CHAIRMAN HENDRIE:
Further discussion.
17 COMMISSIONER KENNEDY:
Don't you think?
18 COMMISSIONER GILINSKY: We have never gone through 19 some of the basic provisions in the previously-submitted 3
i 4,u q u
3 F(
20 bill, dealing ith the recent add-ons --
/ -
/
21 CHAIRMAN HENDRIE:
That's true.
22 MR. SHAPAR: As a matter of fact, you haven't covere d 23 all the changes between the last draft and this draft yet.
24 COMMISSIONER KENNEDY:
We have a memo from AcsJedsrol Reporters, Inc.
25 Mr. Kelly concerning a-number of other suggestions that have
90-bw24
'l been_ posed', which may or may not find.their:way into this or
~
l 2
other accompanying l legislation, which I suppose we'have to
/
3 h<tb f
think about -- we don't have to respond to itlirrfihla,
but 4
least we'ought to be focusing on it, because if we,'I must -
l at 5
say, in running down that, I.would find those about 180
~
6 degrees from the objective of the' legislation that'we have i
7
'been dealing.with,.as far as I can tell.
8 So I am not exactly sure what it-is we are"t ing..
A pT he If we can clean this other legislation up N i.. _ l c) p 9
to do.
and then we could h Y see all these other things 10 8
II surface, the net effect would be zero.
12 MR. KELLY:
You might want to have a feeling I3 of whether there is any st m behind those ideas.
I'didn't 14 get the impression 'yec tc: day aE that meeting that (inaudible) 15 pushing his ideas, some of them were pretty far out.
t 16 CHAIRMAN HENDRIE:- Like what?
I7 MR. KELLY:
Oh,'like what I call a special IO prosecutor to investigate the NRC.
IE (Laughter.)
y t4'A4 20 MR. KELLY:
'I guess -- maybe Mr. Jaworski will p
2I be available to come over and clean us up.
22 (Laughter. )'
r 23 MR. KELLY: That's in there.
the
( b 6_.c' liability of Price Anderson.
Tightening up variou 24 s
cr. u _
- Ace Fedsrol Reporten, Inc.
25
.gther^---
l i
'bw25 91 (Simultaneous voices.)
j COMMISSIONER KENNEDY: A few odds and ends on 2
3 siting criteria.
Firm criteria for population limits. That a
means power plants not to be approved for areas where 1
..J,
GM&L&
5 Populations that exceed a certain number of persons per b
6 square mile. We would have to determine that by rule within a
//
7
- year, u4 8
We have criteria for potentially hazar locations.
9 Sites not approved in potentially hazardous types of sites, 10 with the types to be determined by us, again by rule, I 11 presume.
12 Many natural resource areas.
There would be no 13 sites permitted in natural resource areas or near valuable 14 natural resource areas.
It doesn't define that.
15 MR. KELLY:
I think I cited Bailey in that regard.
16 CHAIRMAN HENDRIE:
It sounds to me like an exercise 17 we once did on airports, worrying about airports. We said, 18 well, let's get out a map and put some people to work sketchina 19 you know, marking red for the runways and then the big 20 area off the end of the runways, and then the air corridors 21 to see what's left. If you look what's left, there isn't 22 anything left in the Northeastern United States.
23 COMMISSIONER KENNEDY:
Well, :here are a couple of 24 things left.
But they 're freeways, densely covered with Ace-fedsrol Reporters, Inc.
25 traffic.
e
'i. bw26 92 1
(Laughter.)
2 CHAIRMAN HENDRIE:
But those things -- I don't 3
think they --
4 MR2 KELLY:
If you wanted me to, I could make a 5
phone call and see if that is moving anywhere.
I said in that 6
little note that Liz, Schermer was going to send an options 7
paper around for comment, maybe tomorrow or the next day, 8
if she sends it out -
--s l
s 9
CGieuoatudER-KENNEDY I don't think you ought to
/
spend a lot of time debating.
/
11 i
CHAIRMAN HENDRIE:
I thought they were gring to try 12 to settle down on that tomorrow.
13 MR. KELLY:
Well, that was her target. Whether 14 she will meet it or not, I don't know --
15 CHAIRMAN HENDRIE: Why don't we wait and see what
\\
comes up.
In the meantime, it looks to me as though it would 17 be useful to continue discussions.
Do we have a sufficient discussion group at hand?
Okay.
'9 MR. KELLY:
I guess I'd feel if you want to get 20 into more detail with this NEPA thing, for example, there is 21 a guy in my office who knows it better than I do.
22 CHAIRMAN HENDRIE:
Okay.
Now, how about --
23 Lee, you and Bill are representing a set of -- You are 24 9
Ace Fedsrol Reporters, Inc.
25 i
sitting here, and I wonder if there is an adequate --
'sbw27 93 1
MR. GOSSICK: Well, I can do either one of two 2
things. We can get~you comments like we did before on the 3
earlier version. They won't be anyways near as extensive.
4 I've already got some in from some of the staf f, and they 5
tend to be much more limited and --
6 CHAIRMAN HENDRIE:
- Good, s
7 MR. GOSSICK:
-- to certain points.
8 CHAIRMAN HENDRIE:
There was some comments'in 9
the previous package -- well --
10 MR. GOSSICK:
We didn't want to suppress dissent 11 or --
12 CHAIRMAN HFNDRIE:
Right.
13 MR. GOSSICK:
I think depending on how far you 14 want to get into, you know, discussing the finer points of 15
[.l $
j [lk
/
the bill.
You might want to think Ed Case and possibly somebody from State Programs, since they are involved in this 17 thing to a fair degree.
18 CHAIRMAN HENDRIE:
Okay.
Now, the Standards, the 19 Inspection, the Materials people 20 MR. GOSSICK:
I have asked NMSS for their views.
21 They've been through it.
They don't really have anything to 22 offer.
23 Standards, we got their --
24 Acdedsrol Reporters, Inc.
CHAIRMAN HENDRIE:
They are licensing so few 25 facilities --
94
^bw'28 1
MR. GOSSICK:
So, if you want to hold it down, 2
yet maybe broaden the bill, I think that would --
3 COMMISSIONER GILINSKY:
What about -- Has Harold 4
been --
5 MR. GOSSICK:
Yes.
6 COMMISSIONER GILINSKY:
I would think that somebody 7
who knows the siting area would be good to have around there.
7 4#SM Nk!0: Why don't you bring Case, Denton and somebody Ik 8
9 from the State Programs.
I hate to have meetings that are 10 so tight.
They are efficient for discussion, because there 11 are few of us enough so that mos.t people could get a word in 12 from time to time, but I hate to appear to be shutting other 13 people out of the discussion.
And if they wanted to bring 14 a guy or two to listen and make a few notes for later dis-15 cussion, why --
16 MR. DIRCKS:
State Programs are kind of weak,
/'
Ryan'sjfIoutoftown.
Ryan'had been so deeply involved in j,hl^
17 18 this.
I think Denton could cover the state areas very well.
19 He's been working very closely with them.
i 20 MR. GOSSICK:
Why don't we just bring Case and
..to:
21 Denton down.
22 C:lAIRMAN HENDRIE:
Now, what should we try to 23 cover at the session tomorrow, which is likely to be, after 24 your remarks on the adjudicatory thing, like 4:00 to 5:00 or Ace Fedsrol Reporters, Inc.
25 5:30, or something like that?
95
~bw29 j
MR. KELLY:
1:30 to 2:30 is the adjudicatory, 2
I believe.
3 CHAIRMAN HENDRIE:
Yes, but you just told me that was going to run a little longer.
5 MR. KELLY:
Well, it might.
6 CHAIRMAN HENDRIE:
People will have had an 7
additional 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> to read it exi mull.
Okay?
8 What we might do is to have a -- see what 'the new 9
parties to the proceeding have to offer and further thoughts 10 from Jim, Howard, the Commissioners.
11 And then I think we dught to sit down and start 12 thumbing it a page at a time.
That will compell us to read 13 it all the way through.
14 And how long this is going to take us, I don't 15 know, but I must say I am not very happy with the timing.
16 1
It's, you know, it's coming in and we're all 17 jammed up against budget review in ways that are tying us 18 up in knots, and Peter and I are maintaining homesteads in 19 Operations -- however, I suppose it will work.
20 COMMISSIONER GILINSKY:
This draft, as I take it, 21 has not gone out to the public?
22 CHAIRMAN HENDRIE:
They tell me it has gone to 23 the Governors, and it is the stated opinion that anybody that 24 wants it can have it. So, if any of our friends call up and j
- Ace-Fedsrol Reporters, Inc.
25
- say, "I couldn't get ahold of so and so," why, say, "Our
bw30 96
+
'I Xerox machines work fine and, you know, make 1000 and send 2
the damn thing out.
3 MR. SHAPAR:
Including the office of the Governor 4
of California has called.
5 CHAIRMAN HENDRIE:
Already?'
6 MR. SHAPAR: It's on the Hill.
7 COMMISSIONER KENNEDY:
Everybody thinks it's our 8
bill.
9 CHAIRMAN HENDRIE: Well, you know, as it shifts, 10 it changes, and we make a few suggestions here and there, why, 11 you know, it may get to a point where we will say, " Gee, that 12 looks good enough to capture."
And then we can capture it.
13 I have a notion that the sponsors would be glad to 14
.let go of it.
15 (Laughter.)
16 MR. KELLY:
That draft that you spoke of, is 17 that going tomorrow afternoon, or do we have a little more 18 time to do that?
Might be able to bring something in.
Ib long hA v)716 M"[$4.
dh
' pf! 19 explanatory.:. memos; '
20 CHAIRMAN HENDRIE: Why don't you bring in a rough 21 cut of the language, just double-spaced on a piece of paper, 22 if you can manage it, and, as you say, never mind memos 23 explaining the thing.
We can look at it, and if we hate, 24 we hate, why, we will give it back to you, and destroy the
, AceJederal Reporters, Inc.
25 copy. And the same over here, okay.
11 -
hw31-97 1
COMMISSIONER KENNEDY: After making several Xerox 2
copies for the record.
(Laughter.)
4 CHAIRMAN HENDRIE:
Okay.
Now we need to be S
reminded of our rights and privileges --
6 MR. OSTRACH:
I suggest that you treat this 7
transcript the way you have previously treated other 8
transcripts of meetings on this topic discussion of the 9
licensing legislation. That it be withheld until the end of 10 the -- until the enactment of the bill, or until the end 11 of this legislative session, wne'n, the transcript being 12 reviewed by the Office of the General Counsel, to see if there are other reasons why portions of it should continue 14 to be withheld.
15 I mentioned last time possible discussion of 16 personalities.
I didn't hear anything like that, but certainly, it is useful to be reviewed at that time.
18 CHAIRMAN HENDRIE:
Well, that was in connection 19 with budget matters, but the same sorts of considerations 20 conceivably could arise here.
I don't see any objection to 21 popping it out at sucn time as the whole thing, you know, 22 as the law passes in some form or other.
23 I think it is helpful if we could stamp a date 24 on these things.
Ace Federal Reporters. inc.
tW 25 MR. OSTRACH:
If the law passes by-the end of this
'98
.e bw32
)
session -- I guess it would be this Congress, not this session, 2
because'I believe the bill survives to the socond session.
3 I don ' t k now.
4 CHAIRMAN HENDRIE:
Hill passage or end of the 5
current time.
6 (Whereupon, a t 5 : 25 p.m., the meeting was EC adjourned.)
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Acs-Fedirol Reporters, Inc.
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