ML20147C912
| ML20147C912 | |
| Person / Time | |
|---|---|
| Issue date: | 09/21/1977 |
| From: | Gilinsky V, Hendrie J, Kennedy R NRC COMMISSION (OCM) |
| To: | |
| Shared Package | |
| ML20147C904 | List: |
| References | |
| REF-10CFR9.7 NUDOCS 7812180447 | |
| Download: ML20147C912 (126) | |
Text
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o jeri 1l UNITED STATES NUCLEAR REGULATORY COIMISSION CR 4961 i
l BCD/DORA 2
COMMISSION MEETING I
3-ON 4
REFORM LEGISLATION 5i 6
i 7
t 8l Room 1141 1717 H Street, N.N.
9 Washington, D.C.
10 2:55 p.m.
Wednesday, 21 September 1977 j
11 Pages: 1 - 126 12 COKMISSIONERS PRESENT:
13 JOSEPH M.
HENDRIE, Chairman
- l RICHARD KENNEDY, Commissioner 14 VICTOR GILINSKY, Commissioner PETER BRAbFORD, Commissioner 15 DISCUSSANTS PRESENT
16 EDSCN CASE 17 !
HOWARD SHAPAR i
18 '
19 20 habuYportm.
2I 444 N. Capital Street om Washington, D. C 2000; 22 23 The initials appearing in the lefthand 24 margin, i.e., WW and JB, indicating e wm nermners. ine. corrections are those of Wm. White 25 and Jake Brown, Office of the Secretary.
Reviewed 11/30/78 781219O z/9'7
e o
b JD-4961 1
PROCEEDINGS 2l CHAIRMAN HENDRIE:
Okay, this is back on the beginning, jeril 1
3 back on the findings.
How do some of these strike you?
Jl COMMISSIONER GILINSKY:
Are we looking at Howard's l
5 alternatives?
6!
CEAIRMAN HENDRIE:
Yes, I 've got the alternatives.
7 COMMISSIONER GILINSKY: I notice " reasonable assurance" in 8
every one of them.
Both pages.
9 CHAIRMAN HENDRIE:
He feels strongly about it.
10 MR. SHAPAR:
That's what the regulations say now.
II CEAIRMAN HENDRIE:
I think that whatever --
i 12 1 COMMISSIONER GILINSKY:
" Reasonable assurance"?
l 13 MR. SHAPAR:
Yes.
i l
Id !
Just making an honest man out of you.
15 COMMISSIONER KENNEDY:
Reasonable assurance of what?
16,
MR. SEAIAR:
That the reactor can be constructed and l
17 ocerated safely.
18 COMMISSIONER KENNEDY:
Are they going to ask for 19 more than reasonable assurance?
20 MR. SHAPAR:
Yes.
21 COMMISSIONER KENNEDY:
Can anyone get it?
22 l MR. SHAPAR:
No.
23 COMMISSIONER KENNEDY:
Then it no longer becomes 24 reasonable.
4
.re.re nenon.n. inc.,
25 i
CHAIEMAN HENDRIE:
That sounds like thev discussed l
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3
+
1 i
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dialogue before they came in here.
l 2i COMMISSIONER KENNEDY:
It's only that these lawyers I
,4 3l have been training me.
l i
I i
4 CHAIRMAN HENDRIE:
Well, I think that you go away 5
from that language and qualify it a -- yes, go ahead.
i 6
COMISSICNER C TNSKY: It seems to me that there are i
7 two separate question.
One is how high you set your safety l
i 8
levels, your goals, whatever.
The other is what chance do you !
l 9l have that they are being met.
i 10 CHAIRMAN HENDRIE:
That's certainly true.
I think it:
might be sort of an untenable decision to say that we have veryl 11 12 I high standards, and then at some point, mushy assurance that 13 they are being met.
You're really in an untenable position.
i 14 Irthink what you say is that you have set standards which are 15 stringent enough to provide an adequate level of safetf.
16 Indeed, this level of safety provides reasonable assurance that 17 these facilities can be operated without undue risks to the
\\
18 health and safety of the public and adverse ef fect on the 19 national defense and security, and so on.
And that's the 20,
complete formal configuration in which we have to oparate.
i 21 COMMISSIONER GILINSKY:
Well, but " undue risk" has i
22 l got to relate t some kind of standards.
Somewhere there has l
23l got to be a sta2 ard, i
24 CHAIRMAN HENDRIE:
Well, it's a judgmental standard
- , :.rmere nnenm, one, 25,
it has been ever since 1947, or
'6, or
'8, or whenever we ger I
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the Act passed.
2l COMMISSIONER GILINSKY:
That's right, but then --
\\
l 3i well, I guess, you know, then earlier --
l 4'
CEAIRMAN HENDRIE:
Look, let me -- I wonier whether 5
this had some of the thoughts -- think about the following as 6!
language in alternative B.
"The NRC should exercise its 7
independent statutory responsibilities so as to require high 8I standards for safety that provide reasonable assurance of I
9l the protection of public health and safety and the common i
10 l defense" and so on and so on.
11 I think you dare not go away 12 '
from " reasonable assurance of protection of the public health 13 and safety."
That is the basis on which, in fact, we have i
14 l regulated this industry for lo these many years and to have i
15 other language which will carry dif ferent implications in the --
16 you know, come in now on a statutory basis --
17 COMMISSIONER GILINSKY:
I guess I unders tand 18 reasonable assurance as these standards being met.
What is the
-d l9 COMMISSIONER KENNEDY:
I don't know what that means, 20 1 what he just said.
i 21 '
CHAIRMAN HENDRIE:
Well, I think it is equivalent 22 l to the sort of thing I suggested is a way of saying that.
I 23,
COMMISSIONER GILINSKY:
I wrote something here.
I'm i
24 l not sure I like it myself, but it says something like "The ca FMirst fleportets, Inc, ;
25 l
Congress recognizes that absolute safety is an understandable l
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goal and generally.that increased cost is attached to increased; 2
cost in safety, and that such costs are a factor in devising I
j 3
safety standards and regulations.
The NRC should cover subject l 1
3 matters on such items related to statutory responsibility so i
I 5
as to provide a high level of protection of public health and i
6I safety.
1 I
I t
7 MR. CASE:
Except that last part --
l 1
a CRAIRMAN HENDRIE:
I like it except I think the l
1 i
9:
last line by virtue of going away from the classic language 10 '
of the last cuarter century, and again in the last line as you, 11 went over it, the high standards of safety that provides or i
12 could provide a reasonable assurance, that should be public i
13 l health and safety.
I 14 COMMISSIONER GILINSKY:
But, you know, at the same i
15 time, we've only said the risks are minimal, I mean that is i
16 !
sort of a reasonable assurance. I would think the reasonable i
17l assurance, for example, you audit an application, all right.
18 l in regard to standards.
I 19 MR. CASE:
I don' t have complete issue.
20 !
COMMISSIONER GILINSKY:
Right.
That's where 21 f reasonable assurance comes in.
22 !
COMMISSIONER KENNEDY:
Reasonable assurance standards 23 l are being met?
24 MR. CASE:
No.
The bottom line is leaving a chance JeScrs' ncno,ters, Inc.
25 there is no risk.
1 1
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COMMISSIONER' KENNEDY:
That's right.
2 COMMISSIONER GILINSKY:
Then you are stuck with the 3
wol *. " undue."
I don't -- you know, that has been interpreted I
4l to mean a high level of safety.
1 5l:
MR. CASE:
Yes.
Compared to the risks.
A high level t
6!
of safety.
l 7
COMMISSIONER GILINSKY:
I'm all for indicating that 1
8i there are bailouts, but at the same time I think we ought to l
9'j be saying that we are setting high standards of safety.
10 MR. CASE:
I haven't got any problems with that as i
11 long as it is a finding that is made for all of these 25 years,
l 12 '
hasn't changed.
13 COMMISSIONER GILINSKY:
I wasn't aware of the precise-Id !
wording.
l 15.
COMMISSIONER BRADFORD:
Is it reasonable assurances 16 f and no undue risk.
U; MR. SEAPAR:
Reasonable assurance, seasonable is not l
18 in the statute.
l9 COMMISSIONER GILINSKY:
Right.
It.1.s the " undue "
20 l that tells you what this active standard is.
21 MR. CASE:
The standards say do not endanger public i
i 22 health and safety.
23 li COMMISSIONER GILINSKY:
Basically they do relate to 24 '
the standard.
2.r.nere nenoners, ene.,
25 t
COMMISSIONER KENNEDY:
Isn't the " undue" the word 1
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, _.. - - ~
+
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1 Seri l' '
-which the ACRS uses?
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2 MR. SHAPAR:
That's not correct.
" Undue" relates to !
3 the risk of issuing the license, and you make that finding in l
4 connection with every license you issue.
l 5
COMMISSSIONER KENNEDY:
That's right.
i 6
COMMISSIONER GILINSKY:
Yes, but, you know, sure 7
it's been --
8 MR. SEAPAR:
It's mandatory.
The statute requires 9
you.to make that finding.
. 1 1 1 10 COMMISSIONER GILINSKY:
From a judgmental standard, l
II whatever that means.
12 MR. SEAPAR:
It's very imprecise, amorphous.
13 COMMISSIONER GILINSKY:
But nevertheless, there is 14 some kind of standard.
If nothing else, there is an historical: I i
15 standard used there comparable to what we have been doing in the past.-
16 17 l MR. SHAPAR:
Well, we use the word " reasonable" in I8 our rules, interpreting " undue" in the statute.
I9 COMMISSIONER GILINSKY:
Well, I'm not --
20 MR. SEAPAR:
Look, if " reasonable" bothers you==
21 COMMISSIONER GILINSKY:
The " reasonable" doesn't i
i 22 bother me in the sense there 's a limit to what you can do to 23 check out if things are okay.
I mean that --
24 l CHAIRMAN HENDRIE:
But you want the thought about
- .re.tv n mon.,,,inc.;
25 {.high standards for. safety.
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COMMISSIONER GILINSKY:
Yes.
And what I am --
l l
i 2j CHAIRMAN HENDRIE:
Let me suggest again to see if by l 1
3 any chance it might resolve this fully.
I think that could be i
4l reasonably put into the same thought:
"Should exercise its l
i 5
responsibility to require high standards for safety that provide 6.'
reasonable assurance."
7 COMMISSIONER KENNEDY:
What was that again?
8!
CHAIRMAN HENDRIE:
It would be:
"The NRC should I
9l exercise its independent statutory responsibilities to require,l" i
10 l use, or utilize, whatever you like, but I'll say "to require 11 1 high standards for safety that provide," or "to provide reason-l I
12 able assurance of protection of the public health and safety."
i 13 l MR. SHAPAR:
You don't need " safety" twice.
"High i
14,
standards."
1 I
15 COMMISSIONER GILINSKY:
I guess I wculd have said i
16 that it should exercise its responsibilities in such a way to 17 {
have reasonable assurance that these standards will be met.
In 18 l. other words, we don't have infinite number of inspectors, we 19 :
don't spend an infinite amount of time in review.
It seems toi 20,
me that is where the " reasonable assurance" comes in.
i i
21 l MR. SEAPAR:
I don' t think that 's right.
22 !
CHAIRMAN HENDRII:
That's a quote from the regula-23 tions.
That's part of it but not all Of it.
24 '
MR. SEAPAR:
You have a large number of points in m..r m e nenonen,inc, 25 the spectrum where you can set the standards in the first place.
9 i
I I don't think, as a matter of fact, the standards l
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l 2
have always been put up at the top notch in the spectrum.
3.
COMMISSIONER GILINSKY:
Well, but the standards are I
I tied into that " undue."
Into the reasonable assurance.
4 l
CHAIRMAN HENDRIE:
And there may be places where there 5i i
aren't --
i 6
l MR. CASE:
The standard versions of the construction 7
i 8l permit say there is reasonable assurance that the proposed I
9l facility can be constructed and operated in these locations I
10 i without undue risk to health and safety.
11 l COMMISSIONER GILINSKY:
Right.
Those standards, if 12 i complied with will not --
l l
13 l (Simultaneous conversation.)
I ja l COMMISSIONER GILINSKY:
The way I would say it, the 15 way I have always thought of it, is that "Those standards provide for no undue risk to the public. "
And you have carried 16 I
17 l out a number of reviews that reasonable assurance that that, j
18 l in fact, is the cese.
19 l MR. SEAPAR:
Remember, you are issuing licenses, l
20 j not just based on standards; you're basing it on the qualifi-21 cations of the applicant.
You're also basing it on engineer-22 ing judgments, on matters that don ' t f all precisely within the 23 l purview of the standards.
So you have got a mixed bag there.
l 24 l COMMISSIONER GILINSKY:
I guess that's probably
~
'd aders' fleporters, IrtC.
25 3 right.
I mean reasonable assurance of the public health and d
1,
10 jeri i
safety doesn't sound like very much.
Now if you say, " undue i
2 risk," then you really sort of piled it on the word "unduc.-
3l MR. SHAPAR:
Well, to get at that point, why on l
4' Alt 2rnative B don't you simply cross out the word " reasonable" 5
on assurance, and let the three f actors that you suggested 6
carry the job by themselves?
i 7
COMMISSIONER BRADFORD:
Supposing you just had 4eme- !
w 't) W u 7
^
< i s.e c 8
of these-- (inauda'^ i 9
MR. SHAPAR:
I ' m sorry,.I didn't hear that.
10 COMMISSIONER BRADFORD:
Supposing you just had 1
11 "so as to protect"?
r 12 MR. SHAPAR:
All right.
So as to protect the 13 public health and safety.
I think that's even better.
Then l
14 taking into account
-- and those are essentially the three 15 '
f actors that Commissioner Gilinsky suggested this morning.
16 CHAIRMAN HENDRIE:
How about that?
17 COMMISSIONER GILINSKY:
So now what's happening --
1 18 MR. SHAPAR:
It now rates the nuclear --
19 1 (Simultaneous discussion.)
I l
20 l COMMISSIONER BRADFORD:
I didn't mean to deal with 21 !
anything more than the problem of reasonable assurance.
22 COMMISSIONER GILINSKY:
Do we have to sort of arrive 23 l at the final language?
Because I don't think there 's that i
24 j much difference in philosophical ^ terms.
. nenniemnen, inc. I j
25 !
CHAIRMAN HENDRIE:
I think that 's right.-
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COMMISSIONER. KENNEDY:
One would never know until 2
- one sees the language which-comes out to be explicit.
I 3
CHAIRMAN HENDRIE:
I was hoping to nail down some
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language because I got a feeling that we i.eed to, if we are 4
j going to be ~ effective wit 6 our suggestions that we are going tol!
5 i
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6 have to move' forward.
I tell you, we are going to lose the
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7 quorum but if you could leave me some sort of option to discuss i
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8 individually with you specific language and so on -- what, are i
4 t
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you going to be around at all?
i 1
10 COMMISSIONER GILINSKY:
Until when?
l l
11 CHAIRMAN HENDRIE:
Will you be back in the of fice I
12 tomorrow?
I 13
- (Discussion off the record. )
i 14 CHAIRMAN HENDRIE:
And I think a thing like this if 1
15 could settle on it would be a very useful thing to have in i
4-16 the bill.
i 17 MR. CASE:
Mr. Chairman, I would like to make another!
r l
18 suggestion.
Whatever you put at the end should say, "should
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4
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19 continue to exercise."
That gives a flavor of whatever the words are, 'we are doing the same thing that we have been doing. i 20 l
[
21 MR. SHAPAR:
You notice, though, that I have 22
" continue." in Alternative A but not on B.
The only reason I 23 didn't put it in Alternative 3 -- and it could go in, as Ed 24 suggests'-- ' the only reason I didn't put it in was introducing' aw.irni nepon.n, inc. ;
l 25 flatly the. concept.of the costs being given consideration.
I
12 i
i jeri 12 1
don't know that many Commissioners would have agreed that in 2f fact was done in the past.
3, CHAIRMAN HENDRIE:
I think your remark is -- let us --
4 COMMISSICNER KENNEDY:
But, however, we would certainly 54 agree that considering, or taking into account an adequate 6:
level of security as a paramount consideration, there's a I
7 continuation.
I i
8 MR. SHAPAR:
Yes, I would.
9l COMMI3SIONER KENNEDY:
So you could say continue to 10 take into account -- to continue to recognize that safety itself 11 is a paramount consideration.
i 12 CHAIRMAN HENDRIE:
Let me jot down some things that 13 we would like, that we could agree that ought to be reflected J
14,
in this language.
And then if you give me a little latitude i
15 l to -- when are you going to _ eave?
i t
16 COMMISSIONER KENNEDY:
I'll be around Friday.
17 CHAIRMAN HENDRIE:
You'll be around Friday.
We might:
18 be able to get together then and trade some language.
I l9 l COMMISSIONER KENNEDY:
Friday morning.
l l
20 CHAIRMAN HENDRIE:
We're not going to be able to do 21 that on more than just maybe just this one issue.
We can't 22 defer the bill on over -- you aren't going to have time to 23 ;
deal with any more than that.
l 2d But let's see, the elements, I think -- gee, Ed, ramu,ni nenonm. inc. ;
i 25 are you nervous about the past?
I'm not.
l I
i i
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MR. CASE:
No, I'm not nervous about the past.
I'm l l 2
afraid people will read this to be a different standard than i !
3I we have had in the past.
That 's the problem.
1 4-CHAIRMAN HENDRIE:
Okay. " Continue" ought to be used I l
. 1 5
in connection with the assurance of health and safety.
And l {
6 common defense and security.
It ought to be used with regard to 1
7 the further things about cost and balance and so on.
8 Secondly, I would like to keep in the thing those 9
thoughts about that absolute safety may be desirable but you 10 can't get there and that the costs of regulatory requirements II deserve some consideration.
i 12 COMMISSIONER GILINSKY:
I wouldn't use the words 13
" regulatory requirements."
I would just as soon say increase !
Id safety requirements.
15 CHAIRMAN HENDRIE:
Safety requirements?
Or increased 16 safety requirements?
I7 COMMISSIONER KENNEDY:
Well, a lot of them aren ' t 18 '
necessarily just safety requirements.
COMMISSIONER GILINSKY:
We are getting into a whole 20 another -- we are talking here about setting --
21 MR. CASE:
But there is a balance already in 22 and environment.
I 23 !
COMMISSICNER GILINSKY:
I would say just recognize
'4 l that costs of i:rreased safety are a factor --
mni ne:mnm. inc. ;
'S '
l CEAIRMAN HENDRIE:
Increased safety, that's gcod.
I
i 14 l'
jeri COMMISSIONER GILINSKY:
Now, I don't mind using thisj!
2 language we have in the regulations saying " reasonable assurance i
3 with no undue" whatever it is, if you then say, since we are r
4 starting to spell things out more than we have ever done, let's!
5 spell out the word " undue."
Congress intends " undue risk" to i
J l
6 ream that there is a high level of protection.
i 7
COMMISSIONER KENNEDY:
And what does a "high level 8
of protection" mean?
I 9
COMMISSIONER KENNEDY:
Well, you know, these are I
m gy 10 kind of semi-rhetgroic here, but it's got nothing to do with --
II COMMISSIONER KENNEDY:
What's the difference between!
12
" undue" and "high level"?
We're substituting one piece of 13 rhetoric for another.
I ld COMMISSIONER GILINSKY:
Well, we are being a little 15 more explicit.
We're being more explicit on the economic 16 side plus a little more explicit on the safety side.
I 17 COMMISSIONER KENNEDY:
As has been pointed out, for 18 25 years, we have been making a determination and the ACRS 19 includes in its letters, that there is no undue risk.
Now we 20,
are going to substitute something for that after 25 years; so 21 whatever it is 22 COMMISSIONER GILINSKY:
The point is, this should i
23 not be taken as a message that you're supposed to let up or i
2d l cc easv.
~
. r,turm necon,s, inc. '
25 COMBISSIONER KENNEDY:
Agreed.
15 t
I jeri l!
Supposing we say "The Commission should also give j
i 2 f the costs of regulatory requirements appropriate consideration 1
31 while continuing to recognize that safety itself is the paramound 1
4 consideration.
5 CCM"ISSIONER GILINSKY :
Why don't we just think I
l 6i about it.
7 CEAIPfDCI HENDRIE:
I wish you would all draft a 8
thing and I will core around and bother you about it, okay.
9:l You're not going to be here tomorrow.
10 COMMISSIONER BRADFORD:
Can I suggest one other II thing.
I2 COMMISSIONER KENNEDY:
I will be.
I 13 CHAIRMAN HENDRIE:
You will be, okay.
i I4 !
(Discussion off the record.)
I 15 l I would just tag the phrase "for any energy source" 16 l on the end of " absolute safety being an unattainable goal."
i l
17 '
I don't think there's any reason --
18 l COPMISSIONER KENNEDY:
I think that's an excellent I
I9 l point.
That's something we were talking about in a different - -.
I l
'0 i
CO"MISSIONER GILI'ISKY:
Picks up number 3 or 14, i
21 or something.
22 CHAIRMAN HENDRIE:
I think it's a very useful I
23 l g3ing7. good.
We will certainly do that.
And other wording, 24 l please exercise your ingenuity and then ccme -- I will be
, was necon.n. ine. ;
w1
~h around to see you and please develop a very ecmplian T. cod so i
)
16 jeri If we can reach compromises anc go :orward with something.
Because t
2 I think this is -- we're gra'pling with what is, over the long l
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l 3
pull, likely to be one of the more important elements.
If we 4
can agree on it, if Congress would go forward with it, I think t
5 it would be a very fine -- it wouldn't in fact make the bill I
6l well worthwhile in itself --
l 7
COMMISSIONER KENNEDY:
It would hardly justify its j
8 title of regulatory reform.
9 CHAIRMAN HENDRIE:
Well, true.
Okay, onward.
10 Now, on page 2 of the additional -- those two sheets
]
l 11 you have got, we had to get over here to where was that, Peter?,
12 Page 4 or 5 or thereabouts.
13 COMMISSIONER BRADFORD:
This wasn't mine, I don't Id think.
l 15 MR. SRAPAR:
Two is to reflect Commissioner 16 Kennedy's thought about the staff is supposed to serve the I7 public interest, the second sheet.
18 CHAIRMAN HENDRIE:
Ah, this is still a finding.
l9 Back to the findings.
l 20 I COMMISSIONER 3RADFORD:
This is labeled as a new i
i 21 !
fourth "inding, is it?
22 MR. SEAPAR:
The underlined language is the addition 23,
to the fourth finding.
24 CO."?!!SSIONER BRADFORD:
I see.
Martmi nermnm. inc.
25 ;
j cot 1MISSIONER GILINSKY:
Do we need a reasonable l
t
4 4
17 jeri 1
assurance and all that, because this is getting to be a little 2
overkilled.
Can't we just say that the participation of the t
t 3
staff is a further instance of protection.
1 4
MR. SHAPAR:
You don't need " reasonable" there; it l
5 was intended to key into the other page.
i 6
COMMISSIONER GILINSKY:
Further into the protection 7
of the public health and safety.
8 MR. SHAPAR:
Yes, you could delete it.
i I
9>
You might want to mesh it though with whatever you 10 agree upon on Friday, I would point out.
f II COMMISSIONER GILINSKY:
I don't see -- what is all 1
12 this?
13 MR. SHAPAR:
This was intended to do as you I4 directed --
15 COMMISSIONER GILINSKY:
I am still unclear whether 16 we are setting the record straight and in fact they did protect!
17 the public interest, or that we are admonishing them?
18 COMMISSIONER KENNEDY:
I think we should be setting 19 the record straight that that is what they have been doing and !
20 are expected to continue to do.
In other words, it would seem,
21 to me appropriate that the recognition of the role which the 22 staff has played in the public interest in the past should be 23 recognized, compliments, and they be admonished to continue it.,
j 24 MR. SHAPAR:
And should continue to be improvements,,
i :mene nermnm. anc. ;
25 !
I would add there.
i
18 4
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COMMISSIONER BRADFORD:
It's oretty hard.
- Well, f
I 2
maybe you can do it with a word like continue.
It's pretty j
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hard to use legislation historically like that.
I guess the I
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t" 4:
word continue would do it.
You can do that better in the l
t 5:
legislative history.
In legislation, it normally speaks of thei I
i 6
future.
i I
7 COMMISSIONER GILINSKY:
Well, the first part is t
8i certainly comparable to the future.
It sounds like the l
9f future.
You' re talking about "should be."
So we are really l
i 1
I 10 l saying that the staff -- this is what the staff should do.
i i
Il CHAIRMAN HENDRIE:
I think -- and then you get down j to participation by the staf f should continue to be in further-l 12 I agree with what you say, Peter, but here I don' t find ;
13 !
ance.
f 14,
it objectionable.
The thought it carries to me is that it 1
15 certainly should be in the future and if it hasn't always been 16 always been in the past, it should have been.
17 CCMMISSIONER KENNEDY:
The legislative history 18,
clearly indicates that that's what it has been, I
1 19 CHAIRMAN HENDRIE:
Or should have been, if it was 20 :
not always so.
I 21 l COMMISSIONER KENNEDY:
The Committee report would 22 l indicate that that has been the intention, that has been the i
23 way in which the staff has conducted itself, and considered 24 ;
itself, and it has been admonished to continue to do so.
- .nn.v reconen. one.
CHAIRMAN HENDRIE:
That seems all right.
And then 23 f
(
t
19 t
a jeri-I cut the -- put a period there, semicolon, I guess, after i
2l interest.
i 3I COMMISSIONER KENNEDY:
Does one need the other?
i 4
MR. SRAPAR:
Yes, I think so.
5 CRAIRMAN HENDRIE:
Do you think we need the tailend?
6 MR. SHAPAR:
Yes.
j 7
!!R. SHAPAR:
The reason being that unlike most i
l t
8 regulatory agencies, this Commission does not have a public-l 9
interest charter.
s 10 COMMISSIONER KENNEDY:
That's correct.
II MR. SHAPAR:
So if you give the staff a different 12 charter from the charter of the agency, you are causing your-13 self problems in having arguments that our jurisdiction goes Id beyond health and safety and common defense and security.
l 15 l COMMISSIONER KENNEDY:
Economic questions and all I,
16 thesothers.
17 MR. SRAPAR:
That's correct.
18 COM'tISSIONER GILINSKY:
What about -- (inaudible.)
19 MR. SHAPAR:
I would suggest that we could handle 20 '
this very easily by combining a thought of Commissioner Brad-2I ford and the problem of Commissioner Gilinsky by simply saying 22 that "And participation by the staff of the Nuclear Regulatory 23 l
-Commission in the licensing and hearing process should continue 24 l to be in the furtherance of the public interest in protecting
, em nemn.n. inc.
25 the publir health and safety and the common defense and security.'
.i
20 l
t
-jeri
)
I think that would combine everybody's ideas.
l 4
4 l
2 COMMISSIONER KENNEDY:
Sure.
3 COMMISSIONER BRADFORD:
How about "you should i
4 continue to further"?
i I
5 MR. SHAPAR:
Better.
i 6
COMMISSIONER KENNEDY:
Continue to further?
i 7
MR. SHAPAR:
Should be to continue to further.
8 COMMISSIONER BRADFORD:
Or how about you should 9
continue to further?
10 MR. SEAPAR:
All right.
"Should continue to 11 further."
"In protecting the public health and safety."
l 12 l COMMISSIONER BRADFORD:
I've never been able to i
13 give that phrase any context.
j 14 CHAIRMAS HENDRIE:
Do you need to say anything abouti 15 !
the environmental impact?
I i
16 I MR. SHAPAR:
No, you don't, because the basic 17 I structure of the Atomic Energy Act is to talk only about 18 public health and safety and the common defense and security.
19 NEPA takes care of our additional authorities, bu t not through 20 the Atomic Energy Act.
?1 CHAIRMAN HENDRIE:
That's right; I agree with you.
22 Okay, let us try it that way.
23 MR. SHAPAR:
Only one other thought on that, and that 24 is you might want to change it to make it consistent with what-
,.r,was nemrms. inc. !
25 !
ever you agree on on Friday.
Because you have got a comparable f
I i
21 jeri i!
phrase in there:
" Protecting the public health and safety" l
I 2
which you'want to discuss.
l i
3j CHAIRMAN HENDRIE:
We'll keep it in mind.
I'll I
i 4
keep it in mind.
5 Onward.
Let's see, you were going to get a para-i i
6 graph up there on page 4 or something like that.
l 7
COMMISSIONER BRADFORD :
I did on page 4 -- 6 I 8j think.
I 9
COMMISSIONER KENUEDY:
Bottom of page 5, top of I
i 10 !
page 6.
Paragraph B.
l II COMMISSIONER BRADFORD:
Right.
I did put a para-12 l graoh together on that.
Howard has now warned me that I have f
i 13 done much more than I intended to do with it though.
He says Id I have now made the whole thing applicable to research reactors.
I 15 l But that I can deal with fairly easily.
Although one of the 16 phrases I took out was "for industrial and commercial purposes"'
I7 l I can just put that back in.
I 18 The other problem, Hcward, seems to me to be just as 19 much a part of what you have got as what I have got.
You have 20 the language "or part thereo#."
21 MR. SHAPAR:
But you see, I could have handled it j
i 22 l by rulemaking to put, for example, the amendments in a certain l
23 category, whereas by putting "the six or nore months" in there,
,,, then you are bound by the six-months for everything.
I wouldn't e,eni neconm. inc.
'S have tha t problem, i
n-
's jl 22 l
ieri 1l COMMISSIONER BRADFORD:
I see.
l ggf f Yk"
\\
l C 4, 2 i MR. SHAPAR:
That was the (inaudible.F v
3; Now, I don't know that it would give us any problems l
in connection with amendments or that type of thing, but I 4l Sl guess it could.
6 MR. CASE:
PTell, the way it is written it applies l
l 7
to the customs, custom-operating license, I think.
Can't
- 4 I
8I you broaden it to include everything.
9i COMMISSIONER BRADFORD:
Nhat is a custom-operating l
10 j license?
11 MR. CASE:
This is primarily, as I read it, dealing 12 !
with standard applications.
Am I right, Howard?
t 13 MR. SHAPAR:
Yes.
i l
l 14 MR. CASE:
But.I think you go beyond that in your i
15 language.
16 l COMMISSIONER BRADFORD:
Okay, I'll put "for 17 ;l industrial or commercial purposes" back in again.
Forget about 1
18 that --
19 i MR. CASE:
You have power reactors.
I l
20 :
COMMISSIONER BRADFORD:
Right.
I 21 ;
COMMISSIONER KINNEDY:
But it's all power reactors.
22 Standard and nonstandard.
23,
COMMISSIONER BRADFORD :
Right.
But that was true 1
24 of the language in the old one, too.
'at1cM :' term,1ers, Inc.
25 COMMISSIONER KENNEDY:
I don't believe so.
23 I
jeri I!
Wait a minute.
It's "A person propos-l l
2 ing'to obtain any approval by rule or regulation or manufactur-3 ing license."
4 COMMISSIONER KENNEDY:
We can straighten that out.
S' COMMI'3IONER BRADFORD:
All I intended to do by 6
taking out the "by rule or regulation or manufacturing" was i
7 just to say "any" because it seemed to me -- how many ways can 8
you get approvals.
9 MR. SHAPAR:
Well, I guess the only problem that is I 10 really left, Commissioner, is whether or not we would want the t
II six months to apply to amendments to construction permits and 12 operating licenses.
13 COMMISSIONER BRADFORD :
Okay, as a practical matter, Id I take it you wouldn't --
15 MR. SHAPAR:
I don't know.
I know people who would 16 know.
I7 CHAIPl4AN HEMDRIE :
Now these amendments come up I6 and you are asked to deal with -- numbers of times you are 19 f asked to deal with --
l 20 l MR. CASE:
Part thereof, in the original, only
'1' dealt with applications of rulemaking or approval of a manu-1 32 l l
facturing license or preliminary design, or part thereof.
,3 ll Relative to amendments, changes, or parts of those amendments --
24 (inaudible.)
=:o nemn.n. inc, dora fois*5 I
24
- R 4961 1
COMMISSIONER BRADFORD:
If you went back to the arther-1 fis Bud 2'
original language, difficult though it is, part thereof I i
3 guess really is right.
I didn't read it'that way.
I 4
i think probably one doesn't have to read it that way.
But 5
all that is for clarification.
WE don't have to take 6
time on it now.
I guess the serious question is whether the i
7 i
six months -- as far as I am concerned, there is no a
reason --
9 MR. CASE:
If you put the six months in as it 10 is presently written, then it doesn' t apply to amendments, 11 so there is no real problem.
12 MR. SEAPAR:
YOu can do it by rule-making anyway, 13 be as specific as you want to be end you wouldn't be 14 bound by the six months.
15 COMMISSIONER BRADFORD:
I would rather have 16 the six months in and make it clear you don't intend it to 17 apply to amendments.
18 MR. SHAPAR:
We could do that.
19 COMMISSIONER BRADFORD:
That would be fine with 20 me, and just forget about my lawn-mowing operation --
p 21 M EE~ g+ ph..>$h.,
MR. CASE:
.(-hsudiLic g22 i
CEAIRMAN HENDRIE:
We could tuck in some language 23 to get amendments out of it, then I think the six months, at 24 AmFWorgt Recorters, Inc.,
least at the moment I don't see where there is difficulty, i
25 l yG k)s and maybe if there is, it will come up in testimens before l
i
.._._v.
i 25 3
a
.DB2 1
.the' Congress and-then we canosee if we have overlooked 2
.some fundamental proposition.
3.
Onward..
4 i
j 4
. COMMISSIONER BRADFORD:
I also redid the next i
5 one, with no intention to change the content, but just 6
tottry'and make it into something I'could understand.
I 7
defy anybody to --
l 8
MR.-CASE.
Oh?
What's it for?
9 MR..SHAPAR:
The only thing we added in there 1
i '
10 is --
Clu4x.w hil COMMISSIONER BRADFORD:
Well, you made no c'hnEges zw./
gy) 12 i in there. It is all out of the Atomic Energy Act, and sacsed-13 though that is, I can't really tell what it means.
14 MR. SEAPAR:
The Atomic Energy Act is probably 15 one of the worst written statutes on the books.
16 CHAIRMAN HENDRIE:
I hesitate to ask, but did 17 you draft that?
15 MR. SRAPAR:
The answer, Mr. Chairman, is Hell no.
19 COMMISSIONER KENNEDY:
On the other hand it is 20 still by and large on the books, and some twenty years 21 later, which says something.
22 l CRAIRMAN.HENDRIE:
But I don't want to discuss 23 what.
24' COMMISSIONER KENNEDY:
That suggests answful u s. ore naconeri anc.
. 25,
lot'of.. people have made an awful lot of.interpretaions and l
'they have all stood up.
26 DB3
!l CHAIRMAN HENDRIE: "As required by rule, regulation l
2 l or order" --
1 3'
COMMISSIONER BRADFORD:
Maybe the best way to do 4
this, I didn't intend to change its meaning, would be if j
Sj we cculd just get agreement that if Howard agrees that I i
6!
haven't in fact changed the meaning --
7 CHAIRMAN HENDRIE:
I would be glad to put you two 8j together to discuss what the nuances are, okay?
I think 9
that is an excellent way to do it.
Okay?
Onward.
Page 7, 10 8,
9, 10 --
11 COMMISSIONER BRADFORD:
Wait a minute.
I 12 l CHAIRMAN HENDRIE:
If you are going to stop to I
i 13 !
blink, Peter --
l 14 !
CCMMISSIONER BRADFORD :
7 I had no problems with.
15 I take it we have surrendered on reactor safety.
16 CHAIRMAN HENDRIE:
Yes. Okay.
N1 b l ine 5, l
/ UO4 gen $
dL 10 4 (a), should that be 104 (b),
A 17 !
l 18 '
a typo?
19 MR. SHAPAR:
I don't think it is a typo.
I will 20 !
check it out, i
l 21 CHAIRMAN HENDRIE:" Any application under Section 22 l 104 (a) or (c)" it says.
You think it may be something else.
23 Put a circle around it, Howard, and put a questien mark 24 I on it.
w. w e Raron.n.ine.;
25 '
MR. CASE:
Can I raise a question there?
Howard Y
4 27 i
I DB 4-will kill me.
l Iwantyoutoknowthatwe_nofonger MR. SHAPAR:
Q'2 b
3 suppress dissent.
i 4
MR. CASE:
Right.
The ACRS -- question.
Should 5
you put'in there ought to be a mandatory review of 6
applications for rules approving final designs.
j, i'
l 7
CHAIRMAN HENDRIE:
I don't think so, because the
- l 8
Committee will want to review those, and I think the 9
Commission will want them to review, and if somebody.found s
10 it necessary to their' peace of; mind to make it statutory 11 why okay, but I have no doubt whatsoever that both we and 12 they will want their consideration on these things.
i 13 MR. CASE:
It just strengthens the hand in moving 14 back from the hearing requirements for those facilities, CI Y
() h) 15 when they are ready to-go 16 CHAIRMAN HENDRIE:
Yes. It could be put in, but --
17 MR. CASE:
Okay.
18 COMMISSIONER BRADFORD:
On dispensing with ACRS 19 reviews, it says the Committee may dispense with such 1
20 reviews.
Should we say "all of part of such review"?
21 Do you want to have them either do the review or dispense 22 with all of it?
23 MR.-SHAPAR:
To give the flexibility, the 24 j proposed. legislative history can make it clear they can M Fm'no Recortees, Inc. {
25 review either part of.an application or the whole application l
i
4 I
28 l
i.
DBL 5
.and.would continue to do so.
COMMISSIONER KENNEDY: YOu could put in --
1 3-COMMISSIONER BRADFORD:
This is five. lines up.
l 4i from the-bottom, page-7.
5 MR. SEAPAR:
The idea being all or part'of such i
6 review?
l 7
i COMMISSIONER.BRADFORD:
Yes.
Should they'have g
l to state.in that letter why review is not warranted?
9 MR. CASE:
No.
l 10 COMMISSIONER BRADFORD: As a receipient of that l
11 letter, I would like to know.
- t i
12i MR. CASE:
'It would take them as much time to 4'
13 write that letter saying why the review is not warrnated
-14 as --
15 MR. SEAPAR:
That has been the argument cgainst 16 putting'in this requirement.
T.e argument the other way for p;
2 17 1 keeping it'in is the public is damn well entitled to'know 18 when ACRS chcoses not to review something.
19 MR. CASE:
He wants the reasons in there, I believe.
20 i
CSMMISSIOhER BRADFORD:
Yes, I mean if they are i
21 1
' capable of making up their mind it doesn't need reviewing, 22
.theyz ought t7 be'able to.say why not.
23 MR. CASE:
The problem is you have 15 people to 24 j a:3 rea % con.n ine. l agree to why not.
They all may agree it shouldn't be 25.'
reviewad',Ebut all'have different-reasons.
29 t
s; CHAIRMAN HENDRIE:
They will agonize at considerable
']
DB6 2
length over reasons, I can assure you.
3i COMMISSIONER BRADFORD:
I am sure that is right. But i
d' for them to agree that something shouldn't be reviewed, 5
it seems to me there has got to be something they can
)
6 set down on paper.
)
7 COMMISSIONER GILIh presume the answer
]
8 in almost every case will be
- actor is very much 9
like some other reactor.
Isn't that going to be i
cdA*Au'
, Y, g} 10 true in A-most every case?
)
v 11 MR. SHAPER: I would think so.
l l'
CHAIRMAN HENDRIE:
No new issues.
13 l l
COMMISSIONER GILINSKY:
Yes, so why can't they 14 l I
i have sort of a standard paragraph.
I mean if that is nc~.
1 15 l I
the answer --
16 MR. CASE: It is just not their way of doing 17 '
things.
18 COMMISSIONER BRADFORD:
If I am going to get a 19 letter from the ACRS saying this application didn't need 20 review, I guess I would like to know why they felt it I
21 l didn't.
"l COMMISSIONER GILINSKY:
No new issues.
i 23!
l MR. SHAPAR:
O# cource you would h&ve the option 24 ;
to requhe
- t. hem to do it an pay.
anJor i secorters, inc.
25 '
COMMISSIONER GILINSKY:
How would you know --
i
L 30 I
h 7'
In other.words, I guess in a situation where eachLguy'has a different reason --
COMMISSIONER KENNEDY: But we could require them 4
to tell us the reason.
t MR. SHAPAR:
If you' require them to tell you the b
6 reason by a working accommodation. The question is whether.
7 or not you wsant to write it into the statute.
j r 8
COMMISSIONER BRADFORD:
I would want to know the l
h Ln n+*'
.1 g)(J 9 'hs"ene if I got a letter like that.
ll 10 COMMISSIONER GILINSKY:
Well,.it seems to.me 11 there is a world of difference --
p!
l CHAIRMAN HENDRIE:
W uld you settle on -- I 13 would like to give-them some suggestion that while a brief 14 summary of their reasons would'be desirable, that they needn't agonizo extensively and write a great long treatise 1
on why not.
17-So language along the lines of "may dispense 18 with such review and report by notifying the Commission in 19 writing that", what, all or part of such review l
j 20 '
by the: Committee is not warranted" --
21 COMMISSIONER GILINSKY:
Say "because", like i
22 it raises no significant issues.
23 CHAIREMAN HENDRIE:
What I want is a summary 24 providing a summary statement as to the reasons.
Am. sea Reconen, inc.
25 i
-i COMMISSICNER BRADFORD:
Review by the Committee
., ^ ~ -.
w a
v.,--
s w-a
-me.
---,, + -
,~
---w,
-n
31 l
i i*
8
'is-not warranted and summarizing the reasons therefor."
COMMISSIONER KENNEDY:
Together with a brief 3
i statement of the reasons for their' conclusion.
4
- l 1
CHAIRMAN HENDRIE:
Something along that line, l
5 okay?- How about that?
If we get a summary statement,
\\6
.E VJW or some brief statement, something 44Je that in there, I think the flavor then is okay.
8 Otherwise I can see a four-page --
l 9
MR. SHAPAR:
I will come up with something.
10 I would mention one practical point. It took 11 about three years of agony to get the Committee to agree 12 to this-language.
I just raise that as a practical point.
14 COMMISSIONER KENNEDY:
Did the Committee have to 15 agree to this language?
16 CHAIRMAN HENDRIE:
They will be asked, but I I
have felt that I would prefer not to ask the Committee to 18 consider preliminary versions of a bill, When we know 19 what the Administration wants to send to the Congress, then 20 that text ought to go to the Committee and say, you know, t
21-for ';our information and we would be glad to have any 22 comments you may want to make, note particularly section so 23 j
-and so, which refer to the Committee.
Then they will I
24 e. N o,a neper.,s.inc.
reply. ~They will get their chance then.
25 4 COMMISSIONER KENNEDY:
But it is an advisory 1
tu
J
- i l
32
{
9 committee, is it not the Commission's responsiblity 2
to determine what kinds of advice it seeks from the 3
committee?
i 4 I CHAIRMAN HENDRIE:
Of course.
5 MR. SHAPAR:
I am afraid that question has been 6
answered by the Joint Committee and it may no longer e
ii 7
i, still be good, since the Joint Committee is either dead
,l 8'
or about to become dead.
i 9i But this was a controversial matter sometime 10 ago, and Congress said that the-Committee can damn well 11 look at anything they want to look at, irrespective of the 1
wishes of the Commission.
13 COMMISSIONER KENNEDY:
On the other hand, did 14 it or did it not imply at that time that the Committee 15 i l
did not have to look at something if the Commission asked I
16 '
it to?
Nor report to the Commission on something the 17 i l
Ccmmission asked --
18 l
MR. SHAPAR:
I don't recall that coming up at all.
19 l!Only that they had a free fishing license.
20 1 COMMISSIONER KENNEDY: Yes.
In other words, 1
91 it could go beyond what the Commission asked for, but 22 i' it could not deny what the Commission asked for.
Is that 23 correct?
24,
MR. SHAPAR:
That didn't come up as far as I know.
am.noe nmn.n, ine.
25,
CHAIRMAN HENDRIE:
But that was the implication, l
1
33-i i
i 10
~
I-Okay, let us. crash forward.
Page 87 Page-9?
~
COMMISSIONER BRADFORD:
On page 8, Howard, after
'the first sentence in Section 185, on permits, in the 4
j Administration draft there was a couple of instance in 5
there which purported to limit the length of time the permit i
6 would be good for.
j i
i 4
7 i.
What was the thinking on that?
l+
l l
8 MR. SHAPAR:
I guess we wanted the flexibility of_not being tied to a fi'xed period of time.
If you all i-i 10 feel comfortable with a time, set time for a site 4
11 permit, there is no reason why it shouldn't go in.
1 12 j
COMMISSIONER BRADFORD:
That wasn't a site permit, i;
13 was it?
14 CRAIRMAN HENDRIE:
Yes, this is the CP section, 15 185.
What language do you have there, Peter?
16 MR. SEAPAR:
Are you talking about the earliest 17 and latest completion dates?
OMMISSIONER'BRADFORD:
Yes.
19 MR. SHAPAR:
That was-something we have taken out of the Atomic. Energy Act in every version of-the NRC bill 21-for thefsimple reason it was borrowed from the Federal
~ Communications Act, and found to be completely useless.
23 It served no purpose whatsoever.
24 CHAIRMAN HENDRIE:
It just turns out to be jesJow seconen, ine. ;
25 '
a, thing that in almost'every.caseLcomes up and requires the t
34 11 3
Staff and the Commission to take~--
I 2
COMMISSIONEB 9RADFORD:
Action extending it.
3 It is in the Atomic Energy Act now?
!j MR. SHAPAR:
Now.
We took it out,'it has 5
been taken out-in 'very version,.and it was barred from p'
/h
[I 6
the Federal Communications ct.
0/$cw>arv h "' W y a//
4 i
coggIFrSIOMER nunn m en-
/ 7' = A 4 hl-s) l J -
O MR. SHAPAR:
Yes, that is exactly the reason, t
9 Everybody was competing for licenses.
10 COMMISSIONER BRADFORD:
It serves no purpose 11 in terms of keeping the permit up to date, in terms of i
12 changes or anything?
1 CHAIRMAN HENDRIE:
The staff cranks that lever 14 with even more vigor than might be desirable in.all 15 circumstances.
16 Page 10.
j 17 COMMISSIONER GILINSKY:
On page 9, I am comfortable I
18 with calling this thing, this combined
' permit a combined N
L 19 permit-operating license.
20 First of'all, let me ask a question.
What does 21
" commence operation" mean?
Loading fuel?
'22 MR. SHAPAR:
Anything we say it means.by rule-23 kaking.
The' legislative history shows the introduction 24-i the hazard, which has traditionally been the loading Ammoo a. con.n, ine,;
i25 '
,of fuel.
L:
1
35 i
1 j!
12
' d..
COMMISSIONER GILINSKY:
Because, you know, we are 2
now calling a kind of approval an operating 3
license, which really is a good deal less than what an a\\
operating license is now.
)
5'
[d i,/
In other words, we are giving somebody y,iece t
6 of paper who has really done a lot less than what people 7
now normally do for an operating license.
8 MR. SRAPAR:
How a lot less?
The only difference 9
I can see is no determination has been made that the plant i
10 has in fact been built in accordance with the application 11 j
as amended.
And pursuant to your request, that is now in 12 the statute.
13 COMMISSIONER GILINSKY:
Well, that's right. I guess 14 l
I don't feel strongly about this --
15 l MR. SHAPER:
I will draft anything you like, 16 that you agree on.
171 l
COMMISSIONER GILINSKY:
If it is anything less 18 I than a review --
19 MR. SHAPER: I don't feel strongly about anything.
3 20 l
i CHAIRMAN HENDRIE:
The staff reviews a design i
and analysis of various plant transients in an event.
22 At OL 5 you would expect to see the final design, and then 23 1 l
a complete set of analyses with correct operationg 24 !
u.a o c a c on m,inc.,
parameters and so on in it.
25 i l
On the basis of that, the Staff reccamends an a
J 36 l.
ll 13 1
an operating license, which then does not issue immediately, 3
4 because typically the Director of NRR hangs onto it until
\\
the plant has satisified a variety of completion and inspection requirements.
Now in the combined CP-OL, the Staff'gets in 2
6 I
and reviews that same final design and final set of safety
}
7 l
analyses, just a couple of years sooner, and once 8
l more before he goes any place with it, he has to complete i
the facility, and be inspected and be found to have lived i
10 up to all of the terms and conditions.
4 11 I see less qualitative difference than you seem ll 1
12 to.
i i
j 13 COMMISSIONER GILINSKY:
Let me ask a question in 14 the other direction.
I 15 You say' complying with the rules and regulations of l
16 the Commission. Does that mean the! ones at the time he 17 applied, or the ones since then?
18 MR. SEAPAR:
Any that you put in effect as of 19 that time.
20 CHAIRMAN HENDRIE: Anything that is in effect 21 when he wants to operat5-he has to conform to.
- 22 '
MR. SHAPAR:
Exactly.
23 COMMISSIONER GILINSKY:
Isn't that a stricter 24,
AwFWerd Recemo, loc.. standard than we apply now?
' 25 !
.MR.
SHAPAR:
No.
1 i
~
..,,.+L
1
'1 g
-l l \\
o 14 CHAIRMAN HENDRIE:
No. We don't rllow -- it I
f 2
.doesn't take an OL form'out of his picket and sign it i
j a
3 l
for the plan now.unless it is in conformity with the i
3 4
Commission's rules and regulations, as they stand' at the 5
moment'he puts pen to paper.
t 6
COMMISSIONER GILINSKY: Just so we don't --
]
7 CHAIRMAN HENDRIE:
The first thing you know i
8 you will be complaining about all this backfitting'the' staff 9
- requires.
t COMMISSIONER GILINSKY:
You mean to s ay there is
. 1 11 i'
no cut off?
12 CHAIRMAN HENDRIE:
No.
13 MR. CASE: You can make a cut-off in the regulations 14 you write. But if you make no cut off, there is no cut-off.
15 COMMISSIONER GILINSKY: I see.
16 MR. SEAPAR:
Not only that, but you should know 17 that even if an applicant complies with all of the rules.
18 and regulations of the Commission, and gets his operating 19 license, if, for some safety problem, it doesn't quite fit 20 1 within the context of the rules, you feel it is a safety 21 prcblem, you can shut him down.
22 COMMISSIONER GILINSKY:
We are all familiar with 23 that.
All right.
24
- Am.n.,euw a.co,w,, inc.
CHAIRMAN HENDRIE: I think that is pretty good
.25 l 10 ?-
t on balance.
.I 1
.i
..~
38 15 COMMISSIONER BRADFORD:
Still on page 8, il
" utilization of production facility other than a facility 2
3l f the type specified in 2021 and 2022,"
isn't that a i
3l fairly tortured way of saying --
COMMISSIONER KENNEDY:
Where is this?
5 COMMISSIONER BRADFORD:
TWo-thrids of the way 6i i
down on page 8.
7 sn a
a ary rue ay saying it?
8 What we are really talking about are commercial light water 9
10 p wer reactors.
Do we want to be talking about, in various streamlined proceedings, if somebody comes in with
-jj 12 l I don't know, a heavy water reactor, a high temperature gas l
reactor, a re-processing plant --
13 MR. SHAPAR:
You can take as many things out ja 15 as you want.
The thought was the one controversial thing around now is the breeder.
THis was picked up 16 from the Administration bill.
They wanted to knock out j7 the breeder, because the breeder is so controversial, I
18 assume.
19 If y u feel there are et i.r matters that you would 20 l i
like to knock out, we can knock t..em out.
21 i
COMMISSIOINER BRADFORD:
Well, as a practical 22 matter --
23 MR. CASE: As a practical matter, it won't h-open.
24 A:eNua Recorte,s, ine, 25 l COMMIS6IONER 3RADFORD:
Why don't you say light i
39 s
i 16 I
water reactors here?
2 COMMISSIONER GILINSKY:
We are looking for a 3l 3(int ' *j (O v) etadsrd-application from General Atomic --
g 4
CHAIRMAN HENDRIE:
Yes, for an HTGS?
5!
MR. CASE:
It hasn't been approved --
l 6
COMMISSIONER KENNEDY: But there is an application, 1
7 right?
8 MR. CASE:
I don't believe there is any appli-9 cation.
For a standard design, yes, there is that.
10 MR. SHAPAR:
How about a critical facility?
Il Wouldn't you want to do it for that?
12 COMMISSIONER GILINSKY:
You are talking about 13 a combined --
14 MR. CASE:
AGN 201, low one-tenth watt research 15 l reaction.
We haven't-got a definition of light water 16 reactor, although we have horsed around.
17 '
MR. SEAPAR:
If you use it, you will have to ccme 18 up with one.
It is not a term of art.
19 COMMISSIONER BRADFORD:
It seems to me this 20 l potentially encompasses a lot of facilities we 21 l are not ready to encompass.
22 MR. CASE:
It says "may".
You are not directed to.
23 COMMISSIONER KENNEDY:
Yes.
As long as it 24 !
does say "may", we can decide, whereas if it gets more n.rme nnemes. nec.
25 ' restrictive, when the time does come, if it does, we have to
40 i
4
'l 17
'j go back for legislation to make it possible.
2 MR. SHAPAR:
Also I couldn't imagine in my wildest
[
3!
dreams someone coming in with a final design on a new 4
concept.
5 COMMISSIONER BRADFORD:
No.
Might you get somebody l
6 coming in, because this language occurs throughout the bill, 7
might you get somebody coming for early siting or for 8
something other than the type of --
9 CHAIRMAN HENDRIE:
Not a light water reactor.
10 COMMISSIONER BRADFORD:
Yes. Supposing they came 11 in, you might want to consider whether or not --
l 12 '
CHAIRMAN HENDRIE:
I suppose it gets you right i
13 back to the same thing you do now.
14 MR. SHAPAR:
I think it might depend on the 15 circumstances.
I think you would want to fine tune it by 16 rule-making.
17 '
CHAIRMAN HENDRIE:
It would be preferable to 18 deal with it by rule-making, rather than to be excessively 19 restrictive here in the statute, because then we may be i
20 back in two or three years having to have legislation in order to clear a path for a perfectly reasonable sort 22 of thing.
23 l COMMISSIONER BRADFORD:
As you say, we do have 24 i the control over this, I guess.
From our point of view I w..neya n.com,,, w, l
~25 j
think that should be adequare, i
41 18 1
CHAIRMAN HENDRIE:
Well I think if had my 2 1 druthers, I would strike this 202 language on the basis lbg 3) 3j that indeed we do have the pow,per and we are not about 4
4l to rush pell mell into things, but maybe --
I 5l MR. SHAPAR:
Is that in view of the vote today?
6' I mean yesterday.
l' 7
COMMISSIONER BRADFORD:
About three lines below
~
8j that, where you 'say "in accordance with the rules and l
9' regulations of the Commission," I suggest inserting what 10 I gather may already be in the rules and regulations, but 11 ;
it says : "Provides reasonable assurance", and I had i
12
" adequate protection of the public health and safety."
13 You might want to say "no undue risk."
14 MR. SHAPAR:
That is in the regulations.
15 COMMISSIONER BRADFORD:
I guess I would prefer to 16,
see that in the statute.
I just think -- my problem with
\\
17i this whole section is there isn't anything resembling a 18 j standard in it.
The rules and regulations of the Commission 19 might change at some future time,although for the reasons Ed 20,
already pointed out, after 20 years I guess it is unlikely.
i 21 It seems to me where you have a new type of 22 f license, it ought to be pursuant to a statutory standard i
23 :
that actually says what you are talking about.
3 4
L 2d !
MR. SEAPAR:
T/ere are only two or three statutory (L
An Nuu n.conen. Inc.
25 standards, unde risk, not endangering the public health and I
42 Il/ safety and maybe a third one that 19 I can't recall, all relating L
2 to utilization of facilities. But if you would like to 3
pick one or more, we can put them in.
i 4
COMMISSIONER BRADFORD: I would, if no one disagrees.
5 COMMISSIONER KENNEDY:
I have no objection.
6 CHAIRMAN HENDRIE:
I don't either.
7 Howard, if you discern any sort of structural 8
difficulty that follows frem that, talk to Peter as you 9
will on other matters.
10 MR. SHAPAR:
I certainly will.
11 CHAIRMAN HENDRIE:
Okay?
Onward.
l' COMMISSIONER BRADFORD:
Would 60 day notice hurt 3
there?
14 CHAIRMAN HENDRIE:
"I would think not.
Is 60 15 day notice okay?
16 l MR. SHAPAR:
Yes. It is where it would apply to I
17 !
amendments is where it might pinch.
18 CHAIRMAN HENDRIE:
Then what can you do to make 19 l it 30 days at most for amendments?
l 20 1 l
MR. SHAPAR:
Amendments are taken care of, this 35 doesn't apply to amendments.
So it is all right.
s CHAIRMAN HENDRIE:
Onward.
9, 10?
)'
Wait a minute.
10.
In subsection
, 1 w.ranmenm,inc.l; 1, you have the Commission making all of the findincs 25 '
l required to be made prior to the issuance of a permit or i
I
i 43 f
20 license pursuant to the National Environmental Policy Act, l
li f '69.
2 Supposing the state is undertaking to make those 3
findings?
Does that language cover that?
Or would that 4
require the Commission itself to --
5 MR. SHAPAR: you are talking about the tie-in with 6
'the other section that enables us to rely on it, we 7
i could use that reliance authority to take this as well.
8 Because it says, if you get to the actual language, 9
i "In preparing and considering any environmental impact j
10 33 statement or conducting any other environmental review M
g) ttl pursuant to the %atisei Environmental Policy Act of N
12
'69," et cetera, "the Commission shall" -- in certain cases 13 ja "and may" -
" rely on others."
MR. CASE:
The Commission still has to make 15 16 the finding, even though it relies --
COMMISSIONER BRADFORD:
Okay.
j7 CHAIRMAN HENDRIE:
Under the pattern here we 18 I
39 don't give up the fundamental responsibility to make 20 the findings.
l p
What our suggestion does is to allow us to use i
22 Has a basis for those findings however much of the state proceedings as are appropriate.
23 24 COMMISSIONER KENNEDY:
Allows us to use or
- Ame= ww mesonen, Inc.
25.
require us to use?
['
CHAIRMAN HENDRIE:
Allow, I think.
' l.
44 i.
i
!21 MR. CASE:
Allow, on the environmental work.
2 CHAIRMAN HENDRIE:
Not on the need for power.
COMMISSIONER BRADFORD:
On subsection 2,
" finding 4
on the basis of the available information and review to 5!
date."
6i What does that actually mean?
l, l
7 MR.SHAPAR:
T is merely is a codification of gt 1
8 our existing rule on limited work authorization.
It means i
9 that since the final review is not over, we issue 10 the LWA because the complete review process is not over, 11 we take what we have in hand to enable us to issue the l
12 i i limited work authorization.
l
+
13 COMMISSIONER BRADFORD:
Okay.
In terms of the 14 timing, the way these things work, can that eome at the 15 time when in fact the available information reviewed to date 16 is fairly limited?
17 !
MR. CASE:
It has to satisfy our requirements.
18 MR. SHAPAR:
You have to have reasonable assurance.
19 l' It is simply a recognition that there may be other i
i 20 i l
information that comes in later, because the construction IA permit certainly hasn' t been issued.
Thisis_ghreliminary 22 step to the issuance of the LWA.
I 23 l i
MR. CASE:
It is in the context of if you are 24 reviewing a complete construction permit application.
wmuu a. con.n, ine, 25 l
CCMMISSIONER BRADFORD:
Right.
But if the request r
45 t
l 22 for the limited work authorization came early enough, I i
.t I
, i' suppose the available knowledge and review to date might consist of very little except a statement from the applicant 3
t that no harm would ensue.
4 M.
HAPAR:
Mat wouldn't meet you regulations, Si because our regulations, during the process of the review 6
we would say that isn't good enough.
l 7
l gl COMMISSIONER BRADFORD:
But if you require it on the basis of what you have to date --
9 MR. SHAPAR:
But if they give us the information 10 too early and too sparse, we couldn't say that was reasonable 11 I
12 l assurance.
COMMISSIONER BRADFORD: All right. I wouldn't 13 mind,if I were an applicant,trying to wind that one back-g wards, but I think you are right.
33 MR. CASE:
I don't think you could get away with 16 it.
j7 I
MR, SHAPAR: I think it has been tried.
18 CHAIRMAN HENDRIE:
I think it has been tried.
39
-~
20 l I think he did well~for a while, but feel into a trap the i
Staff had laid for them.
2, 22 l MR. CASE:
He might get the site approved and i
'3 :
never get the construction permit.
I I
2il COMMISSIONER BRADFORD:
In subsection 3, to the AmS=cerol Recor+ers, Inc, !
25 l extent that we are saying that -- maybe it is not part of
k n
y
'46 j
.i I
1 23 this subsection.
Anyway, " conducted at the risk of the i
2 i
Applicant,"
The Administration bill had in there something
-3 about it shouldn't be part of a subsequent cost-benefit i
t*b 4
calculation.. Why are'we p gnthat?
5 MR.SHAPAR:
Say.that again?
COMMISSIONER BRADFORD:
It says "such activities 7
shall be conducted at the risk of the Applicant, and should i !
8 be subject to ratification and modification by the Commission 9
at any time.
10 The Administration bill went on to say -- and 11 I don't have the exact language --
19
^
MR. CASE: You have already made the NEPA-findings, by this time.
CHAIRMAN HENDRIE:
That was just a misunderstanding of theIrocess in the NEPA bill.
I mean in the Administration 16 bill.
17 MR. SHAPAR:
I would like to point out again 18 that the only purpose of this section is sort of a (a bh s
g g)19 word of caution to confirm the anthr-ity -that we always 20 thought we had to issue limited work authorizations.
This 21 completely follows the existing practice and regulations.
MR. CASE:
In that sense they are tested.
23 COMMISSONER BRADFORD:
As a practical matter an.nora abner, inc, under the existing practice, to'c detf 24
-weht extent does a limited 25 work authorization ever exert a pressure for a particular 1
47 l,
k 24 type of result later on?
Doos.the applicant ccme in and say "Look, I have spent a million dollars already".
i 3
MR. SHAPAR:
You might also ask that question l
4 in connection with the' issuance of the operating license, 5
after the plant has been fully constructed.
l 6
COMMISSIONER BRADFORD:
Yes, I understand what you i1 7
are saying.
8 MR. CASE:
Because of this clause he can't do i
safety work unless we are' satisfied the safety work to be undertaken under the LWA, there is no safety problem.
11 MR. SHAPAR:
I would have to disagree with that i
l l answer. I think the candid answer to his question is yes, 13 the more he has invested, the better position he is in to f'
14 exert pressure on us.
15 MR. C ASE:
Except I have to approve everything 16 he does.
17 MR. SEAPAR:
You are saying that you can resist pressure on all occasions and I am sure you can't.
19 COMMISSIONER GILINSKY:
Well, no one has ever been turned back at that point. Is that right?
3 *f#I
/'
21 MR. GAst:
True. Nor has anyone been refused an 22 OL after he received a CP.
23 COMMISSIONER BRADFORD:
At the bottom of the 24 page, is there a reason why you left local publication out Aa.rwuu n.comn, ine, 25 on this one, only publication in the Federal Register.
_j-
48 i
25 Local publication seems to crop up everywhere
- 18**
j 2
MR. SHAPAR:
You mean 60 days?
Well, we have 3
the thing in connection with the original application, but 4
if y u w uld like it here, okay.
5 COMMISSIONER KENNEDY:
Where is that?
6 COMMISSIONER BRADFORD:
The bottom of page 10.
j 7
8 COMMISSIONER BRADFORD:
Page 11, I have nothing 9
on.
10 CHAIRMAN HENDRIE:
All right. 12?
jj COMMISSIONER BRADFORD:
12, I have nothing either.
17 COMMISIONER GILINSKY:
There is an "e" missing --
13 CHAIRMAN HENDRIE:
The spelling hasn't been ja i
uniformly admiral through here.
I found a "notwithstanding" 15 16 at some place, I believe on page 13 --
COMMISSIONER BRADFORD: There is a "b"
that should 17l ee-that is one of the limitations of a y ku!*
tkilt cww hnaudible) be "by".
I h,
18 4
MR. SHAPAR:
Where is the "e"?
39 COMMISSIONER BRADFORD:
The 7th line down.
20 COMMISSIONER KENNEDY:
Which page?
21 COMMISSIONER BRADFORD:
Page 12. And you have the g
23 -
same thing on 13 on the fourth line.
24 i MR. SEAPAR:
We will have to give that a close a:;:1.Fworel Agotters, Inc l 2S l reading.
I i
[
.r.
49 1:
26
' CHAIRMAN HENDRIE:
Now on page'13, let' see, I am geting -- there are or aren't?
3 I would like to. treat this rather briefly and see 4
if we can't' agree.
We have the first item previously 5
reserved that comes up on page 13 and the top of page 14, 6
l~
the question of whether the Commissioner should be alloweed 7
standby power'to issue an interim operating license.in 8
advance of the conduct or completion of any required hearing, t
9 with appropriation conditions, et cetera, et cetera.
10 We agree that we want this authority explicitly 11
')
in the statute for amendments to operating licenses.
It 12 has been or I.have argued, I guess, that it would very
,1 1
13 desirable to have standby authority to issue an operating l
14 license.
But let me, since we have an interim--
15 MR. SHAPAR: An interim operating license.
16 m
c)
. CHAIRMAN HEND3EIE:
Well, an interim operating 17 license with appropriate conditions in adva rre of the 18 completion'of the proceeding.
19 We have discussed it and had a chance to think about it.
21 i
.Why-don't.I just ask for an expression of yea i
22 or nay down the~ table.
23' COMMISSIONER KENNEDY:
Yes.
24
_ CHAIRMAN HENDRIE:
.I have-a yea.
Peter?
A*Foo a.co,ms, inc.
25 1
The' Chairman gets to vote last, or1maybe not at all.
!r
50 l
27 e
Ii COMMISSIONER'BRADFORD:
On the license itself, b
2 I would say nay.
3 COMMISSIONER GILINSKY:
I would say no,unless the conditions are somehow, relating to a national emergency, 4
5 something like that.
COMMISSIONER BRADFORD:
My concern is the standards.$ l 6
\\l 7
If someone could draw up a set of standards as to when these 8
things should issue that are more specific than what we have 9
here, I might consider them.
10 CHAIRMAN HENDRIE:
WOuld language along the lines
" urgent public need or national emergency" --
I2 COMMISSIONER KENNEDY:
It was indeed that context I3 that I was saying yea.
I#
CHAIRMAN HENDRIE:
I would like to go a little 3
15 l beyond that emergency, because if some region flat out 0
is not going to get through the winter without turning out I7 a lot of power.
18 COMMISSIONER KENNEDY:
Declaration of a national 19 emergency is a rather difficult thing, although --
20 COMMISSIONER GILINSKY:
(Inaudible) 2I l COMMISSIONER KENNEDY: Yes, but you know the 2
Administration, the President does have a lot of authority 23I to declare certain areas as disaster areas, or other
'4 aesuc,cin.com,..ene.!
circumstances which would justify an action.
i CCMMISSIONER GILINSKY:
Then would you have a l
i
.i
51 j
28
,l
, hearing on that?
2 COMMISSIONER KENNEDY:. Would he have a hearing?
l 3
hpM" g GILINSKY: Would we have a hearing?
.\\pW 4
COMMISSIONER KENNEDY: I wouldn't think so.
COMMISSIONER GILINSKY:
I mean not the President's 6
declaration of a: national emergency. You are talking about i
7 an urgent public need. It would seem to me you wouAd 8
have to have a hearing to decide if there is an urgent 9
public need.
10 CHAIRMAN HENDRIE:
I would think if the Commission 11 in its wisdom concluded there was an urgent public need,
'12 which made it appropriate to go forward with an interim operating license, appropriately conditioned, if nobody objected to that action, I would see no reason to have a 15 hearing.
16 If somebody objected, a state or a party objected, 17 then presumably there would.
18 COMMISSIONER KENNEDY:
I am visualizing a circum-19 stance' arising where a state proposes something, DOE j
requests the Commission to act in this regard, you know, 21 why would we then sit -- we would be at that point a bit
.I 22 A'
g/(d in the mode'of the Federal P9wer Commission, we would be 23 determining the need for power.
24 1
COMMISSIONER GILINSKY:
Well, first of all,
>=i wu seroners, inc.
25 there has got to be scembody, objecting,-because presumably q
l 1
_.. ~.
52 i
29 that is what led to the situation that brought the 3
request up here in.the first place.
2 i
MR. SHAPAR:
Is your question do you have to have
_3 a hearing on whether or not there is an emergency?
4 The answer is no.-
If you look at page 14 5
y u will see a special requirement for a Federal Register 6
i notice soliticing comments.
If the idea is to allow the 7
peration before you have your hearing on the substance, 8
obviously_there couldn't be a requirement to have a hearing 9
on whether or not there is a need.
10 COMMISSIONER GILINSKY: Why not?
jj CHAIRMAN HENDRIE:
In that case you might as well 12 have the hearing on'the original issue.
13 MR. SHAPAR:
It is a different subject.
jg COMMISSIONER GILINSKY: Just because somebody 15 calls over here from the Department doesn't mean there is a 16 public need.
37 MR. SEAPAR:
Well, you decide whether or not 18 there is a public need, whether somebody at Energy tells you 39 so or not.
COMMISSIONER GILINSKY: You know, depending on 20 21 l how you set up the procedures l
MR.-SHAPAR:
And who is sitting as Commissioners.
22 COMMISSIONER GILINSKY:
Yes, you can have different
.23 24 outcomes.
An#Wd Rgonen, Inc.
COMMISSIONER KENNEDY:
I know, we don't -- we are 25,
l J>
~
=
j 53
\\
DB30 t
going to get ourselves back into the need for power issue.
j i'
2 COMMISSIONER GILINSKY:
My inclination is to l
Il l
3 say no, but I would be hard put to say you don't want 4
to turn on a plant when there is a national emergency, l
i l l 5
something like that.
l!
I If you are talking about a judgment, it would l
6 l
7 be nice to have the power, somebody calls from the Department 8
of Energy, you know, it ought not to be easy to turn the 9
plant on.
I think it ought to be more than just --
i 10 CHAIRMAN HENDRIE:
Wht would you do with the 11 governors of three states out here-saying " Gentlemen, we 12 have to have this plant or there will be widespread hardship l
13 in our area".
What would you do then?
l 14 COMMISSIONER GILINSKY:
Why can't you have a one-l 15 day hearing, have them appear.
16 CHAIRMAN HENDRIE:
What I would like to have is so-owIY gy\\J 17 something in the legislation that weedt allow us to 18 give consideration to that situation.
19 What you are preparing to do is to just rule it 20 out, say well, in that case we will go to Cor.;ress and ask --
21 COMMISSIONER GILINSKY: No, I sn saying what --
22 COMMISSIONER KENNEDY:
Look, having been given 23 this authority, it seems to me we have to outline the 24 conditions under which we propose to execute that authority, 2x.wmi secon n, ine. l 25 i and we'would do that, it seems to me, by regulation.
54 e
DB31' 1
It does go out for public comment and the questions 2
we are talking about can be-solved
-3 MR.'SEAPAR:-
You can also say it is not 4
'just how urgent.it is, it would seem to me if you had a 5
.very very serious safety problem, in litigation of that 6
issue,you might.very well decide, no matter how urgent it is, 7
you are not going to allow.it.
!~
r 8
CHAIRMAN HENDRIE:
I would say it would be better l;
i 9
not to have-the power --
10 COMMISSIONER GILINSKY:
I think there ought to be i
11 a hearing before the Commission on any decision'like that.
12 MR. SEAPAR:
You indicated before expressed in 13 terms like national emergency.
14 COMMISSIONER GILINSKY:
That sets it at a pretty 15 high level.
If you start backing up on that --
16 CHAIRMAN HENDRIE:
Hold up. I smell a. possibility.
is fT L
17 '
I was trying to use words like "ur.gcat public interest",
18 "public-need," as well as " national emergency", to provide 19 a statutory description of the circumstances in which you 20 would contemplate an initial OL before you completed the 21 regular. proceeding.
22 LIf you.would prefer to do that qualification 23 by saying now with regard to an interim OL, I mean an 24 initialf0L,Tbefore that could' issue, the Commission has the w.sou meon.n. inc.
25 authorityEtoido, but before that could issue, the Commission.
I 1
l 4
t 1
s 55 11 4.
e i;
( 3 2.
1
.has:to hold a hearing on'it,'or there should be a hearing i
i 1
l' 2
.before the Commission, why that would be fine with me.
!l i-3 I would think the circumstances in which we
.,+
4 would want to do this would be sufficiently rare and 1
i l
5 pressing and particular that the Commission won'-
'ndeed j
6 would do the. equivalent, and I would have no c
action 7
to having a Commission hearing requirement in the statute j
l' i
8 to make that explicit.
I 9
COMMISSIONER GILINSKY:
Look, I think you ought td[aveboth,havethehigh-standardand--
10 11,
CHAIRMAN HENDRIE:
Okay, urgent public need and
{
btk 12 national emergency and a hearing.
Can you do that, Hp' ward?
i 13 MR. SHAPAR:
I am not sure I understand it.
i 14 Urgent --
15 COMMISSIONER KENNEDY:
Urgent public need.
4 16 CHAIRMAN HENDRIE:
This is for an interin or initial
'9 17 operating license in advance of completion of the regular 18 proceedings.
19 MR. SEAPAR:
Okay.
20 CHAIRMAN HENDRIE:
Before that, the qualifications i
I 21 !
on that are urgent public need or national emergency, j
i 22 and a. hearing by the Commission on that questien.
23
. COMMISSIONER KENNEDY:
Now wait just a second.
l 24j If a national emergency has been declared, what is it that A>FWent Reporwrs, Inc. 'j 2S j the Commission is going to decide?
A n
56 j
l f
33 CEAIRMAN HENDRIE:
Whether the need for power is l
2 sufficiently -- is the stronger force, or whether there 3
is some --
4 COMMISSIONER KENNEDY:
What I am talking about 5
is the Commission -- the staff says to the Commission there 6
is a major safety question here, and indeed that is the l
t 7
subject of the proceeding which is ongoing, and the reason 1
'1 8
that we have not recommended or we have not acted on the 9
issuance of this matter,'what are we going to decide?
l On ie other hand, if that is not the case, the staff' 11 says it is not, if the staff is not saying that, and a 12 national emergency is declared, what is it then we are going to say?
14 I am trying to figure out what the purpose of 15 '
the hearing is other than --
16 CHAIRMAN HENDRIE:
To determine the urgent public 17 !
l need.
f IB I I
COMMISSIONER KENNEDY:
But if a national emergency 19 has been declared --
20 MR. SEAPAR:
You have, on page 14 --
21 i
COMMISSIONER GILINSKY:
A national emergency may 22 relate to something quite different than power.
23 CEAIRMAN "ENDRIE:
I haven't grabbed the 24 i Amrwuc R con.n, ine. l problem you are having.
25 COMMISSIONER KENNEDY:
I thought we were talking i
ft
57 l1 34
- l about a national emergency which, among other things, ll l
!l 2
required this action.
t 3!
COMMISSIONER GILINSKY:
The question is are you i
4 using national emergency in the sense that the President 5l has declared, quote, a national emergency.
'l l
6 COMMISSIONER KENNEDY:
We have to use the words l
l 7
very carefully here.
If we are talking about a national g{
lI emergency, that is what it takes.
There is no such thing
!lii 9
as a national emergency, within quotes, unless the President 10 declares it.
Isn't that correct?
I 11 MR. SHAPAR: I am not sure.
12 COMMISSIONER KENNEDY:
The president has to declare i
13 l a national emergency.
14 MR. GOSSICK:
Use the words "in the presence of 15 t an urgent public need.
I i
16 I COMMISSIONER KENNEDY:
That is different. But we 17 i are using both.
18 COMMISSIONER GILINSKY:
He has a good example 19 of that in the railroad strike.
j 20 I COMMISSIONER BRADFORD:
When does the President I
21 l declare a national emergency. It isn't usually for rail i
22 strikes.
ge g
23 l
' VOICE:
During the Korean War, President Truman 3
i 24 tried to nationalize the steel mills, and was not successful m.M,ra n.conm. inc. I 25 because the Supreme Court in Youngstown Sheet and Tube i
struck it down.
i 58 Ih 35 CHAIRMAN HENDRIE:
Let me make a suggestion.
}l 2
Let us delete the words "or national emergency" from the 3l proposed language and leave it " urgent public need."
In 4!
that case the urgent public need might arise on a regional l
5; basis, a need for power on a regional basis, or it might 6
blow out of some national situation.
But in any case, 7
we ought to hear it and undrstand the nature of the need 8
and be quite clear that there is a pressing need for us 9
to consider allowing the plant to go into operation.
I 10 l COMMISSIONER KENNEDY:
Or else in such a case r
II lI to be in effect bypassing our own rules, i
I2 CHAIRMAN HENDRIE:
Yes, sir.
How does that strike 13 you?
Id COMMISSIONER KENNEDY:
That's fine.
15 COMMISSIONER GILINSKY:
I guess that is all right.
I 16 I guess I was -- this is a very exceptional thing.
l COMMISSIONER KENNEDY:
In fact the Commission is I
18 going to have to hear the matter to decide --
-h
, h I9 COMMISSIONER GILINSKY:
TXere will be a hearing 20 !
before the Commission then?
I 21 COMMISSIONER KENNEDY:
That's right.
22 l MR. CASE:
By the Commission, by you, yourselves?
23 l MR. SHAPAR:
Do you want the Commission irself i
24 i to conduct the hearing?
e.n.eue n. con.n, inc. ;
25 COMMISSIONER GILINSKY:
Absolutely, l
~
59 l
36 CCMMISSIONER KENNEDY:
I would say yes, wouldn't 2
you?
3l CTLAIRMAN HENDRIE:
Yes, becuase I am sure that 4
the circumstances in fact -- no Commission would 5
allow that to go just --
6 MR. SHAPAR:
Now this is an adjudicatory hearing; 4
7 I
unless I say something different here, that is the hearing i
8 '
you will be providing.
9 COMMISSIONER KENNEDY:
An adjudicatory hearing?
MR. SHAPAR:
That's correct.
Unless you specify 11 differenty, all hearing in licensing proceedings are 12 adjudicatory.
13 COMMISSIONER KENNEDY:
In this case?
My own 14 inclination would be no, it would be a legislative hearing.
15 COMMISSIONER BRADFORD:
I would think an adjudicatory 16 hearing probably doesn't do much harm in a case like this.
I 171 1
And by harm, I don't mean harm, but I don't think it 18 delays very much either.
It comes up quickly --
I 19 l COMMISSIONER KENNEDY:
Well, won't there be time 20 l l
for discovery, cross-examination, and how long is that 21 l going to take?
MR. SEAPAR:
In an adjudicatory hearing, you have 23 all of the rights of discovery --
24 CCMMISSIONER BRADFORD:
Now what does a court do am.v eud seconers, inc.
'S'a when -- I guess what I conceive of is something akin to i
I
60 l
1 37 I
a: hearing on an injunction.
You have a temporary 2
injunction, that can be done ex parte.
But then a hearing 3
on whether or not to make the injunction permanent that 4
is a full-dress kind of thing, or is that just an o.
l 5
argument?
6 MR. SHAPAR:
I think you have the right to l
l present evidence and cross-examination on the final injunc-l 7
8 tion.
Isn't that right?
9l m
D)
MR. REAyWER:
'I think so.
You might get around 10 it by saying a hearing using expedited procedures, something f
like that.
17 MR. SHAPAR:
I woulc think you would want to give I3 yourselves flexibility to either hold it or not, as you Id see fit 15 For example, the example we have in track 3 for 16 the marriage of the pre-approved site and the design, I7 '
you could use an adjudicatory hearing if you wanted to, l
18 but you wouldn't be compelled to.
19 COMMISSIONER BRADFORL:
What troubles me is not 20 the part about urgent public need.
That I assume will 2'
stand out quite clearly, even in the legislative format.
I 2
Cross-examination would be of limited value.
But I take 23 it there is also a concern in here for ascertaining what,if 24 l any, problems there are with turning on the plant.
A :sReed Reconers, Inc,,
M,,
25 i gf (d For that you might want to be abel to put scmebcdy I
i i
61 38 1l under oath and have them tell you about it.
2 MR. SRAPAR:
I guess the real question is whether i3' you want flexibility in here to depart from an adjudicatory 4
hearing or not.
5 COMMISIONER BRADFORD:
I don't mind having the 6
flexibility.
I just think there might be some part of it i
7 that you would want the cross-examination and sworn witnesses 8
MR. CASE:
Write in flexibility and you can 9
do it any way you want.
10 COMMISSIONER BRADFORD:
That is correct.
11 MR. SEAPAR:
Let me ask one last question.
I 12 think I have it now.
With respect to amendments, are you 13 incorporating any of this with respect to amendments or 14 are you keeping the language for amendments as it is now?
15 CHAIRMAN HENDRIE:
No, amendments go as they 16 are now.
And you may need to separate them completely in 17 order to avoid tangling them up.
18 MR. SHAPAR:
Yes, I realize that.
19 COMMISSIONER GILINSKY:
If we are dropping the 20 words " national emergency" it would be nice to keep the 21 word " emergency" in.
Urgent public need or emergency.
I 22 CEAIRMAN HENDRIE:
If we stay away from the 23 national emergency, we get out of a certain nemenclature 24 which implies the President signing a paper and we are A.tFW#ccs Rwoners, Inc.
25 ;
not about to have a hearing to find out whether he actually i
l
62 n
39 1
' signed'it or not.
f L
t 2
COMMISSIONER KENNEDY:
Or had the right to.
l t
l i
i 3
CHAIRMAN HENDRIE:
Public need or emergency.
j.
4' MR..SEAPAR:
Public emergency or need, I would say.
! l 5
COMMISSIONER GILINSKY: Something like that.
4 i
6 COMMISSIONER KENNEDY:
Urgent public need or 7
emergency.
That extends it rather broadly across the i
i 8
spectrum.
i 9
CHAIRMAN HENDRIE:
Onward.
10 COMMISSIONER BRADFORD:
I am sorry. I skipped the 11 first half of page 13.
l 12 Is there any objection to doubling the notice
^
i 13 on those two?
Up to 180, and 80.
i 14 CHAIRMAN HENDRIE:
30 days is already burdenseme onmostamendments,atleast[tofamendments.
15 16 MR. SHAPAR:
Right, amendments are still 30 days.
g) R,)
17 l r-CHAIRMAN HENDRIE:
The Cdmmission may dispense --
18 COMMISSIONER KENNEDY:
At least 180 days prior 19 to granting --
20 CHAIRMAN HENDRE:
I have lost it.
Where is the 21 180?
22 COMMISSIONER KENNEDY: At the top.
Is that what 23 you are' talking about, Peter?
It starts out on the other
'24 "Any application under section" -
"such permit or page.
' Aca FWerst Reporters, Inc.
25 l. amendment thereto, you want at least 180 days, Peter?
l
63 O
COMMISSIONER BRADFORD:
Yes, the original i
2 application.
What I am thinking of there is that often these 3
l early notices, I would think, enable the proceeding to a!
get off faster.
And no one has, or no one is in a position 5
to come in and say "I have only had 30 days, I haven't got i
my witnesses yet, my funds together " this or that.
7 MR. SHAPAR:
Under the present system, I 81 l
don't see any problem.
There is one caviat.
The whole j
9 present system is structured on very early notice, and the 10 '
hearing does not take place until months later, until 1
11 the staff has completed its job of both the safety review 12 and the environmental review.
13 There have been critics of the system, among the 14 environmentalists and others, who say the system is skewed, 15 and what you really ought to do is set it down for 16 hearing real early, and then battle it out with the l
17 '
staff and applicant and the intervenors, in which case your 18 180 days may cause you a lot of trouble.
19 The way we do things now, it could cause no 20 trouble.
21 I leave it up to you.
2 MR. CASE:
I have problems.
This is hb 23 l amendments;$to cps, amendments to site --
24 MR. SHAPAR:
No.
sm remi m.conm, inc.,
25 1 j
COMMISSICNER KENNEDY:
Site permit or amendment I
l
i' 64 l
41 thereto, the Commission shall publish'once in the Federal l'
- r 2
and twice in major newspapers, at least 180
7s
- Register, in' advance.
Amendments.
That is the way it reads.
4 CHAIRMAN HENDRIE:
Well, six months on amendments --
5 MR. CASE:
Even 90 days on amendments is too 6
- long, j
[
7 MR. SHAPAR:
It says in parens 30 days in the case 3
8
'i of applications and amendments.
4 9
COMMISSIONER BRADFORD:
Then the next sentence says "the Commission can dispense with all of that stuff 11
~
t l
if it makes a determination that there is no additional
~
risk, including --
13 MR. SHAPAR:
One question at a time.
What was 14 the question, Commissioner?
15 COMMISSIONER BRADFORD: I was trying to answer 16 a question rather than raise one. Yes, it does say including 17 amendments to site permits.
b 18 i
M(
MR. CASE: Tyen in this parenthetical thing where i
19 l
it says only 30 days for operating license and amendments, j
is that all amendments?
21 :
COMMISSICNER KENNEDY:
I assumed it was amendments i
to operating licenses.
23 MR. CASE:
Just to.ocerating licenses?
I 24 i
. Am.r e.<c a.conen, ine. !
COMMISSICNER KENNEDY:
So it is 180 days
'25 for amendments.
I MIL CASE: I thinkLthat is tco T.uch.
65 i
42, COMMISSIONER BRADFORD:
Three months may also be too much.
What you want is a shorter period for amendments.
2 MR. SHAPAR:
Yes. I guess we mean 30 days for 3
all amendments.
4 COMMISSIONER KENNEDY:
Why don't you take the 5
6 -
word " amendment" out of " site permits,: and deal with
'i amendments separately?
7 COMMISSIONER BRADFORD:
The long time.
I am g
interested in is for the permits themselves.
9 MR.SHAPAR:
My answer would be the same, though.
10 11 Under the present system, 180 days wouldn't cause trouble.
l
)
COMMISSIONER BRADFORD:
If you went to a situation 12 1
where the staff is on the same footing as everyone else, 13 then you would in effect have to require pre-notification 14 15 by the applicant.
16 MR. SHAPAR:
It might work, but I haven't l
17 '
thought it th-3h.
CHAIRMAN HENDRIE:
I thought we were going to get 18 19 through the interim rapidly.
Did we come to a conclusion there?
20 l
21 i COMMISSIONER BRADE ORD:
Let me ask about the 4
i next sentence down, notice of publication, after making 22 a determination that no additional risk to the health and 23 24,
safety of the public is involved.
22.wasswomninc.!
Is that something we can get away with?
I mean --
25 ;
f
i 66 I
I 43 l
CHAIRMAN HENDRIE:
That is what we do now.
j pd MR. CASE:
C e words are a little different.
3 MR. SHAPAR:
This was in response to a request 4
[G [
by this Commission in an earlier session. T/is is one of l
i 5
the things I was asked to do, to raise the threshold in 6l connection with amendments.
7 CHAIRMAN HENDRIE:
Okay, that don't have significant:
8 i
safety issues.
9 COMMISSIONER BRADFORD:
What would you do if you 10 were on the outside, and felt that particular amendment, 11 which the Commission said didn't have a significant safety 12 issue, did in fact have one?
l t
13 CHAIRMAN HENDRIE:
It's a great way to -- we get i ;
14 a whole lot of amendments that come through to operating 15 licenses saying look, our Bingham pump is worn out and b
16 we want to replace it with a Westinghouse pump, and the pump 17 ;
k charactp, eristics,envelopethoseofBinghamandsoon 18 and we can't see where it makes any difference, and the thing 19 is rattling and we don't think it will last past the 20 )
weekend, and we want to jump in and change the thing when i
21 '
we shut the plant down the weekend.
If we have to notice that thing for 30 days, we have no way to deal with 23 those.
24 I t
Now if somebody comes along and says wait a a:..N w o n. con.n.inc.
25 minute, that is a safety issue, I think the Staff is mature i
67 i
t DB44 enough and technically sound enough to make a decision.
i 2
COMMISSIONER BRADFORD:
If there was no notice 3
how would somebody even be in a position to come along 4
and say?
5 MR. CASE:
What we traditionally do is post 6
notice.
l l
7 CHAIRMAN HENDRIE:
If they want to come in and say l
8 that was a dumb decision, we will accept the challenge.
Wm * ~
9 fa The fycte the way it works now, 2
MR. SHAPER:
f 10 !
Commissioner, if it involves these hazards, there is a pre-11 notice.
If it doesn't invol're the hazards, we post l
notice it.
13 COMMISSIONER BRADFORD:
Okay. Could that be t
14 put in here, a requirement to dispense with the pre-notice --
15 MR. SHAPAR:
It is in there by --
16 MR. CASE:
Well, it would be dispense witn the i
17 '
r'
.g i' pre-notice.
Ypu could read it to say dispense with the 18 pre-notice.
19 1
MR. SHAPAR:
Do you want to add the requirement
)
'O l for post-notice?
gj 0'{
COMMISSIONER BRADf50RD:
I would.
22 l
COMMISIONER KENNEDY:
Just stick with pre-23 1 notice and forget the cther thing. Or do you want to put it t
24 l
' re.P,eero m coners, inc. i both ways?
25 COMMISSIONER BRADFORD:
Well, I guess what we l
t 68 DB45[/Vb farereallysayingincircumstnceswkberethestaffthinks 2[
it should, it can revamp the notice.
What you are saying I
3 is you can never eliminate notice entirely.
And there ought to be some way to say that in the statute, that the 5!
notice may take place after the fact, and if somebody wants i
6l Lo raise an issue, they can.
i 7
CHAIRMAN HENDRIE:
There are places, isn't it in 8 !
our regulations --
9 MR. CASE:
It is in our regulations for the 10 post notice.
9 gOs\\ 11 N
CHAIRMAN HENDRIE:
THat we notice in the Federal b
1 '*
Register amendments to licenses.
13 MR. SEAPAR: Correct.
j l
14 CHAIRMAN HENDRIE:
I suppose one could build that j
15 '
.Into the statute.
16 COMMISSIONER BRADFORD:
I don't think it is --
17'j every time he answers a question like this, when I raise 18 l it here, he says "It is in our regulatiens, and we do 19 that anyway."
When you go before Congress and have to I
20 r
glv answer that same question that way, in efect you are 91 '
l saying just trust us to do it right.
That applies very
. : a)2
well,1'in this rocm, but probably very badly out on the Lv m3,
street.
{
24 l A::nhud bronert, Inc. l COMMISSIONER KENNEDY:
If vou can put it in, I 2~5 i agree with that principle, put it in here, why not.
69 j:
46 1
.CEAIRMAN HENDRIE:
Okay.
I detect the five i, '
2 seconds of' silence declares we have completed our work i
1 i
3 on'the draft half way down page 14, and we will adjourn 4
'this session so we may take up the now 30-minute late
)!
5 matter of late running NRC petitions on low enriched
! t 6
uranium exports.
7 May we have a determination from the Sunshine I
B boys?
l J-9 VOICE:
W,2 re,ycommend that the transcript be l
10 withheld until the current --
l
! l II CHAIRMAN HENDRIE:
On the same basis as i i 12 previously for these legislative sessions.
All in favor?
13 (Chorus of ayes)
I Id CHAIRMAN HENDRIE:
It is so ordered.
15 Open the doors.
16 (Thereupon, the Commission adjourned this
'17 session to consider other-matters, the 18 session to be reconvened upon completion
\\
l9 of other matters on the same day.)
1 20
?p~2 fis 21 ;
i 22 23 24 A::s Fu*prit Recorters, Inc.
.25 t
- I
'l
I 70 i
-i l
Take 2 CHAIRMAN HENDRIE:
Okay, let us rave forward.
[
DB '
l' 2
We are now in a closed session dealing with legislation..
3 A group like this ought to be able-to shift gears in a 4
i
. great hurry.
j l ;
5 We are back on the middle of page 14, and are about 6
to charge ahead.
Dick will be back, he-has to make a phcne call.
If 7
1 a
ti 8
A
- I we hit anything -substmiRi'IW here, we will hold it until j
9 he gets back.
i i
10 The next section.just repeats the Atomic Energy Act 11 I
language on licensing boards.
I don't see anything in 19
~
particular in that.
i 13 By the way, it is in here because~--
14 MR. SHAPAR:
(Inaudible.)
15 CHAIRMAN HENRIE:
Okay.
Early site approval and 16 standardization of utilization and production facilities, 17 the middle of page 15.
18 COMMISSIONER BRADFORD: Let me raise there the same 19 point I raised before, on utili:ation and production facilitiesj 20 if you are talking about a standard design submitted for
'1 an !!TGR, does that really -- (inaudible)
CHAIRMAN HENRIE:
It might turn out in due time that in fact if the gas-cooled people crank up their cause and 24.
move forward, that in.three'er four years you might want to aw.neya n.mnm, w.
25 look at a rule-making and not a standard design.
71
.i I
2 1
MR. CASE:
They have their standard design application 2
in for our review.
3 !
COMMISSIONER BRADFORD:
Yes, that's right, I was 4
thinking about that.
It is like I said before, it is unlikely I
Sli that such a design you would have much experience with, Yddtoapproveastandarddesign,or 6
that we would be 7
did I misunderstand.
i 8;
VOICE:
It would be difficult to pre-approve the site.
l l
9' CEAIRMAN HENDRIE:
I guess the reason I don't find 10 difficulty is that the concept of the standardized design Il didn't require a plant that had been designed and that had 12 been built and operated, so you had a lot of experience I3 with it.
Rather it had connotation in here that l
Id here was a design, and we would expect the applicat to 15 l develop rather more fully for us at the CP stage i
16 and at the OL stage, than might be the case for a custom I7 '
application, and that the staff would review it with 18 particular vigor, that it would have in it,the standard part 19 of the design would have init special features which relate 20 to the interface between the part of the plant we review I
21 { and the rest of the plant, whereas in a custom application 22 you wouldn't have a design for the specific plant, and there 23 it is.
And then in view of these special considerations, I
2s l the prospect was that one would be able to use that same
.,.s o,ci a, cort.rs,inc.;
design, the review and safety analysis for this standardized l
l i
i
(
I 72 l
design on a number of applications.
It is expected to do 3
that in fact.
2 1
So in encouraging people to come in with so-called 3
i standardized designs, in fact what most of the standard 4
designs that we have processed are in fact designs that 5
haven't oeen built before, because everybody says oh, 6
i 7
well, Lf you are going to make a fancy thing, we will move j
forward and put our best foot forward in a technological 8
(jph 9 and power production Edb$NeI, to have the most saleable t
10 product.
i 11 Now the gas-cooled guys didn't want to be left out 12 of the prospective benefits, they said look, let us do it too, and the comment to them obviously was, and we made 13 14 it in a series of meetings, there has not been nearly the 15 exercising of the HTGR designs and safety issues that 16 there has been on the LWRs.
We have only had Fort St.Vrain, 17 and it is not full commercial Lize, and so on.
18 But they said, look, if you don't allow us to 19 come and present a design under the standardization 20 policy, you in effect have made a decision very prejudicial 21 to our commercial interests and there is not, in our 22 fair, a fair basis for it, we are willing to provid e you 23,
more and extra in the way of detailed safety analysis and 24 i
.so on, and expect you to do more and better in the way of 2*rou n. con.n, ine. l 25 l review, ask a lot more questions, we will gladly bear those 1
l
?
73 4
1 burdens, but don't rule us out of~the benefits, otherwise 2
we will just get left by the wayside.
i 3'
.Since then they have had to pull out of the commercial 4
market anyway.
COMMISSIONER KENNEDY:
They are talking about getting
[
S 6
back in.
I 7
MR. CASE: Yes, they are.
l 8
CHAIRMAN HENDRIE:
They are now talking about getting 9
back in.
I guess I would, prefer to have in the Commission's 10 scope the ability to. deal as it' sees appropriate, l'
t should that arise, rather than be limited in such a way 12 in the statute that you would have to go back to Congress 13 and say please rewrite section so and so and take three Id words, and put in four words, because that is a very cumbersome Lhir.g.
16 COMMISSIONER BRADFORD:
We done' have to pick it up I7 now.
The only concern that causes me problems is if I 18 understood a' couple of pages further on correctly, this hearing on the 19 contemplates having a / standard design HTGR, heavy water 20 reactor, whatever, which would be a legislative type 21 hearing.
22 MR. SHAPAR:
No, no. They could not get the 23 full advantage of-track 3 unless there had been an opportunity 24 for an adjudicatory type hearing on the standard design.
b.Fwdere Aerorters, Inc.
CRAIRMAN HENDRIE:
As it stands now.
There is a
74-
.5 recommendation form OGC that we reconsider that standard
'~
~ l.
.i 2
I' in. fact, and maybe.we ought to do that, unless'there is 3
some intervening material.
4 COMMISSIONER BRADFORD:
Well,'there is, but S
whichever you prefer.
6 CHAIRMAN HENDRIE:
What is the intervening l
t 7
material?
8 COMMISSIONER BRADFORD:
It may be a failure of memory on my part-- incidentally, there is a typo at the 10 top of page 16.
But in an early siting situation, what 11 becomes the state peoples' responsiblity?
What happens?
12 MR. SEAPAR:
The concept is, before the state i
gets into it, we do as much of the environmental review 14 in connection with the approval of the site as we can 15 possibly do with the information at hand.
It will be a 16 large part of the environmental review.
It will be based 17 on assumed parameters for the design.
18 One thing that we probably won't be able to do very effectively, if at all, is the need for 20 power part.
21 2
COMMISSIONER ERADFORD:
I am sssuming for the g}
22 moment the most you could ever require on need for power is 23 some vague certification'from the state that it has performed 24 a stMy on-@.e h general e.nergy nee h h de M u e.
w.r.e,< i R porters, inc.
MR. SEAPAR. Yes, right.
I s
.e e
-a
w
- i 75 1
DB'6 COMMISSIONER KENNEDY:
That arises only in a 2
particular' plant context, at the time somebody is going to l
l 3
build one.
4 MR. SHAPAR:
Yes, but they could ask for an early 5
site, and I suppose have some kind of a thing in mind at UV N 6
YfIdon'tknow, you need flexibility obviously.
that time.
7
- (d COMMISSIONER BRADFORD
Dyes NEPA apply to 1
8 early siting?
9 MR. SHAPAR:
I think it does.
I think it is a 10 major federal action affecting the quality of the environment.
11 COMMISSIONER BRADFORD:
Okay, and under this bill it would still apply?
13 MR. SRAPAR:
Yes, it would still apply.
14 COMMISSIONER BRADFORD:
Then the state could choose 15 to do the NEPA review on the early siting the same way --
16 MR. SEAPAR:
It could choose, and if'it did in 17 -
fact, we could rely on it the same as we could for any 18 other. action, like a construction permit.or operating 19 license.
20 COMMISSIONER BRADFORD:
Are there hearings 21 involved.in early siting now?
22 MR. SHAPAR:
Yes, there are, an adjudicatory 23 proceeding.
You have to go back to an earlier section of 24 i
4.NW Reconen, Inc, '
189 of the bill to pick it up.
25 COMMISSIONER BRADFORD:
Oh, I see.
This is 192.
~
76 i
!~
DB7 1
MR. SHAPAR:
The hearing requirements are all J
gh2 in 189.
An adjudicatory hearing would be / eld in i
3 connection with an early siting 4
COMMISSIONER KENNEDY:
Is the decision to site 5i a coal or oil fired plant a major Federal action?
i l
6l, MR. SHAPAR:
There's no Federal agency involved.
7 COMMISSIONER KENNEDY:
That's what I thought.
i 8
CHAIRMAN HENDRIE:
If somebody had to issue a 9
permit, it would be.
10 COMMISSIONER BRADFORD:
The minute there is a 11 permit, which there usually is, of any sort --
12 CHAIRMAN HENDRIE:
I don't think there is, because 13 I don't think there's a comparable proceeding.
14 MR. SHAPAR:
Well, there might be circumstances 15 where it was on Federal land, or something like that.
16 COMMISSIONER KENNEDY:
But not as a general rule, 17 no.
18 CHAIRMAN HENDRIE: I don't know how EPA gets 19 away with granting clean air stuff without doing NEPA.
20 MR. REAMER:
I think it is in the statute.
21 i CRAIRMAN HENDRIE:
Gee, that was a neat piece I
22 of craftsmanship on their part.
23 MR. SHAPAR:
It is due to the fact that they 24 are an " environmental imorovement" agency. You are not.
An#w& col Recorters, Inc.
25 ;
CHAIRMAN HENDRIE:
I'm dreadfully sorry about that.
l 1
4 -
8
+
i 77 DB'8 COMMISSIONER KENNEDY:
Can we be considered neutral in the case?
3 MR. SHAPAR:
I think /ou can have aspirations 1
4 4
i for a higher-status.
a^
S CHAIRMAN HENDIRE:
Okay, let's see. Back~to the 2
1 6
to p of page 16.Did that help?
1 7
COMMISSIONER BRADFORD:
Yes, it did.
This begins:
,l 8
j "except as provided in 192," but let's see.
Okay, that is l
5 9
fine..
10 The Administation bill had language that appealed 11 i'
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to me at the end of this section, something to the effect 1
12 l-that these permits were good for ten years unless extended f
I 13 i
by the Commission.
Our present early site approvals are 14 good for five years, right?
15 MR. SRAPAR:
I think site approval is for such a 16 period of-time as we may specify by the rules.
17 CHAIRMAN HENDRIE:
Under the proposed rules.
(,JO MR.Sd APAR:
I think it is five years.
19 COMMISSIONER BRADFORD:
It just seems to me it 20 would be sensible to '.
some end period in this.
I don't 21 mind putting in that it can be extended. But after say 22 ten years, the people who live around it should have --
23 CHAIRMAN HENDRIE:
I think we would end up having 24 o 'dte' a Me tahat sam hw Mg h was goM h :Mhe 6.Fm9 ret Recorten, lnc.-
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it got reviewed and so on.
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DB9-COMMISSIONER ~ KENNEDY: :If'you' don't some period, 7
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at:least asllong as ten years, you.might as well just l'
2 not go through this exercise.
3 COMMIISSIONER BRADFORD:
If'that is true, how j
4 come the Commission's rules now say five?
5 CHAIRMAN HENDRIE:
An'ill-advised regulation.
6i a
i COMMISSIONER KENNEDY:
That is a question I have l
j 7
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. raised a couple of times.
8 MR. SHAPAR:
What period of time do you want to j
9 pick?
10
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t COMMISSIONER BRADFORD: I would say ten.
j 11 l
12 MR. SHAPAR:
Ten years, unless extended for good i
cause.
13 1
COMMISSIONER KENNEDY:
Extended for good cause?
j-ja MR. SHAPAR:
Well, we will mesh it with the other i
15 16
- language, i
CHAIRMAN HENDRIE:
Is that the language you want?
j7 i
MR. SHAPAR:
I w!11 mesh it with similar language, j
l 18 i
l 39 found elsewhere, i
CHAIRMAN HENDRIE:
Okay, ten years.
20 I
MR. SHAPAR:
To not exceed it, right?
p; 4
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CHAIRMAN HENDRIE:
ght.
jL 22 COMMISSIONER BRADFORD:
Why doesn't the site 23 24 preparation stuff here, why not just use the standards
- AcaJeot Recorters, Inc, j 25 l that apply in say1section 185 (b) to the same type of l
' activity?
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SHAPAR:
Well-- you mean.the limited work j
i-i authorization?'
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- 1 COMMISSIONER BRADFORD
Yes.
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4 MR. SHAPAR:-
The theory here was, right or wrong, s
I 5
that was one of the big ~ carrots, that here, unlike in 185, i
6 they had gone through a design review, with opportunity for 7
an adjudicatory hearing, they had gone through a standardized 8
design with opportunity for adjudicatory hearing.
So they 9
had really at least two l'egs up, two long legs up on i
10 i
someone who comes in for the first time on a custom plant and asks to prepare the site.
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12 That is the theory of this section.
COMMISSIONER BRADFORD:
THey have got the pre-approved site, theyhavegottheprekapprovedesign--
l 15
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MR. SHAPAR:
I am sorry, I may have mis-spoken i w 16 m
W there.
I think this-is just the preKapproved site.
17 MR. CASE:
The theory is you have already made 18 those findings.
19 MR. SRAPAR:
One leg up, not two.
20 CHAIRMAN HENDRIE:
The previous section takes 21 a normal applicationand legitimizes in statutory form the 22 LWA we now do.
23 MR.-CASE:
The only finding you don't have to 24 make is safety' problems.
Am.Nuu s. con n. ine.
25 I am in midstream.
CHAIRMAN HENDRIE:
Steady up.
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jf The previous one just'says what you are doing
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now with the LWA, that is okay.. This one now says if you l
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have done the early site review, which includes almost ei el' 4
all of the NEPA review', everything except the specific need l'
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for power determination, considered alternative sites and 1jl-6
'all of the' rest of it, and hsa included in that proceeding-il l
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.the site-related safety aspects, because you are going to
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8 have to deal-- whether a site can receive one of these
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9 permits, it has to be adequate from a saftey standpoint, ll 10 seismic and tornado design and so on.
- i 11 If'you have done that, then this thing says you can !!
12 go ahead now and dig the thing up.
You have in fact at 13 that point done everything that you do in the LWA and 14 in fact a little more, because you have gone ahead and-1 15 set --
j' 16 MR. SEAPAR:
It doesn't say a little bit more, c;
17 But you have discretion in how you set your regulations.
18 CHAIRMAN HENDRIE:
I think in practice the early 19 site permit, the review there, will provide a somewhat 20 more complete determination on the safety-related site 21 matters than the LWA does at the present time.
22 MR. SHAPAR:
YOu may very well, when you write 23 your rules, decide that you want to let them go forward.
21 That!s a good point.
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25 l COMMISSIONER BRADFORD: Under 185 (b) ' you have a
I 81 I
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NEPA responsibility and that is done away with here.
By i
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done away with, I-mean finished.
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3 CRAIRMAN HENDRIE:
Satisfied.
4 COMMISSIONER BRADFORD:
Two is there is i
5 reasonable assurance it is a suitable location.
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6 MR. SRAPAR:
That certainly has been done.
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7 MR. CASE:
The thing that may not be done is 3, 8
'and you decide that in the rules.
}
.9 COMMISSIONER BRADFORD:
Okay, now how clearly gy 10 I I 2 been done?
That is a question I had later on anyway.
11 Is there a possiblity that you have a standardized design,
12 or I suppose in this case even a non-standard design 13 which was not suitable,'even though the site itself had been i
14 pre-approved.
15 MR. CASE: Yes.
16 COMMISSIONER BRADFORD:
Do you contemplate that 17 !
these sites that are pre-approved are going to be suitable 18 for all types of nuclear facilities?
'19 MR. CASE:
It will be LWRs previously licensed 20 for construction by the Commission.
Anything that fits in th~t envelope.
It wouldn't be for any of them. I don't know 21 a
22
.what they might conceive.
So in that sense you have made 23 the site safety finding, as well as the NEPA.
And if it 24 l doesn't match, then you can't go ahead.
A:::Nutt Recorters, Inc.
JS MR. SHAPAR:
You do have the prefatory language i
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i' 82 under (b) that says "unless otherwise ordered by the 1
C mmission."
I threw that in to give the Commission residual 2
1 authority to stop it in cases where you thought the 3
circumstances justified it.
COMMISSIONER BRADFORD:
But he is not going to 5
have to come forth for a specific application, is he?
6 h
MR. SHAP But we will know he is doing it.
7 COMMISSIONER BRADFORD:
I would hate to find out 8
about it --
9 MR. SHAPAR:
He has to be an applicant.
He has l!
10 to submit an application, so we damn well would know about it jj COMMISSIONER BRADFORD:
He has to submit the 12 application for the plant, but nothing in the application 13 says he is going to start running a bull dozer --
g MR. SHAPAR:
You can put a requirement in your 15 regulations to specify that.
That is something I think 16 you would want to do in your regulations.
When he submits p
the application, the requirement is when does he intend to 18 start working.
39 COMMISSIONER BRADFORD:
The answer here is you 20 will put it in the regulations.
I do think when you go
.g before the Senate or whatever there are going to be an g
awful 1 t f place's where that is the answer --
23 l
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24 MR. SHAPAR:
W0uld you like to put in a requirement 42Nmi a.conm, inc.
that there must be notification in the application?
25,
i 83 DB14 COMMISSIONER BRADFORD:
I think so, yes.
l, i
i 2
MR. REAMER:
Let me suggest another area where I
3i comment may be adverse to this and may misunderstand our intent.
Something was mentioned in the meeting with the 5
states.
Some states will read this section here, even though 6
it is not intended that way, to authorize work at a site j l ll l
7 prior to obtaining a state approval, which may be required.
8 We have never taken that view as being the way 9
we would construe this section.
But that very point was 10 brought up on Friday.
11 l MR. SHAPAR:
You mean it would pre-empt the I
12 l state?
.1 MR.
REAMER:
That is right.
The states have read this as saying once you have the site permit from the i
15 6 NRC, this section right here, once you file your application --
MR. SHAPAR:
Let's solve that quickly by saying 17 "Nothing herein shall be construed as precluding compliance 18 with any applicable state requirements," something like 19 that.
20 l CHAIRMAN HENDRIE:
Okay, must give notice and 1
21 l I
comply with the state laws.
I 2
COMMISSIONER BRADFORD:
We keep saying for good 23 cause.
When we make a good cause finding, do we just say 24 l w.r ore n.corters, ene. {
for good cause, or do we tell what it is?
25 '
I MR. SEAPAR:
We usually don't knew what it is, l
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to tell you the truth.
We fill it out by rule-making when 2
we can...Even'there it is left rather vague.
j 3l MR. CASE:
The question is does it have to be f
i l
4 in writing,-all that.
-i
^5 COMMISSIONER BRADFORD:
We it is ju.=t a little like 6
the ACRS thing if you say "we hereby find good cause, go i
7 ahead,"
that is a lot less satisfactory.than saying "the I
j 8
good cause is a, b, and c, go ahead.
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9 MR. SEAPAR:
We always give reasons, but there is fi j
10 no standard usually beyond good cause.
Il COMMISSIONER BRADFORD:
But we don't just say you 12 have shown good cause, go ahead.
i 13 MR. SHAPAR:
No.
Even when we extend the dates Id in construction permits, we give a reason.
15 l CEAIRMAN HENDRIE:
Onward.
I think we are on i
I
-16 page 17.
17 l Now we ought to discuss the point you were about 18 to make with regard to the sorts of proceedings, and I also I9 want to discuss the OGC proposal that we reserve for 1
-20 ourselves a flexibility on the type of proceeding, on a 21 rule-making proceeding that would approve a standard design, 22 ! or in the manuf acturing license, making a rule out of the 23 manufacturing' license.
24 :
And the suggestion of OGC points out.that the 3mune seconm, Inc.
25 hybrid sort of proceeding of a GESMO type appears tv OGC to f
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t 85 t
l OGC offer considerabale advantages, in that the cross-axamination t
sort of features that people seem to be so fond of are 3
indeed available, but upon identification after an 4
1 l
4 initial part of the hearing of matters in issue, which j
1 i.
5l are appropriately dealt with by that procedure.
6 Now let me not try to explain it any more.
l' 1
7 Would you like to say something further in behalf of this j
8 proposition?
t 9
VOICE:(Staff),Our concern was there should be 10 an option which the Commission can consider.
4 11 COMMISSIONER GILINSKY:
Why in those proceedings i
1 as opposed to others?
Why single out ae so-called rule-making proceeding, which is
..y like any other,
+
14 except --
,l 15 P
(W CHAIRMAN HENRIE:
Because these are rule-making A
16 proceedings that are dealing with a series of highly 17 technical engineering arguments about levels of safety 18 and the nature of the design, and I think this opinion, in 1
19 part, relfects the painful memories of the ECCS hearing,
~
where a flat-out' adjudicatory format on that sort of 21 issued turned out --
22 COMMISSIONER GILINSKY:
Well, it would seem to me 23'
-- I mean I --
W\\
24 D
CHAIRMAN HENRIE:
Turned our to be not all that Ac.Fw:* eros Rarortersfloc.
25 t isf actory..
i
86
'l 17 COMMISSIONER GILINSKY:
That may be a good
.I 2
idea, but it would seem to me something that went across l
3 the baard, or you wouldn' t want it at all.
In other words, if; 4
we are going to restrict the hearings anywhere, I think I
,l 5
l l would do it in the' case of individual applications, where
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whatever harm may ensue, it would be limited to that i
reactor.
If you get this one wrong, you may be getting a lot l
8 of reactors wrong.
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CHAIRMAN HENRIE:
Well, yes. I think the concern
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10 is that you may want to provide the hybrid format.
It is a way, in fact, of assuring that the technical issues are 12 adequately aired, rather than getting bound up in a procedural circus.
14 COMMISSIONER KENNEDY:
Moreover, is it not a 15 fairly widely held view, at least on the industry side, that a full blown adjudicatory hearing, in the rule-making 17
- context, would cause them not to be interested very 18 much in going the standard design concept.
I 19 CHAIRMAN HE IE:
Well, I have heard some arguments g(V 20 along that line.
21 COMMISSIONER KENNEDY:
I don t know how valid 22 they are.
23 I COMMISSIONER GILINSKY:
It just seems to me that --
24 l D
W CHAIRMAN HENRIE:
It's hard to tell. I wish I us.No,e n con.... ine. l 25 '
could plumb it, but I have had a lot of trouble.
4 -
4 87 18 1
COMMISSIONER GILINSKY:
I find it rather odd 2
toLtalk about these kind of proceedings as rule-making, i
i 3
which are_somehow akin to, I don't know, they are gj 4 a lot closer to' ordinary licenisng proceedings.
In fac/t, 5
.they are very much'like approval of, you know, any one of j
6, the' individual reactor applications.
- )
CHAIRMAN HENDRIE:
I think they will draw l) i1 8
enormously more interest.
I think on any rule-making on 9
a standardized. design or manufacturing license, you are 10 likely to have 30 or 40 intervening parties and --
11 COMMISSIONER KENNEDY: Has that been the experience?
g 12 CHAIRMAN HENRIE:
We have never had one.
We have i
l n
Wb 13 never had such a proceeding.
14 MR. CASE:
Mr. Chairman, I would like to argue 15 strongly against the OGC proposal, and in favor of 16 Commissioner Gilinsky's position on this point.
D 17 CHAIRMAN HENRIE:
Did vou make a deal while Q\\,l 4
18 you were supposed to be making a phone call?
19 MR. SEAPAR:
I am the only one that calls the 20 shots straight.
21' COMMISSIONER GILINSKY: Now you know why the ACRS
]
I 22 '
is called the Advisory Committee on Ed Case.
i if (Jh)\\ 23 MR. S/APAR:
I think there are at least four 24,
good reasons why you ought not to depart frem the An%ra mcenen, Inc. l l
25 l adjudicatory-procedure here, i
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88 a
- l 19 Number one, remember that you are talking about the marriage of a pre-approved site with a pre-approved 3
design, in order to get the full leverage of what that 4
offers in the CP stage.
So this thing is off the critical path, there is no requirement that you offer an adjudiscatory d
6 proceeding in connection with rule-making.
All the statute 1
7 s
says is if you want to get the full advantage of the carrot offered at the construction permit stage on track 9
3, then since you are cutting down on the adjudicatory 10 proceeding there, which you are doing, you will at least 11 have offered an adjudicatory proceeding in connection with 12 the approval of the rule and the approval of the design.
13 I consider it almost unco ionable to attempt 14 to strike down the adjudicatory rights at the CP 15 stage and rely on something less than full adjudicatory 16 rights at the full design approval stage.
17 That is reason number one.
Plus the fact you 18 are off the critical path, you are doing it way in advance.
19 That is reason number two.
20 Number three, you are going to offer the adjudicatory hearing in connection with the manufacturing license. I 22 don't think anybody would suggest anything different there.
'3 And that is another way of approving standardization.
^
24 Reason number four, the politics are horrible.
e.ro.i s. con,n, ine. ;
25 !
l The first Administration bill, without adjudicatory hearings,
89 l
l 20 they goof off that trach and for NRC to come in now and favor something less than a full adjudicatory hearing 3
I would say would be the worst possible politics.
So on both logic, common sense, policy and 5
politics, I would urge strongly, in this esae, for the 6
full adjudicatory hearing.
j W(
CHAIRMAN HE IE:
On both logic and prejudice.
i
~
8 COMMISSIONER BRADFORD:
Is this a pure track 3 section now?
MR. SHAPAR:
It could be a true track 3 or combined 11 track 3 and track 2.
12 I2 g g,{
CHAIRMAN HENRIE:
That is, you could take a 13 combined --
14 COMMISSIONER BRADFORD:
The preliminary design 15 being the combination?
16 1 MR. SHAPAR:
You couldn't have a combined track 2 and 3 unless you were using a final design.
Trach 3, to g
18 refresh everybody's recollection, track 3 being the marriage 19 of a pre-approved site and a pre-approved design, and 20 1 track 2 being the construction permit and the operating 21 j license.
22 The oily way you can marry the two would be you 23 had a final design available.
24 MR. REAMER:
I gather certain issues that would Ac Fgorni Recorters, Inc. ]
25 be decided in GESMO, had there not been a GESMO proceeding
90 l
1landthuswouldhavebeendecidedinindividualproceedings,
- 1 2'
would have been decided by adjudicatory procedures.
But 3'
the Commission decided it was going to do a generic 4
approach, that they might use other procedures.
So the Si fact that in an individual proceedings, an issue would 6
be decided under adjudicatory procedures --
I
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D (y%) 7 CHAIRMAN HENRIE: Yes, I think -- I don't give i
8 much weight to that.
I think there is a certain amount 9l; of trading going on, and I think the argument that if 10 you indeed are going to cut back very substantially on the 11 opportunity for an extended proceeding, public proceeding, i
12 i when the specific plant, the guy giles the CP, then j
13 indeed part of the guid pro quo for that is that the things 14 you are using, both the site and the design you are going 15 to put there have had a pretty thorough going-over in the 16 public arena.
I think people may feel that is a proper 17 '
balance.
18 MR. SHAPAR:
It is out of the critical path 19 anyway.
20 MR. REAMIR:
In the sense of politics, it is 21 l obviously something we defer on to you.
If we were to i
22 answer point by point the points that have been made, I think i
23 !
there are answers to those.
2d !
CHAIRMAN HENDRIE:
I must say I like the hybrid, xx. N w a.conen,Inc.,
25 !
but I am inclined to think probably on balance that the t
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likelihood of being able to go successfully with it 2
is not great.
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I am not at all sure the Commission would in
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fact go that_way.
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5 COMMISSION"' KENNEDY:
In setting the hybrid I
6 thing, we are not ruling out the adjudicatory hearing.
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i 7
They are getting that.
It is only on some restriction as i
8 1 to the total number of issues that are going to be considered.
l 9
MR. SHAPAR:
Yes, but if you wri te that into the l
j 10 statute, you would be litigating the color and dimensions II of that animal from now until Kingdom Come.
I2 p-hllN COMMISSIONER GILINSKY:
D$es the Licensing Board i
13 have the freedom right now to handle an adjudicatory l
Id proceeding by first having kind of a legislative hearing IS I and the adjudicatory one later?
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16 MR. SHAPAR:
I think in answer to that, I am I7 g\\
not entirely sure, but I would argue no.
T re'is a lot --
18 I am sorry.
l9 COMMISSIONER BRADFORD:
I think as practical matter 20 it won't happen that-way.
You would have your legislative 21 1Ltypeithing, but then anybody who wanted to get up and cross-22 examine, you would be hard-pressed to shut them off.
23 MR. SHAPAR:
He is talking about the licensing a
24 board-exercising. authority in a licensing proceeding am wa n. con.<i inc.,
25 on a' construction' permit or operating license.
There the
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92 I
23 legislative history is clear that it is an adjudicatory proceeding that must be granted.
i 3
COMMISSIONER ~ BRADFORD:
So if they held a l
4 legislative type thing first, it might do some good, S
d but if it didn't, they couldn't shut anybody off.
6 MR. CASE:
It is limited appearances I think-7 essentially.
8 MR. SHAPAR: YOu are bound by sections 5, 6, and 9
l 8 of the APA.
10 COMMISSIONER BRADFORD:
And the testimony would 11 nave to be under oath?
l 12 MR. SEAPAR:
I can't recall whether there is a 13 specific -- I think there is oath or affirmation, certainly 14 i !
in our rules anyway.
i COMMISSIONER GILINSKY: So the Commission can say 16 adjudicatory hearings is required everywhere, I mean I 17 have no objection to that, it might be a good idea across 18 the board.
19 DE
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CEAIRMANHENR{: Well, I think the consideration at 20 hand here, the one I want to stick to, is the specific 21 point in the layout under track 3, where you have an 22 early sits review, you have done an'early site review and 23 gotten a site permit, you have decided to use a design 24 which has been approved by rule, you want to be able to
. an,Nuo Aeron.n, Inc.
25 Lfile the Co and now move very aggressively forward with the
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plant and the opportunity for a.public proceeding is
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4 defense of.that, but, gee, that standard design really Ij 5
had a good going-over back here in an adjudicatory-hearing.
6 I am afraid that' turns out-to be a persuasive 7
argument.
i 8
COMMISSIONER KENNEDY:
Logic suggests without l
i 9
that kind of. posture, it.probably wouldn't survive.
l i
10 l COMMISSIONER BRADFORD:
(Inaudible) j 9 g_
h@ lI I CHAIRMAN HENRI:
Which way?
4 A 12 COMMISSIONER BRADFORD:
What I take it the i
t 13 legislation is now, the full-blown adjudicatory hearing.
l 14 MR.SHAPAR:
If they want-to get the full advantage 15 of tract 3.
It is not required,-they can~go with the rule.
16 COMMISSIONER BRADFORD:
That's right, if they 17 havean't gone that way, they get the full blown adjudicatory 18 hearing.
19 MR. SRAPAR:
Yes.
i 20 l MR. REAMER:
Our experience early on with the 21 llprocedures we select here may suggest later down the road 1
22 some other legislative solutions that are needed.
23
- If it turns out that standardized design
'l 24 proceedings involving adjudicatory procedures become AM.ena nwonen, tnc.
25 burdenseme.
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CHAIRMAN HENRIE:
If they go to pieces on us, DB 25 A
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that will sort of scotch the whole thing, and we will be i
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somewhat embarrassed to come back and ask for changes.
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j MR. REAMER:
You can always say you did your 5
I best.
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N" CHAIRMAN HENRIE:
Anyway, it is okay with you 4
1' 72 I
as it is?
I 8
COMMISSIONER BRADFORD:
Yes.
p
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CHAIRMAN HENRIE:
If I try to put a hybrid in there, t
10 why then you would want to discuss it a little more, right?
11,
l COMMISSIONER BRADFORD:
Yes.
)
9
<h 12 (V
I CHAIRMAN HENfIE:
I think he just convinced me.
i 13 COMMISSIONER BRADFORD:
Is there anything to be 14 said for requiring, before a construction permit is 15 1 issued pursuant to this section the Commission shall find 16 that the site is suited to the preliminary or final design 17 i I
that is being proposed?
We may have the possibility of a 18 1 site approved 10 years ago, the stnadard design five l
I 19 l
years later.
There is no obvious reason why those two 20 !
should not jibe.
$1!
MR. SHAPAR:
don't you think that the finding that 22 i we have here, the limited issue, that the purpose for 23 -
which the design approval was originally given, because 4
24 '
of the special circumstances, no longer holds tr ue?
I wom a, con... ine, 25 think that would pick up that point very well.
i
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CHAIRMAN F7.NRIE:
Let's see. You'are pointing to -- 'i 26 l
2 COMMISSI' 'ER BRADFORD:
That would certainly 3
pick it up if we wanted to leave it to a member of the 4
public to come in and show --
I)
- 1 5'
CHAIRMAN HENRIE:
That's right.
The essential N
4 6
finding the Commission has to make on a construction permit i
7 does deal with the specific design and the specific site.
8 COMMISSIONER GILINSKY: Let's see, how would the 9
process work?
The design is approved, he hsa got a 10 site.
He submits an application to NRC.
11 MR. SHAPAR:
Yes, for a construction permit, 12 or combined construction permit and OL.
h g;Q) 13 CHAIRMAN HENRIE:
He probably references his 14 report on the site that he filed earlier, he -eferences the 15 standard design, you know, the ASSAR thing, and he then l
16 will have to supply information with that filing which j
17 covers the match of the plant to the site, j
18 COMMISSIONER GILINSKY:
Now is this just a table 19 or something?
D (vlh 20 CRAIRMAN HENRIE:
I expect it will be a couple 21 of books.
And the staff.will have to review and agree that I
22 indeed'it does fit, and even though it is standard design.
23 COMMISSIONER GILINSKY:
So there will be a brief 24.
staff review, with some kind of a report at the end?
Am#Wat Recorters, Inc.
h CRAIRMAN HENRIE:
Well it is -- what we ara tot) 25 4
4 i
I l
96 27 1
saying publicly is it will be a brief staff review.
2 COMMISSIONER BRADFORD:
But it is limited to the 3
issue of the fit between the design and the' site?
i D
J(d. 4 CHAIRMAN HENRIE:
Yes, and on each site you 5
are going to have a number of rather specific fitting i
6 problems, interface problems between the design and that i
- l l
7 specific site, and the applicant will have to submit j
1 i
8 his specific design details that fit this standard plant i
9 package on his site, and the staff will have to go i l i
10 over those with regard to#the safety question, and also 11 with regard to the conditions on the site permit and make l'
! l 12 sure they match.
\\ \\
13 So indeed I think the Commission could not make I
14 the finding without this specific review.
15 COMMISSIONER GILINSKY:
So that will be a safety 16 evaluation report of sorts?
D 9pJ 17 '
CHAIRMAN HENRIE:
I think there will have to be.
18 I don't think we could even move to a CP just saying well, 19 we approved that ten years ago, or five years ago.
20 1 COMMISSIONER BRADFORD:
The only point I am 21
' raising is nothing in section (c) (1). on page 17 now has i
22 the Commission making any finding at all.
It says "may 23 issue a construction permit or license" et cetera, 3
24 when the applicant has the standard design and the pre-Am. Feet Recorters, Inc.
25 approved site.
L
97 DB 28 1 All I am suggesting is a sentence saying that 2
the Commission shall find that the site is suited to the 3
preliminary or final design.
4 MR. SEAPAR:
I don't think your statement is 5
quite right, Commissioner, because there is a statutory 6
requirement that before you can issue a construction permit i,
7 you make the finding, the ultimate finding of no undue
!li!
8 risk to the public health and safety.
You have to make I
9 that.
10 The other part of it is I would anticipate a 11 whole bunch of staff requirements before they can sign 12 off on.the construction permit in order to carry out that 13 statutory finding that I just mentioned.
14 COMMISSIONER BRADFORD:
What is there l
15 about this particular section that would necessarily key 16 you back to that general --
)
17 MR. SHARAR:
Because the statute -- you are l
18 issuing a construction permit, or combined construction 19 :
permit and operating license, and there are statutory require-l 20 !
ments attending on such an issuance.
i 21 COMMISSIONER KENNEDY:
In the Atomic Energy 12 Act, ro which this is only an amendment.
23 ;
MR. SHAPAR:
If you can' t make that safety 24 '
finding, nobody is home free.
And they would have to be wea R con.n, inc. I 25 flushed out in regs.
0 98 l
29 The main center of attention, I think, would be-(6:00p.m.)
2 the interface.
3 COMMISSIONER BRADFORD: Maybe my question --
' (4 p
CHAIRMAN HE3fIE:
Is there any difficulty with S
the proposed sentence?
6 j
MR. SHAPAR:
That what?
7 COMMISSIONER BRADFORD :
Just that before issuing 8
a ccastruction permit pursuant to this section, the 9
Commission shall find the. site is suited to the preliminary 10 or final design.
11 COMMISSIONER KENNEDY: Where would this be?
12 COMMISSIONER BRADFORD:
I would put it right 13 efter Title V of the U.S. Code there. Page 17.
14 I guess what I am really asking is does that IS '
mean that the applicant in this situation takes on a burden 16 l
of a whole bunch of other findings that would have to be 17' made at that point pursuant to a sectionof the Act that 18 do not immediately appear here?
19 If the Commission has to make that full finding, 20 what would it do, reference its earlier proceedings?
21 MR. SHAPAR:
Yes, I would think so. You would 22 rely as much as you thought it was discreet to rely on 23 l
the work that had been done before.
You might want to 24 }
f Am Nua a. con.L, ine. l look at new information, I don't know.
TJ!ose are the kinds s
4 25 !
b, 1
'i
+
s' 99
[
-30 of-questions'you are going to have to confront.
l!
2 COMMISSIONER BRADFORD:
If you really wanted the 3'
section to convey to the industry the reassurance that 4
I take it we would like, it wouldn't do any harm to have an 5
additional paragraph spelling out how that would work.
i:
'~
6 And for the same reason, I became concerned about 7
the absence of the finding of the final design, I think 8
they would be concerned about the possiblity of a whole
'I l
i 9
range of other issues.
10 But I -- it is getting late.
If it is clear l
11 that it will have to be made, then that would be fairly 12 cosmetic, and I don't see any reason to insist on it.
i; I
S CHAIRMAN HENRIE:
In view of the hour, I would
)
p g 13 4
14 prefer to pass on it at the time.
If language occurs, 15 that seems especially good, you can suggest it.
16 COMMISSIONER BRADFORD:
No, if the finding 17 has to be made pursuant to another section, there is 18 no need to address it.
19 For what it is worth, I have a lot less 20 on the rest, just a couple of pages.
l P
E.-
\\g W 21' CHAIRMAN HENRI:
Can you be here tomorrow?
4 1 22 COMMISSIONER KFNNEDY:
If it is necessary to do
]
23 so, if we start early enough, I woudn't mind, and get 24 through by 10 or'10:30 in the morning.
AmFWMd Raswws.1x.
!~
Dg gd \\J-25 CEAIRMANHEgRI,:
We'might end up having to do it.
.I e
i
100 l
[
r 31 1
But let's go forward for at least a bit longer 2
and see if we can't make progress.
3 On the balance of this section -- some of this-4 owe had a chance to massage a little harder in earlier l
5-proceedings ~than some of the boilerplate.
l 6
Can we advance to 193 on page 20?
Or is that 1
7 too far a leap forward?
j.l li 8
COMMISSIONER BRADFORD:
Let me just get together
]
i 9
with Howard-and perhaps if the staff sees no problem with 1
10 it, they can-put it in and if they do --
- I 11 COMMISSIONER KENNEDY:
What was the problem?
li
! i 12 COMMISSIONER BRADFORD:
The 90-day notice and 13 30-day notice.
I intended to double those, remember?
1 14 I. thought it would give them more time before the proceedings 15 began.
16 But I notice Ed has left, and maybe the easiest 17 way is to check and see if there is any -- I take it 18
-is correct and no harm is done, there is no objection to 19 that.
20 COMMISSIONER KENNEDY:
In principle, if in fact
~
21 it will help the proceeding move forward, I would certainly
'22 favor-it.
If, on'the other hand, what it tends to do is 23 simply' add that much more time to the proceedings, then 24 !
I-guess.I wouldn't see the wisdom of it.
I guess you can n.mus swortus.'sne. l 25 I look at each one of them'and decide.
i
, -. - ~ -. -
l
{.
101
'I
- l 32' MR. SHAPAR
I think in principle it is a good i
1
}
idea.
The only problem is if we follow the way we do 2
1 business now, it would present no problem.
You are not
[
3l talking baout amendments, but abour original authorization.
3 But if you move into a radically different kind 5l I
f system, where you start the hearing almost immediately 1
6 I
and let the~ staff do its work during the hearing
- process, 7
then there'might be a problem there.
j 8
I j
I haven't thought.it through.
9 j
COMMISSIONER KENNEDY:
Which was conceptually j
10
))
what this part was about.
I i
12 l MR. SHAPAR:
I don't think so.
COMMISSIO ENNEDY:
It would get some of the g (\\, 13 work underway.
ja i
]
15 l CHAIRMAN HENDRIE:
Offhand, I don't see a 4
16 problem-with it.
1 l
37 !
MR. SHAPAR:
Would an easy way of handling it be to say 180 days unless the [mmission specifies 18 19 differently?
COMMISSIONER BRADFORD:
That is all right. That
- 20. ;
l
. 21 l would. solve the problem.
l MR.SHAPAR:
That would solve any possible problem.
l 22 COMMISSIONER BRADFORD:
That is fine.
23
~[
MR. SHAPAR:
If you will tell me all of the places-l 2
'4: Nuc meconers, me. {
25 {
where you want it,:we can. set it up that way.
._.mm-.-r-,
~
. ~.
~ a '
102 I,
i 33
-CHAIRMAN HENDRIE:
There may be places where we l
2 would expect the CP to issue, and this may be one of them, 3
and I would worry about, where we expect the CP to i
4 issue in four or five months after filing an application, question, could we notice aperspective CP issuance prior to having received an application?
I would suspect not.
7 So any time it looks as though the Commission's proceedings would go, the total duration would go under the 9
180 days, then you will be in a situation that that 9
10 requirement'will add whatever the delta time is-.
{
11 COMMISSIONER BRADFORD:
Unless you require 12 the utility to notify you in advance.
i 13 D S-CHAIRMAN HENg:
I think even at that, suppose we 14 had been noticed they are coming, or going to come in 15 in two months, and we think we can do the whole shebang 16 in four, I think we would utill have a problem filing a 17 notice that we intend to, or may issue a CP, when we 18
- don't even have an application.
19 I think that might be a little awkward.
20 COMMISSIONER BRADFORD:
Yes, okay.
I agree, 21 and I think 90 days is probably adequate for that type of 22 situation..
1 3'.,
Q W) hJ CEAIRMAN RENRIE:
In this case, w-here in fact 4
24.
b.v o ra n.co n...,inc.
.you are talking about a track which has a specifically U
. 2S expedited CP configuration.
T,51s may be a place where you 4
q
103 t
t'
, i.
i 34 would really hang with the 90 days.
2 COMMISSIOMER BRADFORD:
I am not sure about the i
3 30 at the bottom of the page though. Page 18.
(ph'k D
4 CHAIRMAN HENf.IE:
I don't have a problem, I 5
guess, with increasing that, because it can hardly be a 6
surprise to us that they are going to operate this plant.
i i
7 They have been out there building it for several years,
- 1 8
so that wouldn't be a shock to us.
h COMMISSIONER KENNEDY:
Or to them.
10 MR. SHAPAR:
Ninety, do you want that?
11 COMMISSIONER BRADFORD.
Yes.
One other word 12 i
on that page troubled me,.the word " factual", factual 13 issues in dispute.
Supposing there are non-factual issues 14 in dispute?
15 MR. SHAPAR:
The thought there is, and. the 16 l
traditional wisdom is that where an adjudicatory hearing is 17 i really useful is where you have material issues of gubstantial Ab
\\
18 WW j
fact, something like that.
That is the concept reEfected 19 here.
That is where adjudicatory proceedings really do 20 l their intended purpose, resolving disputed issues of fact.
21 !
l COMMISSIONER BRADFORD:
Okay, yes.
22 l MR. SEAPAR:
You need to tell me where you want l
23 the times, Commissioner. I am not sure from this 24 l Am. row muoner,,,ne. l discussion.
25 l j
CHAIRMAN HENDRIE:
I think for purposes of page
- 1, 104 t
35
- 18,_we decided it is 90 days.-
At the top, and 90 at_the f
bottom.
i l
MR. SHAPAR:
There were other places I think the 1
3 Commissioner had in mind.
4 COMMISSIONER BRADFORD: '
I will get those to you, Y'S' 6
V 5-CHAIRMANHE}RI:
Page 19?
Page 207 7
COMMISSIONER BRADFORD:
Under federal-state 8
cooperation, I threw in.a sentence to the effect: "To the 9
extent.that the capacity is to be sold in more than one 10 state, the Commission may accept the timely findings of all d
ij such states, or may itself make the findings in the states 12 in which the plant is not located."
13 And later on I have a thought about regional 14 authorities, too.
15 MR. SHAPAR:
Of course the Commission doesn't 16 have to accept it if.it doesn't want to anyway, right?
j7 COMMISSIONER BRADFORD:
That's right.
I am 18
) 39 we should be able -- I am still troubled by this situation --
20 COMMISS'ONER KENNEDY: Where it is located in one 21 i
state,;and mos't'.cf the power is going to other states?
22 COMMISSIONER BRADFORD:
Yes, and they say we can 23 make the~ finding for 25_ percent of the plant, but not 24 AmJcent Recorters, Inc }
the~ rest..
' 25 ;
i'l L
105 36 I
MR. SHAPAR:
If you give me the language, I will 2
crank it in.
i 3
COMMISSIONER KENNEDY:
That sounds reasonable.
4 CHAIRMAN HENDRIE:
I think there have been a i
e, 5
number of comments along this line, I expect you heard a 6
good deal of this from the state people.
i l II 7
COMMISSIONER BRADFORD:
Yes.
I:
8 COMMISSIONER GILINSKY:
Let me ask you about this 9
business of things not being judicially reviewable.
10 COMMISSIONER KENNEDY: What page is that?
II COMMISSIONER GILINSKY: Wbil, I don't know, 12 20, 21 and 22.
,1 13 CHAIRMAN HENDRIE:
Let'see, are we cleared on 1
Id page 21 before we take that up?
15 COEMISSIONER BRADFORD :
Sub-section 3 on page I6 21, we still, it seems to be, to be blurred whether NEPA 17 '
continues to be in full force and effect, or whether wa 18 are in effect saying that state certifications, state I9 environmental findings somehow leave us with NEPA.
20 MR. SEAPAR:
This would modify, as I read it --
21 it is hard to say whether it would modify NEPA or not.
22 We must make all of the NEPA determinations that we need to 23 make.
However, we must accept the plus side of 24 the cost-benefit balance.
Of course NEPA doesn't say awNc<w a. con n. inc. ;
25 '
anything about cost-benefit.
6
106 37
- COMMISSIONER BRADFORD
Leave the NEPA power 7
2 out, because'I think we have pretty well agreed we are 1
3 prepared to.let the states do that.
M MR. SHAPAR:
'T) fen the answer is we are not changing 4
5 NEPA,.except'the-court cases have said up to now at least
-6 that you have-go'to do the work yourself.
And that is l
D
- 7 why we are : y a to that extent we are changing court g\\
constructions of NEPA.
e extent that the courts have 8
9 said the Federal agencies can't rely on others.
h 10 COMMISSIONER KENNEDY: Whi [ in line with j
13 the specific legislation which DOT had.
\\
12 MR. SHAPAR:
That is correct.
There was much 13 argument about that DOT legislation, whether it was needed i
V ja or not. Sgme people argued they could do it anyway without 15 legislation.
i 16 COMMISSIONER BRADFORD:
So what we are saying is 17 essentially the guidelines we will promulgate are such 18 that the way we now do things under NEPA will more or less 19 be preserved.
Are you saying that the general NEPA mandate
.will be carried out by the states?
If we just threw 20 21 the'whole thing over to them, we would have no quality 22 control at all.
23 MR. SHAPAR: I think more or less, but I have to 24 j say-that NEPA says nothing about hearings as such.
NEPA w v.,w e m corari tnc.'
. 25 really catches the agency where it finds it.
Calvert Cliffs i
i il
107 38 said we did certain things with uncontested hearings 7
s 2[
and certain things with contested hearings, and whatever j
i pr cedures we had, we couldn't discriminate against 3
environmental rpotection.
4 So NEPA caught us where it found us.
And to 5
1 your question the answer is really the extent in your 6'
procedureal guidelines that you want to take the way 7
we do business, and impose them on the states.
I think 8
I9j that is the fairest answer I can give you.
COMMISSIONER GILINSKY:
You are setting up a 10 h
jj kind of state agreements prog am on NEPA, aren't you?
I MR. SHAPAR:
I think that is a good way of 12 putting it.
Except as I understand the prior discussion, 13 ja you don't want :o get into review of their substance as such, but you want to pretty much set up procedural 15 i
16 guidlines, so they are fair abou the way they -- but j7 l!
I don't think, on the other hand you want to say that each state has got to grant an adjudicatory hearing, because 18 39 ;
we now grant an adjudicatory hearing.
You have that option, l
i f course, in the way you set your procedural guidelines.
20 Iamalittle[
YLc
} 21 l COMMISSIONER GILINSKY:
WL) by this.
Suppose we do a review and we do a really bad 22 23l on some part of it.
I 24 l COMMISSIONER KENNEDY: We, the NRC staff?
I A7.JDFCI 94QOrtert, if5C. '
I gue,s_gbmeone could pE 25 COMMISS10NER GILINSKY:
Yes.
i take us to court and review that.
What happens in the case i
108 t
I i
39 lj it is farmed out to a state?
Do you take it up to 2
the state court?
is there a state proceeding or what?
3 MR. SHAPAR:
Let me address that question. This 8
4:
is a very very imp 9rtant question.
5 i All we have said as far as judicial review, 6,
which triggered the inquiry here, all it says is there 7
won't be judicial review in effect, by virtue of the fact l) 8 that we have used the state's work product in our proceeding.
9 Now whatever opportunities there are for review 10 of the state's work in the state, we don't affect it whatever, II which is why this language was drafted this way.
12 COMMISSIONER BRADFORD:
But there won't be much 13 opportunity for review of the state's findings under state law 4
Id when what they are doing is carrying out our delegation 15 of NEPA.
16 MR. SHAPAR:
I don't think there is any our I7 l delegation of NEPA as such.
We are not creating any 18 new obligation on the part of the states. I think the answer is to the extent the states, 25 or 26 states, thaghave g(
20 mini-NEPA statutes, they are just as much subject, I assume, 2I in the states to state attack as our determinations I
subject to Federal attack.
22 ;
23 Now to the extent that those states don't 24 l have full NEPA statutes, or the equivalent of a full NEPA w.w.
a.u,n....,~. ;
25 statute, people are going to take the state law where they i
109 i
I 40 find it and to the extent that they can attack the state 2
determinations by virtue of the fact that the state agency 3
is performing a state function, which is now judicially 4
reviewable in the state, that avenue of attack remains.
5 The part that is insulated, if anything is 4
1 6
insulated, is where the states aren't required, or 7
.there is no statutory duty on the part of the state agency l
8
- to do anything, but they elect to come in and do environmental 9
work because we give.them money, or anything else, but it 10 il is ho a required ctate function, they do it as a matter of
~1 11 volition because we are giving them money or something.
12 Then there is no way I can see it could really be attacked 13 in the state because there is no state duty to do it. They
+
14 are doing it of their own volition.
15 It would also be insulated indeed in our 16 proceeding.
gc(ld 0 P
17 y@7 COMMISSIONEg: You say we are imposing no new 18 obligation on the state. That is true provided -- well, 19 first of all, is it true as to the procedural requirements?
20 If indeed we st up procedural standards, we are 'mposing
,W W
21 requirements on the states.
22 MR. SHAPAR:
Not in the sense in which I think 23 the other Commissioners raised the question.
T:ey are doing 24 it because they awnt to do it, they want to meet our standards.
wwca n. con.n.
..c.
25 i
But the very fact that they choose to do environmental work
110 41 for us, how is a state citizen going to attack that?
f 2
I COMMISSIONER KENNEDY:
Since they are doing 3 ',
it of their own volition --
4 MR. SHAPAR:
There is no abuse of discretion on 5'
I their part, in terms of their citizens.
I mean it is at t
6 !
least judicially cognizable in the state, under state law.
i COMMISSIONER KENNEDY:
That would be true as 3
well, if we were to establish some standards in a 9
substantive sense.
10 MR. SHAPAR:
It would be true as well, even 11 if the state imposes a duty on a state agency to do something, 17
~
4 or it doesn't.
If it does, it is judicially reviewable in those states.
14 i
CHAIRMAN HENDRIE:
The only way we could make l
15 something work that way would be to provide in the guideline i
16 l
that the state had to pass laws that required it and so i
17l on.
18 l But I think that is a trifle much as a Commission 19 rule.
It is possible, but I would not think we should 20 be laying down things like that.
I 21 l MR. SHAPAR:
Or you could say you only use 22 the system where the states indeed have NEPA statutes.
23 COMMISSIONER KENNEDY:
THe statue could say 24 i that.
< seNuu a.conen, ine.
25 1
1
. ~ -....
- - ~
j 1
l 111 i
42-MR. SHAPAR:
.Another option is to take out the 1
2 requirement of insulating it from judicial review.
j l
3 Then you are throwing out the baby with bath l J 4
water for those states that do have a full NEPA statute.
i 5
j MR. REAMER:
Where you remove judicial review, 6
-r1 that provision is only for the states that didn't have I
7 ade,quate review.
8 (y@
MR. SHAPAR:
That s complicating a very very 9
complex system already.
10 COMMISSIONER BRADFORD:
That is r.ght, but i
11 to have 26 states, if that is the right number --
12
- I MR. SRAPAR:
That is the right number I think.
t,
13
,I I don't know.
14 COMMISIONER BRADFORD:
There are probably more, 15 because I bet alot of-those mini-NEPAs are not ir 16 1
mini-NEPAs but are called that. There was a miscc 17 l in the states. In which.all of the state findings or of them could be made in however erratic a fashion as a state does these things, and then not be subject to review 20 1 from ther on.
We would be completely bound by a finding 21 that lobster larvae love hot water, or wahtever the 22
.particular finding is.
23 MR.SIAPAR: What do you mean we would be bound 24 l
2: se,,c a.cor n, %, l by it?
We wouldn't have to be bound by it unless we chose 25 '
to rely on.it.
~r '
-l i
i 112
}
l 43'
. COMMISSIONER KENNEDY:
That's right, we don't j
2 have to accept any of it.
l
\\
3 COMMISSIONER GILINSKY:
Well, let's see, you are l,
4 setting up a system, and encouraging them to do all of
.5 this, you haven't done it yourself, and then at he end i
1 6
of the process, you say wait a minute, we don't like the 7
way you have.done this, we are going to hae to do it all l
I 8
over again, it seems to me it is not likely to work that 9
way.
i 10 M7. SHAPAR:
No, that is what the guidlines j
i 11 I would assume are for, to at least give some kind of assurancej 12 of a respectable work product.
i l 13 COMMISSIONER GILINSKY:
That they have qualified ljl i!
14 people and reasonable procedures and seem to be behaving 15 themselves --
16 MR.SHAPAR:
Whatever you want to write for guidance.
AIIa<
17 COMMISSIONER BRADFORD:
It 6>esn't bb 18 state here that compliance with the guidlines was 19 reviewable in a proceeding before us.
1 20 MR. SHAPAR:
Remember, that was one of the 21 decisions you made in the earlier sessions, was to leave that l
22 out.
L 23 COMMISSIONER BRADFORD:
I didn't recall that.
24 MR. SHAPAR:
I am sorry, it was in the earlier I&cs.FWeret Reporten, Inc.
25 ;
version, compliance with the guidlines would be insulated --
1 l
I i
(
113 DB44 COMMISSIONER GILINSKY:
I thought we had 2I i
separated procedures from substance.
3l MR. SHAPAR:
Both of them were made 4l l
non-reviewable before, compliance with the gridelines 5l and the adequacy of the work product.
I 6
I understood the decision before to be to knock out the 7
insulation of the compliance of the guidelines from judicial 8'.
review.
9 COMMISSIONER BRADFORD:
That is right. My only 10 point is that I am not sure that is clear here.
11 i
COMMISSIONER GILINSKY:
(Inaudible) 12 d
f MR. SHAPAR:
We hae not specifically or explicitly gg 13 insulated from judicial attack whether or not the state complied with our guidelines.
15 COMMISSIONER GILINSKY:
That is subject to 16 l
judicial review?
17 '
COMMISSIONER BRADFORD:
That is our intention.
18 All I am saying is the language does not really achieve 19 that, I don't think.
20 If you were defending something, somebody made 21 '
l a guidlines attack in effect he would have to be challenging 22 !
the adequacy of the decision, data, analysis, or conclusions, i
i 1
23 :
at least in the sense of the way in which they were reached, t
24 '
w.n.eno m.mn.n, inc, j MR. SHAPAR:
He could simply say you are not 25 following vour own statute and your own rules and regulatiens I
114 e
i I
45 and you should not rely on this at all, because your 2i 1
regulations and the statute require you to rely on it only i3' if you meet'the criteria.
If the state program does not meet the criteria, I want to litigate that in your proceeding
]
4 5
to determine whether or not you can properly rely on the 6
state work product.
7 COMMISSIONER GILINSKY:
What would you be arguing l
about?
The number of PACS they have?
9!
4 MR. SHAPAR:
Whatever the guidelines say.
I 10 COMMISSIONER KENNEDY:
It is not clear to me that 11
-- the point is made at the top of page 22, and it is not 12 clear to me that that is what it says.
13 MR. SHAPAR:
I am sorry, what says?
14 COMMISSIONER KENNEDY:
That it says that the 15 '
procedural aspects are insulated -- excuse me, are reviewable.
.u.h 16 (d
MR. REAMER:
It r.ics on a kind of by implication.
17 I basically think that it does show what Howard says, but 18 you have to get there through the back door.
You have 19 said certain things are not reviewable by implication.
/
D i$
20 M
CHAIRMAN HENRIE:
If it comes to a question of i
n 21 i finding grounds to sue the agency, I haven't noticed any 2l lack of ingenuity.
i I
23 l COMMISSIONER BRADFORD:
But the phrase "the 24 '
awNuu mcen.n. ine. l adequacy of such decision,"
the adequacy of a decison 25 in a procedural --
115 DB 46 COMMISSIONER KENNEDY:
The adequacy of our 2!
decision.
3 COMMISSIONER BRADFORD:
Yes, but in this case the i
4 adequacy of the state's decision.
5 1
COMMISSIONER KENNEDY:
No, Is it?
I thought i
1 6
it was the adequacy of our decision.
j 7
MR. REAMER:
No, it is the state's decision, and
,l 8
I think it is the substantive adequacy that is basically --
I 9
MR. SRAPAR:
That's right.
10 COMMISSIONER BRADFORD:
Yes, but the word " substantive 11 isn't there.
And if it isn't there, then the adequacy 12 of the decision has to include the procedural adequacy.
13 MR. SHAPAR:
We can put in the word " substantive"
{
Xif that would solve the problem.
15 !
COMMISSIONER BRADFORD:
That would help.
16 MR. SHAPAR:
That certainly was the intent.
I 17 i j
CCMMISSIONER BRADFORD:
I just think slowly.
13 CHAIRMAN HENDRIE:
It didn't make me happy, but 19 that was the intent.
l 20 MR. SHAPAR:
Yes, ther were varying degrees I
21 l of enthusiasm.
c 22 COMMISSIONER KENNEDY:
Let's think about what I
23 that really means, and whether saying that -- yes, it 24 !
4 does accomplish something.
But I think that Commissioner A::nmua n. cort.,,, inc. ;
25 Bradford is right, when it comes to 1 coking at our own L
.. ~.. -
116 r
?47-position on this matter,
'I can imagine a case in which F
1
2 the question of whether the procedural guidelines have been t
i 3
followed, talking'about how many guys they have, what their 4
qualifications are.
Every one of them will be subject to challenge, I would think.
6 MR. SRAPAR:
That follows the discussion you 7
had before about this at a prior time.
8 COMMISSIONER KENNEDY:
Yes.
I am wondering what 9
the implications are.
I guess that doesn't -- it helps
]
10 some, but not all that much.
11 CHAIRMAN HENDRIE:
I don't quite catch the 1
thrust.
It appears to me that there will indeed in spite of these provisions be a good deal of judicial exercise trying to demonstrate we have followed our own procedures.
15 D
(V $
COMMISSIONER KENNEY:
Or that.the states have A
16 followed our procedures.
17 CHAIRMAN HENDRIE:
Yes, but that was the view of 18 the Commission earlier on.
I don't know that I detect any 19 majority support for putting back in the insulation of 20 the procedural aspects here.
21 l What is the language you are going to use?
The 22 adequacy --
ph#
23 E'
SHAPAR:
Substantive adequacy.
4 24 CHAIRMAN HENDRIE:
That again keys the thing, and w.e*= moon.,,,ine.l 25 i l
I think-all atcmic energy lawyers from sert of C minuses t
G e
f 117 l
l il j
~4 8 -
. ort up t will-perceive the target and the aperature to-l' 2
shoot.at it,.and will fire. vigorously.
a 3'
.Do we need --
l 1
4' COMMISSIONER BRADFORD:
I would like to brood l
5 l:
overnight, if I can, on the possibility of changing that l
around to an affirmative formulation, that is, say only the 6
i l
i 7
conformance to the Commission's guidelines should be reviewable 8
something of that nature.
l 9
COMMISSIONER KENNEDY:
We are as a body convinced 10 that the guidelines should be limited only to procedural 11 ones, that indeed we should not be setting or establishing any kind of. standards in terms of substantive review.
I3 COMMISSIONER BRADFORD:
That is right, assuming 14 four reasonably minded men can ever agree on the difference 15 between procedure and substance, I agree with you.
16 COMMISSIONER KENNEDY:
But here I think there is 17 '
no question about what this is saying. All we are talking I8 about is you guys have got to have 10 guys of this type, 19 and you should have a hearing of this kind, and you 20
- certainly should have gone through the right kind of discovery, 21 '
all.of the parties should have their opportunity to --
2 MR. CASE:
I don't know, I think you could l
33 j conceivably'say in covering fish you have got to consider i
24
/
Aca Nm neconen,inc.!
the following aspects, and list ten. aspects.
I think those e
25 i j
areLprocedural.
i
~.
4 118
,'r i
i 1
l 49 MR. SHAPAR:
-I think that proves conclusively j
2 Mr.'Bradfords' point.
l 3
'?
l COMMISSIONER GILINSKY:
I just would like to 4
see-this all-laid out.
l 5
. COMMISSIONER KENNEDY:
If it goes that way, I i
6 I
am'a little less concerned about what we are doing here.
7 MR. CASE:
I *could like it to go that way.
i COMMISSIONE0 KENNEDY:
It seems to me that is i
9 the only way we ara going to be sure we have a product at l
10 the end-of this process which the Staff can fairly be l
11 expected to accept.
And that is what is at issue.
We have 12 got to set up a regime here in-which the Staff i going
)-
13 to be prc71ded something from the states, which there is l
- a. reasonable prospect they can say "This pretty adequately 15 covers" --
MR. CASE: Before the fact.
1 4
COMMISSIONER KENNEDY:
Because the Staff is going 18 to have to make a decision that in fact NEPA has been 19 satisified, isn't it?
20 MR. SRAPAR:
In view of this discussion, could I l
'l
.just raise another option for you that may, I think, solve 22 part of these problems?
23 That is, forget about insulating judicial attack, 24 forget about criteria, give yourself the authority to rely zami n,,,,,, w, !
an 25 1
on the word product of the states, make the need for power I
i 1
119 b
50 t
flat out we must accept, and to the extent we rely l
n 2
on state work product, we will have to defend it.
l l
3 COMMISISONER GILINSKY:
I think I would be more 4
comfortable with that.
D
[Jt 5 CHAIRMANHENpIE:
I think that is a great difficulty.
6 This staff then -- in that case, let's withdraw the i
7 section, because you put the Staff, the Environmental i
8i Division, in a position where they are going to have to l
9 conduct a parallel and subsequent review, which reproduces i
10 the state stuff in order to be able to go forward and 11 testify as expert witnesses on it in detail.
12 MR. SHAPAR:
Except the statute contemplates, 13 Mr. Chairman, consultative discussions with the states.
The 14 way I see it working is when the application comes in, or 1
15 even before that, the Staff and the state staff get together 16 and decide what part of the environmental review, with i
17 '
money coming forward --
18 CHAIRMAN HENDRIE:
I am sorry, Harold Denton 19 can't defend a state product.
20 MR. SHAPAR:
Then the state could come forward 21 with its own witnesses and help us defend it.
22 COMMISSIONER GILINSKY:
I don't see why you have 23 to do it all over again.
There are a lot of calculations 24 involved.
You just have to understand them.
Am u na n.conm.ine.;
25 MR. REAMER:
Howard, doesn't the DOT statute l
4-
.a :
120 1--
t i
51-make the state officer' the responsible Federal official i
2 l-for purposesTof the EIS?
Why couldn't you designate 3
the state offical for the purposes of the findings and the decisions the state has made to be the responsible Federal 5l officit r
l 61 "4 PAR:
I can't recall if that is so or not, j.
7 It may
,cy complicated structure which 4
was tailot say the program arose --
9 e would work here.
1 i
I am not a 1
l 10 MR. REAMER:
I think it could work here.
3 11 MR. CASE:
I don't see how you correlate..(inaudible) i 19 j
MR. SEAPAR:
THey are havi g a good deal of 13 difficulty coming up with --
14 COMMISSIONER KENNEDY:
My difficulty, I think, 15 is the same one that Ed. has.
4 16 CHAIRMAN HENDRIE:
I don't understand what that 17
.1s.
l MR. CASE:
My difficulty is unless I can be 19 fairly well assured the state is going to do a good job 20 beforehand, by covering'the right subjects, having the 21 right talent and all of that, the thing comes in here,
.I' see-it is no. damn good, then I have.to do the-reviedw
'3 land I am on the critical path.
24 A:eJ. ora n.coners,ine.
COMMI$SIONER KENNEDY:
That's right.
~
.25 i i
l MR. SEAPAR:
What about my suggestion, you j
.I i
c 121 i.
I 52 1
-thatLyou are going to get.together with the state on an 2
informal basis;at the beginning and divide up the environmental:,
l' 3
~ review, i l 4
CHAIRMAN HENDRIE:
-You are going to have a 5
set of guidelines.-
6, MR. CASE:
On how he does it, what he considers 7
in his review.
Once he says he is going t'o do that, has I
8 the talented people, then there is a high probabiliy, it 9
seems to me, that his product is acceptable.
t 10 CHAIRMAN HENDRIE:
Yes.
What's your problem?
11 MR. CASE:
My problem is if these are only 12 procedural guidelines, do I have the authority to tell him 13 what kind of subjects he must cover in his review of fish, 14 for instance?
15 COMMISSIONER KENNEDY:
And essentially how he 16 must cover them.
17 CEAIRMAN HENDRIE:
Of course.
That is what a 18 procedure is.
19 MR. CASE:
Then I am satisfied.
20 COMMISSIONER KENNEDY:
THen we need to be more 21-explicit, it seems to me, to be sure that is what we are 22 talking about.
23 CHAIRMAN HENDRIE:.Of course. Y0u say you will L
24 cover: fish, and the species as follows: A,3,C,D,E,F,G.
l _. Am,Nceu n.ranm.ane,
'25 MR. CASE: And give him Reg. Guide 4.1, or whatever itLis for.'that?
1
,+
j.
v i,.4 i
122 jl l[
53:
CHAIRMAN HENDRIE:
Yes, essentially yes.
There
! ?
- 2 Guide'4.2 where it says, I don't may be places in Reg.
l.
3 3
j know, you are supposed to -- the water is not supposed to 4
be hotter than 18 degrees.
That is substance.
Take that out.
And you have to find that more thLn 55 percent of I
6 l
the fish eggs do something or other.
That is substance.
i 7
i 1
Take that out.
8 But the fact that you have to count the fish eggs 9
and determine the fraction that get killed in passage through 10 the condenser, that is procedure. Okay?
And you can lay that 11 out, for God's sakes, in telephone book sized documents, i
l 12 i
which I trust you won't do, but in principle you could, t
13 COMMISSIONER KENNEDY:
That is a littie different 3
i 14 than the way procedure was being described the other day, I
15 and it takes care of.my concern, if that is what we'are 16 4
talking about.
.I don't think that is the way either of us
?
17 understood it the sther day.
18 VOICE:
Yes, it's a little different, but I am 19 glad to accept it.
20 COMMISSIONER KENNEDY:
Yes, I am delighted.
21 That. resolves my problem.
.MR. CASE:
Get that in the legislative history,
. 23 will_you?
24 COMMISSIONER KENNEDY:
I think that would take hr., ore aeronen, Inc.
25 '
L care of. Peter's problem as well.
a-
o 123 i
54 ll CEAIRMAN HENDRIE: And you have a leaving problem?
2f COMMISSIONER GILINSKY:
Yes, I have to leave.
,I I only have this and one other item that I was going to d
raise, a matter of wording on page 25.
i 1
5, MR. SHAPAR:
I borrowed that from the Kennedy bill.
I l
6l COMMISSIONER GILINSKY:
I guess I would, you know, 7
just say proper behaviour is something --
8!
COMMISSIONER KENNEDY: We are going to get to that 9
when we discuss that whole section.
I 10 l CHAIRMAN HENDRIE:
What does that word mean?
l 11 !
MR. SHAPAR:
It means stubborn, recalcitrant.
t I2 COMMISSIONER BRADFORD:
That is not all it 13 l means. It is morally-- moral suasion... I will accept the Id l dictionary --
15 CHAIRMAN HENDRIE:
It sounds 'ike the right word.
l 16 l Do you have an objection to it?
I7 COMMISSIONER GILINSKY:
I don't know, it's a --
18 MR. SEAPAR:
Its a legal term of art.
19 COMMISSIONER KENNEDY:
I would like to discuss the 20 j entire section.
Indeed I will.
l i
21 i (Simultaneous conversations, inaudible) 22 COMMISSIONER GILINSKY:
It is not clear to me i
I
,.3 1
hcw that thing would work, I am not sure --
i 1
Mf 1
CHAIRMAN HENDRIE:
Well, I think, you know, there's 2.w.Nmi R. cort,s. inc.,
s3 l a lot of terrain out there to be werked over in some detail.
l
124 I
It seems to me that the framework here is one within 55 2
which you can work out those things, by retaining to 3
us specifically the NEPA responsibilities.
The only place 4
you are really relieved of that is the need for power, 5
and we have all agreed on that.
Lb g) 0 ForAdr rest, the question of accepting state 7
analyses and so on, we will do a good deal of feeling our 8
way along I am sure, and ne.otiate on a state by state 9
basis, and probably plan by plan.
10 l i
But the framework strikes me as -- but it seems 11 to me on the particular point that we have stalled on here, l '~
the effort was to avoid making a piece of state analysis I3 subject to whatever proceeding the state may require or 14 challenge in the state court may be permitted, And then 15 putting it in our report and making it liable for attack 16 i
again, both in our proceedings and in the Federal courts, I
I7 and I am not at all sure that the State of New Mexico is 18 going to be glad to send its people up here to defend it on our behalf.
20 i
I think furthermore if it is challengable in our 21 proceedings, we have always found it very difficult not to 22 have a staff member, professional staff member, who is able 23 to step forward and testify as an expert witness.
94 {
When our stuff comes from the laboratcries, there Wm:'nes Reporters, inc. i; is a staff engineer who has work with him in the preparatien
a.
~I 125 l
l56 1
of that stuff, has reviewed it, and-is prepared to 2
COMMISSIONER KENNEDY:
I never have understood l
3! 'why we just didn't get the guy from the lab to come 4
in.and be the witness.
5 CHAIRMAN HENDRIE:
We do.
But we also have 6
- a. cognizant. staff, an environmental specialist, who was 7
the overviewer.
l 8
COMMISSIONER GILINSKY:
What can't we treat the 9
states like -- (inaudible) 10 MR. SHAPAR:
As an option.
II COMMISSINER GILINSKY:
I am not sure that this 12 isn't okay, but I guess it is not clear to me what I
13 the. remedy is, if a state does a consistently bad job and Id it requires review, would you pull back the qualifications 15 of a state? I mean, I haven't thought it through, 16 and I guess it is just not clear to me that this does the 17
. trick.
Maybe it.does.
\\
l 18 COMMISSIONER BRADFORD:
T.dere is another point on
(} b 19 another section that is worth considering here, too.
Consider 20 what happens if it doesn't fly.
Supposing that it-- I assume l
21 !
that those groups that are partail to NEPA --
22 COMMISSIONER KENNEDY:
Okay.
We are adjourning, 23 but I assume we are going to discuss this further.
If we 2d are going to do it, I would urgently ask it be very early an.r:.c-e n.mnm inc.,
25 !
on Friday morning.
t
}
a-
v ).-
t.:,
126
,l l:
DB 57-i!
1 CHAIRMAN HENDRIE:. 8:30 Friday morning.
I' )
3 2
Do I need a vote to hold it?
~
3
. COMMISSIONER BRADFORD:
It is a continuation.
4 CHAIRMAN HENDRIE:
Who is-the sunshine 5
man.
6 MR. PIAMER:
We recommend that we treat the i
i 7
transcript of this proceeding the same way we have
!l
\\
1 8
treated the transcripts of all of the others.
i 9
CHAIRMAN HENDRIE:
It is so ordered.
10 Now I am compelled against -- if there is objection II to holding a meeting at 8:30 on Friday morning to continue this discussion? [ e need a vote to hold it?
12 13 MR.-REAMER:
Probably not, but I would like to Id have an opportunity to check that.
15 '
COMMISSIONER KENNEDY:
Well, why don't we just 16 vote?
I7 l CHAIRMAN HENDRIE:
In that case, I call for 18 a vote to hold'a meeting on short notice, and a vote I9 to close it if such a vote is necessary.
20 COMMISSIONER KENNEDY: Aye.
2I
' CHAIRMAN HENDRIE:
All right, it is so ordered.
22 (Thereupon, at 6:45 p.m. the meeting was 23) adjourned, to reconvene at 8:30 a.m.
2d Friday, September 23, 1977.)
resuuc mecen.n, ine. !
' 25 f i
-