ML20148T412

Transcript of 781121 Discussion of Petition for Hearing by NRDC in Tarapur matter.PP.1-48

ML20148T412
Person / Time
Issue date:	11/21/1978
From:	Ahearne J, Bradford P, Hendrie J, Kennedy R NRC COMMISSION (OCM)
To:
References
REF-10CFR9.7 NUDOCS 7812050112
Download: ML20148T412 (48)

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,., ; L, 'J - s NUCLE AR REGUL ATO RY COMMISSION - T I IN THE M ATTER OF: PU3LIC MEETING DISCUSSION OF PETITION FOR h?ARING SY NRDC IN TARAPUR MATTE r Place -Washington, D.C. Date - Tuesday, 21 Novemi:er 1978 Puges 1-48 s i I ..eren.:

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1 1 \\ I i DISCL. AIMER - This is. an unofficial transcript of a meeting of the Unf ted States Nuclear Regulatory Commission held on 21 November 1970 in the Commission's offices at 1717 H Street, it. W., Wasnington, D. C. The meeting was open to public attendance and observation. Th'is transcript has not been reviewed, corrected, or edited, and it may contain inaccuracies. . The transcript is intended solely for general informa'tfonal purposes. As provided by 10 CFR 9.103, it is not part of the formal or informal record of decision of the matters discussed. Expressions of opinion in i this transcript do not necessarily reflect final de' terminations or beliefs. No pleading or other paper may be filed with the Commission in any proceeding as the result of or addressed to any statement or argument contained herein, except as the Commission may authorize. e e

-s 2i s 1 UNITED STATES OF AMERICA -1 2

NUCLEAR REGULATORY COMMISSION '

j t 1 3 l-I PUBLIC' MEETING i l 4 DISCUSSION OF PETITION FOR HEARING BY NRDC IN TARAPUR MATTER f - 5 6 7 Room 1130 8 1717 H Street, N. W. Washington, D.C. 9 Tuesday, 21 November 1978 10 i The Commission met, pursuant to notice, at 9:55 a.m. 11 BEFORE : 12 D:R. JOSEPH M. HENDRIE, Chairman 13 RICH 7.RD T. KENNEDY, Commissioner 14 PETER A. BRADFORD, Commissioner-15 l JOHN F. AHEARNE, Commissioner. 1 16 I f 17 I .)- 18 [ .19 j. 20, l 21 l l 22 I 23 l p Fac tret Reporters, Inc. I 25 i i I (. I

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%a.. 3' lR1425-I P, R - O_ C, E, E : D I N G S_ 4 2-i (apa L li CHAIRMAN HENDRIE: -I think.we niay as well ' go - Iavid~l 3'

ahead.

The. Commission ~. meets this morning to= discuss a-- ..l i 4 petition for hearing in'the Tarapur license matter, the l 5 The Commission, I think, fought-current'Tarapur~1icense. 6 to start out by hearing from the general counsel's office. 7 MR. STOIBER: Thank you, Mr. Chairman. The 8 purpose of this meeting is to discuss the issue of whether or 9 not the Commission will order a hearing or other public r 10 proceedings involved with the issuance of export license X'sNM-1222, which is the latest'in the series of export 12 license applications for shipment of low enriched fuel:to 13 L the government of India for use in the Tarapur facility. 14 The matter before the Commission now is only the p 15 i hearing issue, not the issuing -- the substance involved - j 16 1 with the issuance or denial of license application. ] 17 l And I thought I would divide my comments this. 18 l morning into two parts. First of all, I think it important l 19' i at this stage to get a clear idea of the chronology for the j j 20 decision that the Commission faces, how the present matter 21 stands with respect to the statutory deadline set forth in 22 'i the Nuclear Nonproliferation Act, e 23 !' And after I have discussed that briefly, then I 24 Aae Feocrat Reporters,'inc. Would mention some Cf the legal issues which the Commission g + !25 l L.would want to' consider in. considering the issue of whether l .L

l' 4 4 david 2 or not to actually convene a hearing or to otherwise have l I 2 public written comments. 3l Now, the-chronology of the~ decision, as you l know, under the Nonproliferation Act, the Congress intended 5 that ordinarily the Commission act within a 60 day period 6 after the receipt of the executive branch views on the 7 license application. 8 On September 18 of this year, the NRC received 9 the executive branch views indicating their belief that 10 all the licensing criteria were met and other statutory 11 requirements had been fulfilled and that the license should 12 be authorized. I3 That gave 60 days in which'the Commission could I# then pose additional questions or issues to the executive branch. On November 17th our staff did submit such a 16 request for additional responses on several issues to the I7 executive branch, thereby in our view legally tolling the 18 l statutory 60 day time period. 19 l Therefore, the 60 day period will in fact begin to run again at the point at which the executive branch l 20 1 21 has furnished us a complete set of responses to the issues j 22 or the questions we have raised. I understand from the staff 23 l that this is anticipated to be done in the form of a 24 es Fecord Reporters, Inc. ; 25 i

that, but in terms of thinking about how the time limits run, i

l

5 I assume that if the Commission were able to schedule a david 3 I I 2 briefing in the first week of December, that means that the 3ll first 60 day period would then run at approximately February 2 4 { through 6 during that week. That would mean that the l 5 Commission would be expected to decide within that period -- 6 COMMISSIONER KENNEDY: Excuse me, could you go 7 back over that date again? 8 MR. STOIBER: All right. If the answers to the 9 Commission's additional questions are received during this I 10 ! briefing which might occur during the first week of l II December, the first 60 day statutory period would then run '2 into approximately the first week of February and therefore l 13 that would set that first date. I Id Now, in addition to the additional questions, 15 the tolling of the statute there 's a second means of tolling 16 the statutory time limits, and that is if the Commission 17 { embarks upon public proceedings under its rules -- 18 dOMMISSIONER KENNEDY: Excuse me, could I go 19 back now; I want to be sure I've got this 60 in my mind. I 20 want to be sure I am remembering these dates which are 21 coming more rapidly than I as a fairly inept historian can 22 l swallow. I 23 ! On September 15, 1978, something like a year after 9 24 the license application was filed, the executive branch did

.e..p.aer;i secorters. inc. g 25 I write us a letter saying we think this license ought to issue.

i 4

~ 6 i david 4 I So now what we have said is by the application of the i 2 statute and various steps taken under it, we are talking-I il*l about sometime in February when our time limits sort of run out. l 5 MR. STOIBER: That's correct. 6 COMMISSIONER' KENNEDY: Provided no additional 7 questions are asked. 8 MR. STOIBER: Well, no additiot..i questions may 9 now be asked, since the first 60 day period has run. I 10 ' COMMISSIONER AHEARNE: We can ask the questions, .i 11 l but it won't extend it.- I2 MR. STOIBER: That's right. It won't extend the 13 time. i I4 COMMISSIONER KENNEDY: So it is February 1979 i 15 when the time finally runs out. 16 MR. STOIBER: Unless the Commission embarks upon I7 -proceedings for receiving public participation in the license, I8 at which time another rule or another tolling of the statute 19 ' i begins. l 20 i This _ a more open ended legal effect without 1 21 the kind of. precise limits that you see in the rest of the 22 statute. What the statute merely requires is that the 23 additional 60 days begins running when the Commission's 24 l public proceedings are terminated. .o.Feoeret Reporters, Inc, 25 i We have some guidelines in our new Part 110 of our i l l

l 7 I 1 devid5 regulations about how we expect the Commission to proceed, ) but it;would be possible for the Commission to adopt a rather ! 2 3l flexib'le or even extending the process of public proceedings, l which would continue past the first of the year or even 4 Y "O' 5 6l COMMISSIONER KENNEDY: Only at the conclusion of which -- an announcement of which, I suppose, we make. We 7 now say our proceeding, whatever it is, in fact is completed. g Only then the 60 days begins to run once again. f 9 f MR. STOIBER: That's correct, 10 ' COMMISSIONER KENNEDY: How do we determine when in l j) l fact the public procesi.ing has been completed? g MR. STOIBER: Oh, I think that would be a decision 13 of the majority of the Commission that the public proceeding g had'been-completed and therefore the additional 60 day 15 i i peri d for Commission decision was operating. l 16 COMMISSIONER KENNEDY: It could theoretically go 37 n f r sometime while even the question as to whether the 18 proceeding has'been terminated is debated. 39 COMMISSIONER BRADFORD: It's an interesting 20 j gl question, isn't it? If two Commissioners can call for a hearing, the question is how long two can keep it going? 22 (Laughter.) g COMMISSIONER KENNEDY: It takes a majority to end g _m .m._...a f ID* 25 i f

8 l. _I ? Two.to-start.and three;to stop?'j ' david 6 CHAIRMAN HENDRIE: L 1

l MR. STOIBER:

Two'to~ keep it going under our I' l rules, not by statute. Presumably,.the majority.could then i vote'to changeLthe rule -- .d i COMMISSIONER KENNEDY: Change the rule -- or I l [ am misunderstanding. I thought you said that once -- two Commissioners can initiate the hearing. We discussed that. I once before, indeed, in the Tarapur matter. Two Commissioners can initiate a hearing, but I understood you to say that a majority of the Commission could i 10, then determine that it has been -- that proceeding has been y completed. MR. STOIBER: Yes.. 13 COMMISSIONER KENNEDY: Okay. l 14 ,i 1 Presumably,.however, unless one could muster a i 15 L i majority for this purpose, it could go on for, you know, into the aeons of the future. 17 l COMMISSIONER BRADFORD:

Well, I want to make clear 18 i

i 1 that I'm speaking'in the abstract. l 19 ' l i (Laughter.) t. 20, i -Not in this particular case. 21 i 1 COMMISSIONER KENNEDY: So am I, I hope. i '22 I i I COMMISSIONER BRADFORD: But I'm not sure I agree i 23 l } with the general counsel's office interpretation of what it 24 j c.or.oersi Recorrers. inc.- g gg g g gg g g, 6 j e .. ~, ~ ~

~ 'l l 9 'i 3 $ david 7' l' COMMISSIONER. KENNEDY: I was asking because 2 I simply'didn't know, and now I would gather'that we are. 3 not all that clear, and I think we ought to be sure on that 4 before we begin this discussion. \\ 5 COMMISSIONER AHEARNE:. Could someone give me a 6 background,'a fairly unusual procedure by whie a minority 7 can initiate the action? 8 MR. STOIBER: This was the decision of the-9 Commission based largely, I think, on the Supreme Court 10 ! practice of granting certiorari for review. In other words, II in the Supreme Court it only takes'a vote of four of the 12 nine justices -- l 13 COMMISSIONER AHEARNE: Thank you. You have just Id answered the question in a way that you may not realize i 15 either. f' 16 (Laughter.) l 17 COMMISSIONER KENNEDY: We need to go back though 18 to the point because, Peter, I asked the question -- I 19 thought I understood what you said - .I was accepting it. 20 Peter has some difficulty -- i 21 COMMISSIONER BRADFORD: I haven't thought about i l 22 it at all before. 4 23 I COMMISSIONER KENNEDY: We need to get that clecr, 2d it seems to me. Ace Fooeral Reporters, Inc. "25; COMMISSIONER BRADFORD: Yes. And it's probably ] largely up to us as to how we interpret the rules. It may I i

4 ' I. y,-., .. ~ 10 1 david 8 turn out that a majority can interpret them in whatever I. 2 way the. majority sees fit at. the - time. 'But'it does seem I' : i l a little curious th'at you would start a hearing because 4 two Commissioners felt that there was something on which i S the~ hearing or further proceedings was required, that the 6 next day a majority, the same three who voted against it 7 on day one could close it down on day two as having been 8 completed. 9 COMMISSIONER KENNEDY: That hadn't occurred to me. ! I 10 ! I. assumed that once the proceeding had been elected, then 11 proceedings do normally run a certain course; that is, 12 in deciding to have a proceeding, you also decide generally 13 the format in which'it's going to take place, the time limit 14 it's going to take to complete it, or to get.the papers in, 15 l if that's what it is, or hold the hearing, and then decide i 16 on it. l 17 l But then - the question is: would there be room to continue the proceeding if someone ' thought that that' was - '19 desirable? That was my question. 20 Your point is a different one,'and that's an interesting question too. That hadn't occurred to me. 22 MR. STOIBER: I would point out two things. First 23 of-all, the point you make, Commissioner Kennedy, is right, 24 that'although the two Commissioners can order a hearing, it ,ee.Feoeral Rooorters, Inc. 25 takes a voting majority of the Commission to determine the 1 i 1 A ,.n

11 s I david 9 form and the chronology ' of the~ hearing, and this certainly I I 2 f implicates a majority approval of at least the process.- 3 COMMISSIONER KENNEDY: Which normally encompasses the time period in which it's going to take place. 5 MR. STOIBER: The second point also is that as a-rule 6 of the Commission, it might well take a rule making public 7 notice and the other procedures to change the rule of two. 8 Having clarified or obfuscated the chronology -- 9 (Laughter.) l 10 ! CHAIRMAN HENDRIE: It's not clear to me that that's I true or which way it's true. I2 (Laughter.) 13 At any rate, Commissioner Ahearne has a further M question. l i 1 '5 COMMISSIONER AHEARNE: It's obvious from the l l bill that the executive branch question must be within the first - I7 60 days. IO MR. STO7.BER: Yes. [ I COMMISSIONER AHEARNE: When must the decision 20 for publ-ic hearing occur?- 2I MR. STOIBER: I believe it is the view -- it is I,

• 2 Il the view of the general counsel's of fee that the. decision to l

23 l embark upon public proceedings must be taken eithe within l the first 120 days or if the period for Congressional -1.w.FecorrA Rooorters, Inc g .l authorization has been tolled by virtue of additional i I l t,

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hvid10 1 questions, then it must_beltaken within that period _in. 2 which t' e president may not authorize the export. I L i 3 In other words,.it_may be=taken at any_ time I 4 until the' president has in fact authorized the export by l 5 executive order. i 6 COMMISSIONER AHEARNE: Are you saying that the t 7 call for the public hearings stays the president's action? 8 MR. STOIBER: Yes. 9 COMMISSIONER AHEARNE: And that stay of the I i 10 ' president's action can occur any time up to _ the point that i 11 he has actually committed the action? 12 MR. STOIBER: Yes. 13 COMMISSIONER AHEARNE: So there is not even the i i 14 120 day constraint. i 15 MR. STOIBER: Well, you see the president's action ' i 16 is not automatic. 17 COMMISSIONER AHEARNE: I understand that. r 18 MR. STOIBER: SR) if he has chosen not to take 19 that' decision at that' time, that-still provides the 20 t Commission with the legal latitude to embark upon public i 21 proceedings. 3 22 COMMISSIONER AHEARNE: I would imagine we would 23 always have latitude to embark upon public proceedings. 24 l My question is: is the way the law written such .ca.s.omi n.oonm, ine, l 25 j that once we embark on a public proceeding that the law I l

13 idavid11. requires him to stay.his action? i MR..STOIBER: Yes. 2 { COMMISSIONER AHEARNE: Interesting. And the i 3, 1 legislative history supports that interpretation? 3 I MR. STOIBER: Yes, it does. l 5 COMMISSIONER AHEARNE: One other question: is there anything in the legislative history or the bill that 7 indicates that there can only be one such public hearing? g MR. STOIBER: No, there is not. 9 COMMISSIONER AHEARNE: So that at least -- and 10 ' I recognize this is again purely academic -- in theory if l jj y u had a Commission in a position where three believed that 12 an action should go forward and two believed it should not, that that too could always consistently call for a public j g "9' i 15 l The public hearing could be held, the three g votes to go ahead; the two can call for another hearing, and as long as the two kept calling for a public hearing, the l president could not take action. j 39 i MR. STOIBER: Unless the Commission changed its I rule. COMMISSIONER AHEARNE: But under the current 5 g procedure -- g COMMISSIONER BRADFORD: I had thought about that. 24, r.e.owei menonm, Inc. e sue @ der de QMsh & G h fm mm e l

i I, 14 $ avid 12-1: forL wo public hearings. Are=you~ confident ~in saying that-t -2 there could be any number of.public hearings on one 3. application? l 4 MR. STOIBER: The way the statute is written, l 5 it states -- l 6 COMMISSIONER BRADFORD: There might be a limit 1 l 7 on the willingness of the ' public to participate, of course. 8 COMMISSIONER KENNEDY: Not if we pay for them on 9 the one hand and provide them free services and extend so 'o ! on the other. What difference does it make? They can I i i 11 sit here all day long on our payroll. l f 12 COMMISSIONER BRADFORD: That would take a majority ! l 13 vote then. l 1 14 MR. STOIBER: See, the way the < statute is written, it 15 ties the public procedure issue to our regulations. It 16 was written, however,if theCommission has commenced procedures 171 for public participation regarding the proposed export 18 under regulations promulgated, so the Congress was in fact 19 ' prevalidating the approach that the Commission would adopt 20 l under its regulations. l 21 CHAIRMAN HENDRIE: Okay, John? 22 COMMISSIONER I.HEARNE: Well, I think I understand 23 [ it. I'm not sure it's okay. 24 MS. BECKER: I don't think our rules really 25 ; contemplate more than one hearing. - It may be a hearing that's i l I

15. i david 13 very extensive, and that takes a long period of time and i 2 that broken up with.maybe time periods in between when i 3 i the proceedings aren't being held. i i COMMISSIONER KENNEDY: That.would be the question 4 ! i 4 5 of when the Commission concluded that in fact that its i 6 hearing had been concluded. MS. BECKER: Yes. 7 MR. STOIBER: See, the operable statutory language i 8 9 is not " hearing." The operable statutory language is 10, " procedures for public participation." And that could I i 11 pssume be a series of hearings or other procedures or j l 12 whatever. 13 COMMISSIONER KENNEDY: Written submissions l l 14 followed by oral hearings followed by further written i 15 considerations? I suppose limitless opportunities. 16 CHAIRMAN HENDRIE: Before you plunge ahead, for i 17 whatever the theoretical possibilities within the framework l 18 l of the statute may be, it seems to me that it is very 19 unlikely that there would be multiple hearings or that if 20 i we decided to have a hearing, we wouldn't try to move i 1 21 expeditiously to a reasonable process that would have a 22 beginning, a middle, and an end. 23 ! COMMISSIONER BRADFORD: At least the latter two. 24 : CHAIRMAN HENDRIE: At least the latter two. ao.Frecrc1 Reporters, Inc. ! 25 By way of some definition -- 1 i i i l

.16 j' savid14' . COMMISSIONER KENNEDY:.We have some notable-ones' 1 p 2 which.have'beginnings and' middles and'neverHhave.come'to. an.end. 3 4 COMMISSIONER BRADFORD: .We had one yesterday, .)- i 5 I think. 6 (Laughter.) CHAIRMAN HENDRIE: By way of definition, I think 7 8 it's clear that the Commission -- that if a hearing is i 9 decided in this case, a so-called public proceeding would 10 ! commence with the. commission's order that such is to be the' I-11 case and would terminate with the Commission's final order, 12 memorandum and order on the matter. 13 MR. STOIBER: Closing the record'or whatever decision it took at that point. 'In the last. proceeding, the -- j4 l 15 . CHAIRMAN HENDRIE: So'there are - the.beginning i 16 and the end are' marked by fairly specific events,- namely' 17 the issuance of the Commission memorandum and. order. 18 MR. STOIBER: Yes, if the prior proceedings are i I i 19 followed. And I think the present rules:'were modeled on-1 l-20 the priorshearing. The Commission held.the public hearing -j j 21 and then stated at the hearing that the record would remain 22 pen for two.weeksifor receipt of additional materials. And 23 . then the proceeding would. be closed,. and that would be the i-24 point at which the additional 60 days would run. Lee.Feoord Reporms, incJ l. CHAIRMAN HENDRIE: .I see. So one could define. 25 a L. '

17-I Ldavidl5 in; fact the star't. l 2- ~ 1 ~1tR. PEDERSEN: It's not necessarily the T '3 Commission's decision that would end it. That may follow 4 i substantially after the proceedings. 1 i 5 COMMISSIONER KENNEDY: But if that were the case, 6 it' would have to. occur within the 60 days. MR. PEDERSEN: In fact, that's when'the 60 8 -day period would begin to run, at the end of the proceeding. 9 MR. STOIBER: So merely to reiterate, the l-i 10 ! Commission would have an additional 60 days af ter the 1 11 receipt of additional executive branch views on'the issues 12 which have been raised by.the staff, presumably until' 13 approximately the first week in February to decide whether - 14 it would embark upon-additional public proceedings. 1 At the first week in February, the president then is legally -- and the Commission has ' not gone forward l to public proceedings, the president is legally able then to authorize the export by executive order. '19' I COMMISSIONER AHEARNE: I'm sorry. I keep trying 20 i to find that place in the bill. Ken, you said public i 21 proceedings are not finished until the record is closed, 22 essentially, but they are completed prior to the decision being' 23 made based on those proceedings. 24 MR. PEDERSEN : What I said was that the Commission . ace.Feoeral Reporters. Inc. 25 could.by some act-terminate the-proceeding.

18 $adid16' 1 CHAIRMAN HENDRIE: I And'~ start'the 60,ddy clock 2~ running again.. 1 3. MR. TPEDERSEN : - Pad terminate the proceeding; I 4 not at the same moment announce its decision on~whether or H l-5 not to authorize the license. That was my point. 6 COMMISSIONER AHEARNE: But isn't it also 7 consistent to say that the proceedings are not terminated 8 until the decision is made based on those proceedings?. I 9 MR. STOIBER: The Commission could also take t 10 ! that view. Il COMMISSIONER AHEARNE: So it's not automatic? t 12 MR. STOIBER: No, it is not. 13 MR. PEDERSEN : It depends on how you would define 14 the proceeding. I was thinking in terms if you had a 15 hearing, the Commission could determine the record was i 16 closed. It would consider no further submissions. F -l 17 CHAIRMAN HENDRIE: Itwould seem to me, John, that 18 unless the Commission defines otherwise, that 'he final c I 19 ' memorandum and order marks the' end of the proceedings. 'So l 20 if we don' t say anything otherwise, why it seems to me that 21 proceeding until'the final memorandum and order issues, i 22, it is still going' on and the 60 day clock isn't running. -l 23'

However, counsel says we could define an 24 $

earlier time for the clock to start running again. sco.Feoeral Geoorters, Inc. 25 j COMMISSIONER; KENNEDY: I had forgotten, in the

19 l-1 david 17 very first Tarapur matter, itcseems to me that after 3 l' hearings.had been held, proceedings, the issuance of the j 2 i rder itself of the Commission in the matter took some 3 .several weeks. 4 COMMISSIONER BRADFORD: I've heard stories to 5 that effect. 6 COMMISSIONER KENNEDY: I am just trying.to -- 7 O M SSIONER B N ORD: It's before my dme. I 8 can't be responsible for that case. 9 10 ! COMMISSIONER KENNEDY: Neither could some of us 11 who were here. But the point is that we are talking about 12 next February. Now if next February based upor. what the Commission has ascertained from its briefings, et cetera, I 13 it decides then it would like to have a hearing, it could ja do it, whereupon, the 60 day clock isn't running yet. j 15 ; l 16 So that gets it from February, the 60 day -- l no, it gets it to some indeterminate point. Let's say the 37 I pr ceedings take 30 days, okay? So that's March and then 18 i 19 the 60 day clock-begins to run, maybe. At the end of Mar:h, j end 1 April, and May -- j 20 begin 2 CHAIRMAN HENDRIE : There are only two 60 day 21 i clocks, right? 22 MR. STOIBER: Right. 23 ! 24 { CHAIRMAN HENDRIE: The first 60 day clock and ae..p.o.re n. corms, Inc. ! 25 l the second 60 day clock; the second clock runs 58 days and j 1 ]

i 20 I i 1 gavid18 then you have a hundred'dayLhearing. When'the hearing 2 ends, you've got two days to. reach the end of the 3. I statutory period. l COMMISSIONER KENNEDY: That's a pretty good I way to do business, I think, two days to make a decision. 6 MR. STOIBER: But that's not the way -- no, 7 the 60 day clock runs only upon completion of the public 8 ~ proceedings, and that occurs when the Commission says 9 it happens. l 10 j COMMISSIONER AHEARNE: It's a new 60 days. l 11 MR. STOIBER: It can say that happens when the 12 last witness utters the last -- 13 CHAIRMAN HENDRIE: It's a new 60 days -- MR. STOIBER: New 60 days. 15 ~ MR.-PEDERSEN: We never held a proceeding before l 16 i under these procedures, so we never had to consider clock and 17 when they started. 18 CHAIRMAN HENDRIE: Let me ask the following 19 question -- 20 i COMMISSIONER KENNEDY: That's right, so we're 21 up to June now, by my counting. 22 CHAIRMAN HENDRIE: On the assumption that only 23 one hearing will be allowed by the Commission to occur,- 24 i i ,ee.Fecerol Reporters, Inc. you Could in fact have an initial period of 59 days, at 25 j 4 i I

l 21 dnvid19 the end of which the' staff asks questions. Good. j J 2 The second 60 day clock now starts to run. You 3 have another 59 days -- oh, I'm sorry. When the executive i branch answers, the second 60 day clock starts to run. You 4 e 5 now run 59 days, and the Commission declares a hearing. i When the hearing is over -- 6 COMMISSIONER KENNEDY: Essentially where we 7 are at the moment. 8 COMMISSIONER BRADFORD: No, we're not a 120 days. j 9 l lo t COMMISSIONER KENNEDY: We haven't got there, j i jj CHAIRMAN HENDRIE: We're at the first 59 days. l l 12 COMMISSIONER KENNEDY: That's right. 13 CEAIRMAN HENDRIE: And af ter the hearing is over, j4 then the third 60 day clock can run. 15 COMMISSIONER KENNEDY: Right? 16 MR. STOIBER: That's correct. And I think it j 7 }l important to point out here just in terms of legislative l history, that there was a great deal of debate about whether 18 1 l 19 there should be any limits on the Commission decision at all. I 20 and therefore, although these limits might seem rather flexible, it was the product of a legislative compromise 21 1 22 between those who wanted limits and those who did not. i I COMMISSIONER AHEARNE: Let me see if I understand 23 l1 24 i some thing. It sounds like there are really no limits. =Jeoer;l Reporters, Inc. ? COMMISSIONER KENNEDY: True. You understand it very 25 I l l l

22 6 avid 20 I well. l 2 COMMISSIONER AHEARNE:. _We can call'for'a hearing,- 3 j as-you said.before,'at any time. So even after that clock has run for the 120 days and it goes over to the executive I 5l branch, we can then at any time prior to the president 6 making his decision call for hearings. 7 MR. STOIBER: Yes. 8 COMMISSIONER AHEARNE: And if we conclude that a decision does not mean -- that the proceedings do not end 9 10 ! until we actually put out a decision, and since it takes II a majority to put out a decision, we could essentially never 12 put out a decision, because we could always find some I3 problem with the decision, and so that never having put l Id out a decision, the proceedings would never end, certainly i 15 for rule making. I0 COMMISSIONER KENNEDY: Some of us in a circumstance I7 of that kind would write a letter to the president saying 18 you ought to do something, chief. COMMISSIONER AHEARNE: But if I understand what l 20 you said before about the-law, the president cannot act 21 until we finish our' pleadings. 22 MR. STOIBER: I believe that that is the correct 23 interpretation of the law. 24 COMMISSIONER AHEARNE: So if I interpret it ' c.4.o.ca c corms, Inc. 25 correctly, then, a majority cf the Commission can basically

-p 2 3 '~ { i q. s david 21 'l prevent the president'from ever issuing-- F, .i I '2 COMMISSIONER BRADFORD: Let me just make-one 4 3 q point. There is a certain mischeif in discussing 4 theoretical possibilities, but last spring, in fact, the-i 5 Commission did split two-two-two on a Tarapur export,' 6 ' and' at that point we didn' t even have a potential majority 7 to bring the thing to an end, that in fact the Commissioners t 8 didn't behave in a filibuster-oriented way, but once we 9 realized the situation was - deadlocked, we voted to defer 10 ' it over to the president. 11 I think it would be a mistake as a result of 12 this theoretical discussion to in any way suggest 'that 13 the Commission' had any intention of simply letting the thing 14 go on. I 15 COMMISSIONER-AHEARNE:- Peter, I have been spending: 16 several months'trying to understand this act. f' 17 COMMISSIONER BRADFORD: I didn't mean you were 18 suggesting it, John, I just didn't want the suggestion to 19 'become a -- l 20 COMMISSIONER AHEARNE: And this was what I felt t 21 was a fascinating nuance embedded in the act. 22 COMMISSIONER BRADFORD: That's probably true, but 23 if anything, we're in better shape now than we were last 24 spring to bring things to an end, numerically speaking. AOFewQ Meo,ws,1% j. . 25 COMMISSIONER AHEARNE: Thank you. You. don't have to!, I j 1. .v.m r. . ~.. _....,.,., ~ . ~.., . _,, -, _., -.. _.. _..,...., - _. - _.. =,... _.....,.

t 24 I david 22' explain'. f. 2 (Laughter.) CHAIRMAN HENDRIE: All right. Now, Carl, onward, and let us turn from this fascinating procedural S discussion and see if we can close on the merits of the 6 case. 7 MR. STOIBER: I think now it might be useful 8 to take a brief look at the standards which the Commission 9 would apply h1 reaching its decision on the hearing issue. l 10 I I should point out first, I think, and most importantly 11 I that the petition for hearing filed by the intervenors, j 12 NRDC, Sierra Club, and nion of Conerned Scientists, do not I3 raise. the standing or theinterest issue under the Atomic Energy I# Act. They have instead briefed the question from the f 16 I point of view of the statutory criteria set forth in 126 (b) 2b, l r that they think a. hearing is desirable or should b e ordered 18 by the Commission. because, number one, it would be in the i '19 I public interest, and number two, it would assist the i 20 i Commission in making its statutory interpretations or its 2I detenninations under the act. 22 So therefore we do not have before us a situation 23 where you need to examine in detail this situation of the l 24 i ....r.o.c m.oorms, inc. ! intervenor, his possible interest, or things of that nature. i 25 j The. only two bases for decision set-forth in-the statute are t e,. .,.,n e,. .,....,......-,n

1 25: ' I 3 Idavid23 1 Ethe public interest determination and. the assistance of j l '2 ~ theDCommission. These are! basically policy issues. LWhether-l 3 or not you feel the record has been as fully developed'as [ t -4 you would wish to see it, whether or not perhaps the l t 5 prior. proceedings have supplied you with sufficient informatiod 6 on which to make your judgment, whether or not there are 7 other factors which might lead-you to conclude that.some sort l 8 of public airing of the issues either would be helpful to 9 you or to the public interest or injurious to you and the 10 public interest; in that regard, you have before you the j ^ 11 views of the intervenors as set forth in their petition of 12 both February 14th and their renewal petition of October 31st. i 13 You have before you the view of the executive 14 branch opposing the grant of hearing. You have the staff [ 15 views also suggesting that a hearing not be granted. And that is basically the issue one has to resolve now. l 16 17 A second range of issues arises if you decide 18 or if two of you decide -that some sort of public participation e 19 is desirable. The Commission must then go on to determine 20 whether it would be in the form of written comments under I 21 Part 110.84 of your regulations, or whether you would want i 1 22 to convene some type of oral hearing under subpart J i

j of your regulations.

23 i 2d The matters are all' outlined in our memorandum of 2 - as.ono seconm, Inc. l 25 ! November 2nd, on pages 3 and 4 where we have set out.-a l l t t

~ ~ i. 26, l' 1 I david 24 tentative oral hearing if you decide to go that way. ] 2 l- .The-chronology.would be somewhat briefer if you 3 decide merely to take' written comments and if you decide 4 not to hold any kind of public proceeding. Then we 5 would have to prepare an order to that effect supplying 6 your reasons for the denial of the hearing. 7 So basica?.ly it comes down to a policy issue 8 of whether or not you feel additional proceedings would be 9 of assistance to you. l 10 COMMISSIONER KENNEDY: Could you remind me 11 whether the petitioner has suggested that what he would have I 12 to offer would substantially advance the state of knowledge 13 beyond that presented before the Congress in the hearings 14 which it held on the previous licensing, licensing 1060, 15 I believe it was. I 16 MR. STOIBER: I think the only assertion he 17 makes in that regard is that further examination of the 18 most recent information available would assist the 19 Commission further and that the issues which he raises -- 20 and there are basically three of those -- the issue of i 21 the implications of the SSIR report with respect to the 22 adequacy of IEA safeguards -- 23 1 . COMMISSIONER KENNEDY: Not discussed in the 24 ! .ac..F.oerei neoorters; ine. l Congressional hearing? 25 j j MR. STOIBER: Yes, it was discussed in detail. 1

I 27 I 'dcvid25 1 COMMISSIONER KENNEDY: So coming back to my 2 question: is he alleging that he 'has additional information 3 to present on this since it was -- my recollection was that it: 4 was discussed at those Congressional hearings extensively. i 5 MR. STOIBER: I don't believe he asserts he has 6 additional information, however -- 7 COMMISSIONER KENNEDY: I'm trying to think of l 8 whether it would help us. That's the question I'm trying l 9 to ask. i 10 ' MR. STOIBER: I' think he indicates that he has 11 a viewpoint and might be able to submit analysis from a i 12 different point of view. 13 COMMISSIONER KENNEDY: Different from that that 14 he presented in the Congressional hearings? That's what 15 I'm asking. 16 The purpose of my question is to help me arrive l 17 at some judgment as to whether the criterion of additional 18 assistance to the Commission would be met. l 19 MR. STOIBER: I think not different from the { 20 ! viewpoint he presented, but different from the formal 21 materials already before the Commission from the staff and 22 the executive branch. 23 l And the other issues that he raised were the 24 adequacy of Indian assurances on nuclear explosives -- m.r.o.m c.oon.n. inc. ; 25 j COMMISSIONER KENNEDY: Could the Commission in that I

28 david 26 1 regard without engaging. in another public proceeding -- 2 could the Commission vote to include in its record for I 3; consideration of this particular licensing matter the i 4 record which committees of the Congress amassed on the l 5 previous hearing as guidance to the Commission? f I MR. STOIBER: I believe that's certainly 6 7 appropriate. 8 COMMISSIONER KENNEDY: Okay, thank you. 9 COMMISSIONER AHEARNE: Carl, you gave a list of -- l 10 you ran down the list of the views that we have in front of i 11 us, and I think you mentioned that there were the j 12 petitioner's views and executive branch views. I just got l 13 a copy handed to me of an executive branch view dated j l 14 November 15 th, which isn' t the executive branch view that's I 15 in Appendix C, and I was just curious. Were there any l. 16 other last minute arrivals? MR. STOIBER: I think the 15th -- 17 j 18 COMMISSIONER KENNEDY: We're dealing with a 19 different paper -- i l 20 j COMMISSIONER AHEARNE: I'm dealing with 596. i i 21 COMMISSIONER KENNEDY: This is the license itself. -22 COMMISSIONER AHEARNE: Well, the paper that I got I l 23 1 from the general counsel doesn't have any executive branch 24 i views attached to it. Ace.Feoeral Reporters, Inc, f 25 MR. STOIBER: We had submitted our on November 2nd,

i ' l 29 ( I david 27-and the executive branch views on the hearing have not 2 come until the 15th, so we were unaware of what position the 3 executive branch -- 4 COMMISSIONER AHEARNE: All I'm saying is: are j 5 there any other last minute -- trying to shovel through 6 this to make sure 1 have -- CHAIRMAN HENDRIE: You ought to have a staff paper 7 8 dated November 14th. 9 (Chairman Hendrie indicating to Commissioner Ahearne.) 10 { COMMISSIONER AHEARNE: That's in the November 20th II staff paper, the staff response. That is in the November - l I 20th package. What is not in the November 20th package is f 12 13 the November 15th executive branch views. I I4 MR. STOIBER: One has to keep these things on i 15 i parallel tracks. The hearing issue is a separate issue than 16 the issue of whether or not the license should go forward. 17 And so we have essentially two sets of responses, one on 18 the hearing issue and one on the license proper. I9 ! COMMISSIONER BRADFORD: The tracks do cross a l 20 little; that is, if you feel you have all the information 1 2I you wanted for the merits of the facts, based 22 li on the papers of the merits, then you wouldn't -- 1 23 l COMMISSIONER AHEARNE: At the moment I'm really at 24 l a very simple question, which is just to make sure I have z.r.o.es n.oon.n. ine. l 25 the right sets of papers. I have the November 20th paper. i

. 30 q

david 28

l' .In th'e November 20th paper,1 Appendix B, is'a' memorandum 0' l 2 ..in support of the~ motion for.further hearings.. So3that . l 1 3 led me to believe that this paper had something to do with 4 that. i -l 5 There is also an NRC staff answer to the 6 memorandum in support of hearing. Now that really led me 7 to believe that perhaps this paper was addressed in-the 8 hearing. And then when I moved to Appendix C in which 9 the reference at least refers -- the first two papers are e 10 the memo from petitioners and staff response,:which. I have 11 just read, indicates there-was a hearing. 12 Then Appendix C is the executive branch views, 13 but the-Appendix C' executive branch views is not the 14 November 15th executive branch ' views in the hearing. 15 So I'm just trying to see,'do I have all the i l ie 16 views on the hearing that have come.in to date. l' 17 MR. STOIBER: I.-'think you have. everything, as l-18 long as you have ~ the November 15th - views. from the executive' l L 19 branch on~the hearing issue. I L !~ 20 -COMMISSIONER AHEARNE:.All right. 21' MR. SHEA: I might just say that the staff in 22 putting together the paper you have just gone through had' { l 23 not. received at ' that time the executive-branch views of .} ) l i 24 ! November.15 th on the hearing. This. is the first' awareness l 4==e moorwn, inc.j l', )25 ' that. we. have - o fi that. There.was a ? direct - communication to ' thet 1 L 1, ._...,.._,.._..r....~ -_.,r,,,,, m,

.31 david 29 1 ' Commission-because of the nature o'f the hearing.. l. 2 COMMISSIONER AHEARNE:.~Well, my direct 3 communication was that I leaned over and asked John what 4 ' paper was Carl' referring to, and he pulled one out' and then j 5 went and made me a copy. 6 COMMISSIONER KENNEDY: Just to close that loop 7 a little bit, on page 20 of the paper which Commissioner 8 Ahearne has been alluding to, it notes that the executive 9 legal director indicates that it may comment on that paper 10 ' separately. II Will it have any relationship to the hearing i 12 question, any, comment that ELD might offer. ~2 I3 MS. BECKER: No, it will go to the substance. Id begin 3 COMMISSIONER KENNEDY: What' ELD is saying about j 15-the hearing issue, we know. i 16 MS. BECKER:.That's right. 17 MR. STOIBER: So you have everything. 18 COMMISSIONER AHEARNE: That's not obvious that I9 I have everything we seem to know about. 20 MR. STOIBER: You have everything I' have. 21 CHAIRMAN HENDRIE: There has been no paper.thus 22, far identified and brought to your attention which you have l 23 ! you think, probably? 24 I i That seems a reasonable basis to plunge ahead. ..:e.Federd Reporters, Inc, y 25 l Carl, you were in mid-discussion. \\ a-L

32 david 30 MR. STOIBER: .I was merely indicating'the 3 issues raised by'the petitioners.. I mentioned the 2 first two,'the'SSIR,'the' adequacy of no explosive' 3 assurances, the status of spent fuel return negotiations, and the fourth one,. the need for fuel issue. These are the points that the petitioner would expect to address in any further public proceedings. There has been, of course, a lot of material submitted to the Commission on these issues; however the petitioner el eves h at se mitung add M onal information and 10 analysis would be useful to the Commission in this regard. j) And I think.it's up to the Commission to make a judgment on whether or not it believes that that additional g process would be helpful to them. g COMMISSIONER AHEARNE: Jim, these are the types of j 15 questions that we asked the State Department to provide us l g answers for. i l MR. SHEA: Yes. l 18 1 MR. STOIBER: I suppose at this' point the. issue. 39 also becomes one of timing because, as I stated before, the Commission has until the first week of February to decide whether it wishes to order further proceedings. It could speed the process considerably if two of the g; 1 Commissioners did decide they wanted public proceedings by 24 v.ce Focerol Rooorters, Inc. 25 - rdering at this time and getting the ball rolling.

1 33 ,y I dnvid31 On L the other' hand, it might be something that 1 ~ 2 would come 'out of the briefing by the State Department that 3 'I would change the Commissioners ' views and therefore convince j 4 i people to await the decision on a hearing. 5 COMMISSIONER KENNEDY: When is that briefing 6 scheduled? 7 MR. SHEA: It is not yet definitely scheduled. 8 It looks as if the week after next is the most likely time 9 for it, assuming availability of all the Commissioners. 10 ! Bill Nosenso said he and Joe Np expect to be available that week. MR. GPLINGER: He was not sure about Joe-12 MR. SHEA: He was not canpletely sure about Joe. At least he 13 thought that was possible. So we're trying to pin that' 14 down. I believe the Commissioners are available that week, 15 at least some portion. { 16 MR. STOIBER: I raise this issue only to make f 17 it clear that the Commission 'does have time to revisit the 18 1 issue of the hearing; af ter it has received the briefing. 19 1 That has to be weighed against thedesirabilityofexpeditiousl 20 i treatment of these matters. l 21 COMMISSIONER KENNEDY: If given -- given the 22 j nature of the issues which the petitioner suggests he would l 23 1 like to and is ' prepared to provide further information to 24 c.c.ewei reponen, Inc. j Commission on, and given the extensive hearings that were held 25

I 34 devid32 1 earlier by the Congress, looking into the general question j i 2 as it related to the earlier license 1060, but looking 3 at the issue in a broader sense, I think, as I recall I 4 through several of the discussions, looking at the issue i 5 in the broader sense than just the particular license, 6 it being the vehicle, but rather not necessarily just 7 the

product, would it not seem reasonable to even now 8

to ahead and ask for pnblic comment in the nature of 9 written submissions with the normal period of time for 10 ! such proposals, what 30 days? It could even be less than l 11 that, I should think in the circumstances. l 12 15 days I should think would be more than enough. j I 13 MR. STOIBER: That course is of course provided { l 14 in the regulations. l 15 COMMISSIONER KENNEDY: Is 15 days too short a period: i 16 inthe normal circumstances? 17 MR. STOIBER: That's a matter of judgment. I would i 18 think it somewhat short. 19 COMMISSIONER KENNEDY: But 30 days would not be i 20 too short, would you say? i 21 MR. STOIBER: I would not. It depends on the 22, extent to which the intervenor would want to make use of 23 i the Freedom of Information Act to secure additional materials l 24 l upon which he might want to base analysis or views. am.Feeral Reprwrs. Inc. 25 COMMISSIONER KENNEDY: Does this schedule that is i I

35 dnvid33 propoacd in -- yes, it does. It represents some 15 plus { { days. It includes a period of discovery.. The oral 2 hearing schedule proposed in the letter -- l MR. STOIBER: Yes, on page 4 of our November 2nd memorandum -- 5 l 6l COMMISSIONER KENNEDY: It shows a discovery I period of something of the order of 15 days. MR. STOIBER: This is assuming the participants would file such a request. It's not necessarily clear that i they would, but if they did, which they did in fact in the 10 i last proceeding. l ) COMMISSIONER AHEARNE: What is a written hearing, Carl? 13 MR. STOIBER: I beg your pardon? COMMISSIONER AHEARNE: What is a written hearing? MR. STOIBER: Under the Administrative Procedure 16 l Act, a hearing need not necessarily be oral in order to qualify as a hearing. Under our regulations, subpart Il10.85,-. we have described a hearing consisting of written 19 comments, and that would be an order by the Commission l stating the issues that it wished to have addressed, l providing a list of the participants who would be expected i I 23 ; to comment, and stating time limits within which the gj receipt of comments would be received. -see Foceral Reporters, Inc. I COMMISSIONER AHEARNE: Does that or does that not 25 j l envision comments on comments? I i

l 36: h ; david 34 1 MR.- STOIBER: It might well. You might adopt 2 a proceeding'in which written comments were filed _and then l 3 an opportunity provided for. add..tional rebuttal or I 4 comments on the comments. 5 COMMISSIONER AHEARNE: You are scheduled to have 6 on page 4 -- at least my copy refers to that as a schedule 7 for a written hearing; is that correct? 8 MR. STOIBER: Under number one? 9 COMMISSIONER AHEARNE: Under two. 10 ! MR. STOIBER: Under two? 11 COMMISSIONER KENNEDY: It says if a written 1 I 12 hearing were held -- l i i 13 MR. STOIBER: That would be an oral hearil 14 COMMISSIONER.AHEARNE: But it says if a written, l 15 so that's not what it meant? 16 MR. STOIBER: That's wrong. _That should be if l 17 an oral hearing were held. That's an error. 18 COMMISSIONER AHEARNE: Is it appropriate to ask 19 or can it be answared here, when is the fuel needed and is 20 that a question? That is, A, is it germane to this meeting, b 21 today's issue; and B, an open hearing. Can we discuss it? 22 MR. PEDERSEN: Clearly it's germane in the sense 23 I that the need for fuel is one of the issues that the 24 1 petitioner has raised. It's also an issue that this .w.FewCI Roomn, Inc, l 25 Commission has visited on numerous occasions. Prior to the l

7-. i 37-l v 1 i Gavid35 last time the Commission dealt with Tarpur,.it had l 2 before it.an analysis, oneJ analysis, at least, done by 3l my of fice that spoke to that question, and we are redoing that analysis at r.his very time and updating it. COMMISSIONER KENNEDY: The executive branch 0 also -- 7 MR. PEDERSEN: And the executive branch as a regulat I matter of course supplies its views on these matters. So, 9 it's germane, certainly. _I do not think you have before 10 ! you today the answer to that, and I would think that would 11 be -- also you will probably get some discussion of that in i your briefing, which I think is one of the issues Joe 13 Nye was interviewed to' discuss. 14 It's very closely associated, for example, with I IS the reracking that's going on at Tarapur, because that's 16 affecting the power at which they 're running the plant. 17 They don't want to get stuck with a lot of spent fuel right 18 now, so there's a lot of variables involved, and we're 19 looking at that question. l 20 COMMISSIONER AHEARNE: I gathe: u76 there was 21 a hearing on Tarapur? 22 MR. STOIBER: Yes, there was a two day oral '3 hearing held-in July of that year; something on the order of 24 E9 .co.Feoeral Coporters, Inc.1 ~ 2S l testimony developed.

l i 38 l I david 36 1 COMMISSIONER AHEARNS: Is that the only hearing 2 on an export that the Commissioners held? 3 MR. STOIBER: That's right. 4 COMMISSIONER AHEARNE: Can you explain what were i i 5 the criteria that were applied at that time as to why 6 there should be a hearing; in particular compare them with 7 apparently no hearing being held in I guess 1060. l 8 MR. STOIBER: The judgment of the Commission was 9 basically on the grounds that it felt the additional 10 ! material might help it reach its statutory common defense 11 and security finding and that it would be in the public l 12 interest to afford these petitioners an opportunity to I 13 publicly air their views. I 14 COMMISSIONER KENNEDY: Granting them the hearing 15 as a matter of judgment, not as a matter of right. 16 MR. STOIBER: That's right.- And there was another 17 dimension there also that I might mention. The Commission 18 stated in its order that this was frankly an experimental 19 procedure that it wanted to use to determine whether hearings 20 in export licensing proceedings generally -- you have to i 21 recall that at that time the petitioners were requesting 22 this as a matter of right under the Atomic Energy Act, 23 would in fact beuseful in ventilating the kinds of issues 24 that the Commission faced. l \\w.Feceret Ceoorters, Inc, g 25 ' COMMISSIONER AHEARNE: Did the Commission reach any i l

l 39 l ~: Bavid37 i judgment:as to the1 utility of that-experiment?. 2 COMMISSIONER KEN"EDY: 'Several, all different. I 3 .(Laughter.) 4

MR. STOIBER:

The Commissioners have reached-l l-5 j udgments. The Commission as a collegial body, I don't I 6 think has made any statement about that, except in testimony there have been certain allusions to the fact that it 7 8 provided some assistance, but at the cost of other difficulties. 9 10 ! COMMISSIONER AHEARNE: Was the issue of a hearing 11 addressed by the Commission for the last spring's 1060 12 proceeding? 13 MR. STOIBER: Yes, it did. It said it did not 14 feel that a hearing on that license would be in the public i i 15 interest,iit would' assist it, but it would reach a decision or i 16 the companion license which it consolidated with this 17 proceeding as a whole, would be reached that -- well, at l l 18 this time. -{ l 19 COMMISSIONER ~AHEARNE: Can you tell me what l the differences are in the general-counsel's view, at least, 20 1 21 between the case we have before us now and 1060, particularly i 22 focused on why should the Commission see a difference l 23, leading t o a different conclusion. l 24 MR. STOIBER: I don' t think there are primarily see.Feoeral Repo,ters, Inc. 25 - legal' factors. I think it comes down to a matter of the i (-

1 'I 40 ..y. Ldavid38 I judgment of the -individual. commissioners abcut.how ' fresh s 2 the information was'in their mind'and other additional 1 i 3. material that would be useful to them. i 4 COMMISSIONER DRADFORD: There was also a ( 5 very strong allegation of urgency of decision, even as 6 distinguished from a question of need, just an energy need 7 for a decision, as apart from the need for the fuel before 8 us last spring. I 9 I would have to review the papers myself to l 10 ! see how explicitly that weighed in the Commission decision. 11 I know it was a factor in my own thinking, i i 12 MR. STOIBER: To be extremely candid, one of E ' 13 the other factors was 'that the. Commission was facing 14 imminent loss of its quarum and ability to act on any of i 15 these licenses, i 16 COMMISSIONER BRADFORD: Of course, we didn't i 17 know Joe was going skiing. 18 (Laughter.) I $i l 19 We knew he was going skiing. We didn't know he [i, 20 wouldn't come back. i 21 COMMISSIONER AHEARNE: The general counsel may I il 22 have known something he didn't tell you, i i 23 CHAIRMAN HENDRIE: You didn't have any detailed l 24 idea about my. skill levels.and inclinations. u..p.e.r. n.ooners. inc. ; 25 I MR. PEDERSEN: I.would like to respond a little 1 i ! ...--,..,...e r

l 41 l I I havid39 more, Commissioner, to your question. I think many factors i 2 are the same. I think a lot of the issues that are 3 :! raised by petitioners now are the issues that were raised by petitioners earlier. But things happen with time. I 5 For example, since that time you have had the Congressional 6 hearings in which there was even further discussion of 7 these and more opportunity for public debate, and so on. O That's on one side, so to speak. On the i l 9! other side there are some questions about whether this I l 10 ! l particular fuel, the timing of it isn't different. For 11 i example, the argument has been made that this fuel would not i go into the reactor, probably, this shipment, until after 12 I3 the 18 month cutoff. I 14 And whether that should have any relevance or 15 ; not, I'm not prepared to address today. But there are 16 differences. Whether a hearing would enlighten those l7 l differences, I have an opinion on that, but that's neither 18 here nor there. l 19 l I But there are similarities and some significant l I i changes. I l MR. SHEA: That's right. I think Ken is right. 2' I There are a few changes closer to the March '80 date, and 23 also I think there are some more recent statements by the 24 ; Indian officials that have been made with regard to this es.Feoeral Reporters, Inc. 25 [' export and are noted in submission by the NRDC. I I i

42 l I david 40 CHAIRMAN HENDRIE: Let me seize upon a moment of Silence to note that I do not propose to ask for a vote 3 I this morning on the hearing question. Vic wasn't able 4 to be here and would like to get his vote in. It would 5 seem to me that we can make our views known to one another 6 on the hearing question on a notational basis or we 7 might simply delay that decision until af ter briefing. 8 COMMISSIONER KENNEDY: Could we get an informal 9 expression of views, remembering that it only takes two 10 ' people to suggest a hearing, to call for a hearing. 11 I am concerned about delaying until af ter the l I 12 Nye briefing a week and a half hence, maybe two weeks i 13 hence, you see, because then if we are going to have one, 14 we might as well get the thing started and save the two i 15 weeks. 16 And if two people want it, well then the rules l 17 say we're going to have it. We can have an informal 18 expression of views and not take ths formal vote. 19 CHAIRMAN HENDRIE: What I would propose -- it 20 seems to me that whether to have a hearing or not is a 21 fairly straightforward question. I would suggest that we 22 let the secretary come around and collect the ballots, just 23 go ahead and vote on it. 24 COMMISSIONER. KENNEDY: We have got two questions.

c. F.aerei m.oorters, ine l 25 CHAIRMAN HENDRIE:

But by following that procedure -- i

43 i .e,-3. _ ;j I 899 tid 41 1. I , COMMISSIONER KENNEDY: 'If you'~re going to have-2 one,; which way? 3 Written. submissions or an oral hearing? 4 CHAIRMAN HENDRIE: That's a question I would like j 5 .to raise. 6 COMMISSIONER AHEARNE: I don't think that-is a 7 simp]e question, whether it's written or oral. 8 CHAIRMAN HENDRIE: True, and furthermore I i i 9 ask the counsel, is the form, whether it's written comment. l l 10 ' submission or an oral? Is that at the choice of two I i 11 l Commissioners or is that a decision of the majority? l 12 COMMISSIONER KENNEDY: That's a decision of the 13 majority, I believe. I 14 MR. STOIBER: Yes. i 15 COMMISSIONER KENNEDY: Theform'oftheprocedure--{ l 16 COMMISSIONER AHEARNE: We're switching from i. l 17 academic to -- 18 COMMISSIONER KENNEDY: No, that's what the rules { say. Two commissioners can call for a hearing, and'then l l 19 l 20 the form the hearing should take falls under the normal 21 procedures of the Commission, as I understand the rules. l f 22 Isn't that correct? MR. STOIBER: That would be our view. l 23 24 COMMISSIONER BRADFORD: It's not a question I 4::e. Federal Reporters, Inc. 25 have researched at-all, and I' don't want to start a l l i

W' .1 .. 't 44 1 david 42 prolonged debate so let me just reserve judgment. 2 COMMISSIONER AHEARNE: I think that that is a very l 3 k significantquestion, which type of hearing. And just i 4 i. let me raise an additional part of the significance. If l'l 5 you are putting on an oral hearing, you probably don't have 6 to be extremely explicit as to the questions that will be 7 addressed on the oral hearing. 8 If you are going out for a written hearing and 9 i asking for comments to help you, you have to be, I 10 1 think relatively explicit. I think it would be more 11 1 difficult to be that explicit until we've heard the 12 State Department's hearing, briefing. 13 So probably where I would come out if I were 14 1 going for a written hearing would be to wait until after i 15 I the State Department. That would be the rationale'because i 16 I would want to ask probably for further reviews on that. 17 COMMISSIONER BRADFORD: I agree with that. I 18 i think it's going to be very hard to define the scope of 19 I really either type of proceeding until af ter we've heard 20 what the State Department has to say. It's also possible 21 to hold judgment on whether or not one wants oral l l 22 j argument until one has the written materials in hand. l, 23 And. then you can see whether thena would be 24 l.ce Fooeret Reporters, Inc, j any good purpose served by letting the parties take some 25 time to' argue further orally on the basis of the written i l - \\ I e

TE b e, 'm 45-g, l 1 .l 99vid43 submissions. i-2 l COMMISSIONER KENNEDY: One purpose that could' 3 I be served there of course is for the 30 day. delay. 4 s COMMISSIONER BRADFORD: Well, let me just indicate l 5 again that if willful delay had been among the Commission 6 objectives on Tarapur last spring, it would have been 7 an easy time to do it. 8 CHAIRMAN HENDRIE: On these fairly difficult, l 9 i complex matters, the Commission at full speed forward is i 10 ! I I not exactly the model. i 11 Okay, I think further questions from Commissioners? 12 COMMISSIONER AHEARNE: No. l 13 i CHAIRMAN HENDRIE: I will ask the secretary to l 14 poll around with a notational vote. I think on that vote I 15 it would be helpful if the Commissioners would indicate [ 16 l both hearing yes or no, and if yes, what type. I 17 COMMISSIONER AHEARNE: And probably, if yes, 18 i when. should it wait for the State briefing or should we 19 i go -- l l: 20 CHAIRMAN HENDRIE : I think -- what I propose is 21 the following: if two or more Commissioners want a hearing 22 and that develops from ' the vote, then I will ask the 23 l { counsel's office to begin to frame in more detail than he 24 l co.Federet Cooorters, tnc. i has in the paper here the sort of schedule you might look 25 .for,; both for oral format and written format.

l ~ 46 i . n :t l david 44 1 of course, if the votes are clear on oral or j i 2 written, we'll know which way to scope that, which way to f 3 concentrate. I 4 MR. STOIBER: We can prepare a draft order for 1 5 either eventuality so that you can see what that looks 6 like. 7 CHAIRMAN HENDRIE: Why don' t you? But it's 8 quite possible we will have a vote. 9 Now, what it does seem to me is that the statement i jo i of the scope of the hearing, if there is to be one, is l, 1 11 likely to be the place that the Commissioners will differ, i 12 and there will be some difficulty in getting to reach the 13 language, and that indeed may need to wait for the 14 briefing, as John suggests. 15 COMMISSIONER KENNEDY: The scope could be a 16 fairly straightforward and all encompassing one; that is, [ 17 as the views of parties and desirability under the law 18 recognizing criterions under the law of issuing the proposed 1 19 license. 20 Let them comment and say anything they choose 21 and raise any arguments on any side of the issue that 22 they propose to raise, following which either they could be 23 argued orally in rebuttal or with a short comment period j 24 i on the comments. 'Otherwise, we never will get the order out. ...pm r.i nwonm. ine. ! i 25 ' MR.'STOIBER: In its prior proceeding, the l i l

.l. ) '47- ~ . 4,' sg david 45, 1-Commission. did essentially that.. It.said in' addition that 2 'there wer ( ertain' issues which it thought. were central to itsIdecision-and that.it'would prefer'.thatsthe l 3l r 4 participants-concentrate their remarks on it. It did not; j i i l' 5 1Lnit participants to any particular issues, but'it did 6 say, if you want to make best use of the material-you are 7 going to submit, please emphasize these points. 1 COMMISSIONER KENNEDY: I would read lists that 8 9 anybody wishes-to include in the interest of getting l 10 ! something out. i 11 CHAIRMAN HENDRIE: It certainly wouldn't hurt to l l 12 attempt to frame that language. It provides a starting I 13 point and whether we can get a majority agreement to move i 14 forward with it will remain to be seen. 15 Fair enough? lo i 16 COMMISSIONER BRADFORD: Sure. i F i 17 COMMISSIONER KENNEDY: Yes. l i 18 CHAIRMN1 HENDRIE: Okay, is it clear where we're I I i 19 going? l i l 20 MR. STOIBER: I believe so. l f l 21 CHAIRMAN HENDRIE: The secretary will circulate-22 a ballot, hearing-yes or no, type of hearing, written or 23l oral; general' counsel will draft, I guess, an array of I 24 documents suitable for all outcomes. l fee.Feoerrt Reporters, Inc. L 25 l How about that?.' Or at least have in mind -- { t 'l I i l L j i l-

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1 ~ david 461 MR. STOIBER: We'll draft.two orders, one for-j' .i: 2 written proceeding',.one for oral.- i 'l COMMISSIONER KENNEDY: Leave blanks so people 4 can' fill in by writing anything they like. l 5 MR. STOIBER: We tried that on the last paper, 6 . I think. l l 7 (Laughter.) O CHAIRMAN HENDRIE: I' thought that was a notable 9 1 success. I 10 ! COMMISSIONER KENNEDY: I'll agree to any question ll 11 j anybody wishes to ask. 3 l 12 i !' CHAIRMAN HENDRIE: But it may be that in a day or 13 two 'the nature of the vote will come clear and then you'll i 14 II know which option you are aiming at. I don' t see any need 15 i for you to prepare'all possible options in detail.. And-16 l-then we will see whether we're able to take action, if i 17 a majority indeed will settle down. cn the direction and 18 nature of the thing, then we can get it on out by ' affirmation; ; 19

1 if not, I'll schedule a. meeting so that we'll get a chance l

0 to talk to each other about it and see if we can work it that 21 way. 22 COMMISSIONER BRADFORD: (Nodding affirmatively.) COMMISSIONER KENNEDY: (Nodding affirmatively.) l 24 ..c.ip.a.c.i m.oorvers, inc. j NIM MME: Wq pM, had p Wq nd. 1 25 l (Whereupon,jat,11:00 p.m., the hearing was adjourned.}'}}