ML20196K443
| ML20196K443 | |
| Person / Time | |
|---|---|
| Issue date: | 07/18/1979 |
| From: | NRC |
| To: | |
| References | |
| NUDOCS 9903260201 | |
| Download: ML20196K443 (174) | |
Text
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1 1 UNITED STATES D? AMERICA r
l V 2 NUCLEAR REGULATORY COMMISSION
,-~, 3
)
4 WORKSHOP 5
THE GENERIC ISSUES OF CONSTRUCTION DURING ADJUDICATION l 6 I IN NUCLEAR POWER PLANT LICENSING 7
8 9
PANEL 3 ,
10 l STAYS AND APPELLATE PROCEDURES 12 . .
,~,. .
()
- 13 Georgian Room ,
Holiday Inn l 14 8120 Wisconsin Avenue i Bethesda, Maryland 15 Wednesday, July 18,1979-16 I The panel met, pursuant to notice, at 12:37 p.m., John !
3 17 !
Cho presiding. i l
PRESENT:
19 JOHN CHO 20 l WILLIAM H. LOVELACE ALBERT K. BUTZEL 21 SANDRA MITCHELL CARON ,
,e 3 THOMAS G. DIGNAN
'q_) 22 MICHAEL McGARRY {
i IVAN W. SMITH 1 23 JAMES TOURTELLOTTE l
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CR6016 MR. CHO: I think it's about time we resumed our discussion.
2 For the record, I would like to note tha.t this
~ 3 is the third panel on the workshop on stays and appellate 4
procedures which are related to the question of stays and the 5
Lamediate effectiveness rule.
6 We have had to change our plan for proceeding with 7
the discussion, at least with recpect to timing of this, I 8
because as yoc. all are aware, unforeseen circumstances: l 9 i One is the absence of a reporter this morning, l 10 I because I understand there was some gap in communication.
And two, the fire alarm that developed soon after 12 .
s we started ouz discussion this morning.
j' 13 ;
As we discussed earlier, we will plan to continue !
throughout the afternoon now to take up -- both of these topics 15 have been assiged to our panel: One, the question of stay; and two, the question of appellate procedures.
You will recall we started our discussion by going l 18 around the table, letting each person make at least a preliminary statement on his or her views of the stay procedure.
20 i To save some time, I might quickly summarize the !
21 l c' statements of those peop2e who have spoken, and then we will 22 continue from there. I 23 And by the way, if I should somehow mischaracterize i
( 24 I Ace FederJ Reporters, lnc. your position, why, certainly feel free to make any corrections' 25 L - )
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j 1 .you feel necessary.
2 I think Jim Tourtellotte's position was that the 3 immediate effectiveness rule, from his experience, has not
,O ld 4 yielded any bad results.snd he sees no potential for any bad
'S results in the future. So I guess his position would ba that 6 the immediate effectiveness rule, and the associated stay L 7 provisions ought to' remain the same.
l .
8 Al Butzel's position, if I understood him correctly, 9 was that the immediate - effectiveness rule was not a salutory 10 concept. That it allows a preliminary decision to be treated 11 somewhat like a final decision, and that it sort of demeans
'12 the appellate process , -
() 13 After the stay rule itself, it is his view that 14 the rule was very tough, and it is very difficult to overcome.
15 Sandy Caron's position, if I understood it, was 16 that .the system seems to be stacked against intervenors. 'And 17 this is due from the two-! p licensing procedure we have, the 18 immediate effectiveness rule, the stay provision, and the i
I 19 very limited time period within which exceptions can be filed.
20 Bill Lovelace's main point, I think, was that we 21 ought to be concerned about delays in the procedure. That j()- 22 delays cause expenses to rate payers. And basically, he thinks 23 the system works.
24 And Mike started to make a statement, bot because
- eral Reporters, Inc.
Aco-25 he didn't get very far in his statement, we might just proceed J.
4 1 from there.
O 2 MR. LOVELACE: John, may I suggest --
g 3 MR. CHO: Oh, excuse me.
4 Tom Dignan's position, as I understand, was that 5 given the present system, he tho'ught that the stay rule ought 6 to remain as it is. This is not to say that he finds the ;
7 Present syste.m is perfect; if I understand him correctly, it 8 is far'from it. j 9 .But again, with the present system we have, he ,
1 10 . thinks that the stay rule ought to remain. i 1
11 MR. MC GAhrf: I mi ght add, John, that all speakers 1
- . 12 have indicated, and you y. ourself have indicated, that we are 13 speaking individually, and the record should reflect that. i
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14 We .:e not representing a constituency in that respect.
15 I had made some brief comment, and I will just start 16 again.
17 MY Position with respect to the stay and appellate ,
l 18 Procedures is simply that I think it is a workable system; I 19 think it has worked. I address myself to two factors:
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The first is, the role of the licensing board. I 20 21 The reason I address myself.to the role of the ]
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22 licensing board is that, again, as I noted by virtue of coming l
23 toward the end, I have the benefit of commenting on several
'( ) 24 Aa,-Fwnl Romnus, Inc.
of the other positions, and one was tne licensing board. !
25 And I believe it was A1, or someone said that the
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, 1 licensing board is a preliminary board. And my view of it is
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2 that it is much akin to the district court, and then you have 3 the court of appeals, and the Supreme Court.
4 And I think that the licensing board, when you go 5 before the licensing board, you perform numerous studies, 6 detailed studies. Before you get to the' licensing board you i 7 file motions taken to discover. 1 8l And you finally arrive at the licensing board stage.
9 And that is, for all intents and purposes, your day in court.
10 So I think when you come out of that battle, the 11 licensing board stage, you have got a decision, and it is 12 worth so'mething, it is not preliminary. !
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13 The second comment I have is with respect to stays --
14 I believe Sandy made this comment about a stay. She didn't 15 seek a stay because it would weaken her position.
16 I guess my view of a stay is based on my experience, i
17 not just in the NRC but probably much more so based on almost j 18 daily courc appearances on TROs and preliminary injunctions 19 for about three years.
20 That I think the stay procedure doesn't weaken your 21 case. And I think the very purpose of the stay is you have got, 4
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(/ 22 a situation that you feel warrants immediate attention. And i i
23 you can divorce yourself from really the merite of the case --
(O,j 24 sure, you have to get into them to some extent, but my Ace-Federd Reporters, Inc.
25 experience has been that the courts almost universally look at
6 i
$.. 1 'the irreparable injury.
l /~T U 2 I k.now;we have the four standards in Virginia yf e 3 Petroleum, butLI am just saying,.as a practical matter, I >
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4 think-they.look at. irreparable injury. #
5 And therefore, I think that that is a discrete .
6 subject from the entire package that we have been litigating l l
7 before the' licensing board inLthe various, in the Appeal Board. l 1
8 and the Commission.
i 9 ~So therefore, I don't think it really should be 1 J
10 viewed as, if you' seek a stay, that it weakens your case. I j
-Il think it is a recognized remedy that is available to the parties j 12 to. pursue that the courts, again, in my experience,.will not .
v' 13 be prejudiced ~by virtue of whether you win or lose the dtay.
14 MR CHO: Ivan.
15 MR. SMITH: Well, I have problems with the general 16 direction that the entire meeting has taken. But our invitation 17 now, as I understand it, is to comment specifically on the l
-18 standards and requirements for this meeting.
19 And I think Tom made a good point. Many of these 20 things are interrelated, and we may not have the most logical 21 system of hearings and appeals, but it has become fine-tuned l ,
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.O. 22 within the system. However. logical it is or illogical it is, l 1
'23 it'has become better fine-tuned.
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24 And there are some risks involved in addressing 25 one aspect of it, such as stay requirepents.
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7
,, 1 But doing that, I don't believe that the stay
!] 2 requirements are realistic as far as NRC-type of cases are 3 concerned. We have been discussing stays mostly as a stay of 7-))
4 a permit after the Licensing Board has issued it. We ought 5 to remember that there can be other aspects of stays .
6 But from that point of view, I really don't think 7 that it is possible for somebody to meet the requirements of 8 our regulations and Virginia petroleum jobbers.
o Par cicularly you have to bear in mind that in the 10 irreparably injured standard, that money is not going to be 11 a controlling or persuasive factor. And that the movant will 12 just have come through a thorough hearing which he has lost, 13 and it is going to be extremely difficult to demonstrate that 14 he is likely to prevail upon the merits. l 1
1 15 He can show, sure, that he has strong bases for 16 appeal. But that first test is also a very tough one without 17 the likelihood of prevailing. l 18 So I believe that, again, I don't the whole 19 direction that we are moving to. But given that direction, 20 and to make it work, I think another look should be given to 21 the stay requirements to make them more realistic for NPC r'
k)% 22 practice, j 23 MR. CHO: Okay. Shall we open it up for general sm
(_) 24 discussion now?
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25 MS. CARON: I would like to clarify, if it is all 1
i 8
.s 1 right with you, something that I saiu --
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2 MR. CHO: Certainly.
3 3 MS. CARON: --
in Tom's discussion, I realized was O
4 not clear.
5 I didn't say the thing, writesit off. The problem 6 being, the staff-imposed conditions upon the license. The 7 applicant wished them removed. There was no war I could move 8 for a stay of what I thought the Appeals Board might do.
9 And so I was trapped. There was nothing I could 10 stay.
11 MR. MC GARRY: I think that gets to Tom's point. There .
12 are a lot of things -- you are trapped.
13 MS. CARON: Yes.
14 MR. MC GARRY: You cannot be the moving party.
15 You cannot raise the matter. I appreciate that.
16 MR. CHO: To start off our general discussion now, 17 I would like to raise this question.
18 One, I think we would like to be sure that we cover 19 the topics that have been assigned us, the specific questions 20 that have been assicned us st. And I am sure there will be 21 , enough time for us o cover whatever other related aspects ,
22 we think warrant discussion.
i 23 But the question I would like to raise at this time l() 24
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is, given the present immediate effectiveness rule, what 25 should the provision on stay be? Should the present rule
9 7, 1 remain, or should it be changed, and if so, how?
(.) 2 MR. BUTZEL: I would like to really respond -- not 3 respond, just agree with what Ivan said.
(-)'.
x 4 I agree *>ith what Ivan -- having said it not nearly 5 so well, but meaning the same thing myself. You just assess 6 what your possibilities o f success are in this forum.
l 7 Ivan put it perfectly. You may have a lot of 8 arguable, meritorious grounds on appeal, but that doesn't show 9 that you have a probability of success. It just shows you have 10 some good logical issues.
11 . Now, I do not agree that all -- well, I don't know 12 '
about,the NRC, but I certainly don't agree that all the courts
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k- 13 lo'ok to is irreparable injury. That is not my experience in .
- . I 14 the federal courts, although my experience is less t.._n yours-15 They do want to see that there is a substantial ,
l 16 probability of success, as I interpret in our Southern District l 1
17 anyway, in the Second Circuit. l l
18 MR. MC GARRY: I dun't mean t.o be misleading. There 19 is no question that they don't look at all four factors.
20 I am jur saying that it is my experience of one 21 that they usually turn on, is irreparable. ,
22 MR. BUTZEL: Okay. I don't agree with that 23 necessarily, but we don't have to disagree on this , it is not rm .
( 24 a point.
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25 Even irreparable injury is extremely difficult to J
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10 1 show, particularly in a situation like that.
2 But in response to the question, should the standards 3 of the stay be changed, it seems to me that that depends in 4 part, and probably in very significant part, on what your view 5 of the immediate effectiveness rule is itself. I tried to make 6 this point previously, and I will reiterate it again.
7 If the conclusion'is -- and speaking in terms of 8 conclusions -- that the benefits of an immediate effectiveness !
9 rule outweight the detriments -- and I assume the benefits 10 to mean now allows the project to go forward at an earlier date 11 than would otherwise be the case, and that saves money, because 12 there can't be any other in terms of uncertainties -- you are 13 left more uncertain by a pending appellate procedure than you 14 would be if you waited it out and got a final answer at the 15 end of the road.
16 So that has to be the benefits that people are 1
17 talking about in terms of an immediate effectiveness rule.
18 If you believe that to be the case, then it seems 19 to me it is very difficult to dissent from the point of view 20 that the standards for stays should be substantially different 21 from what they are. They are not standards that have been 22 manufactured out of whole cloth. They are standards that have 1
23 been developed, I assume, as a result of the judicial develop-O. 24 Ace Fed:rti Esporters, Inc.
ment ef stenderde for etere end gere11e1 whet vou ueue11v 25 read in the courts.
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11 1 And the courts have done that, because this, they
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2 feel, to be the sppropriate measuring rod for what is regarded fs 3 as a form of extraordinary relief. And that extraordinary 4 relief stems from the fact that a judicial decision has already 5 been rendered. And unless you can show a probability that it 6 is wrong, the course of activity that is designed by that 7 decision ought not to be disturbed.
8 I just want to add one, lest thing, and then I will 9 stop. ,
10 Your idea that the Licensing Board decision is not 11 in the nature of a preliminary decision but is more in the 12 nature of "a final decision is a respectable one, but one that .
'13 I don't agree with. And it is for this reason that I don't 14 agree with it:
15 And that has something to do with the whole process 16 of appellate process within an agency.
17 An agency is governed by policy as well as by the
~18 judicial niceties of the evidence that has been presented before; I
19 this is inescapable. l
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20 I cannot move out of the agency at the point of the 21 l initial decision. I am obligated to pursue my appeal within l 22 the agency before I can move on into a court; I simply have ,
i i l l l 23 no choice about it.
24 So while you say it is in the nature of a preliminary Ace-Fed:rtl Reporters, Inc. { l 25 decision, I say no. I mean, you say it is not !n the nature ofI l
i 12 1
1 a preliminary decision, I s ay no . Because I can't get out of the agency and into the court which I may regard'as more 2
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3 neutral or more favorable, or at least looking at it with a i 4 different perspective until the appeals board has decided.
1 5 I have got to take my appeal and go through it with all the 6!' time. j i
l 7 And that is a problem. And in other agencies, there i
8 are also long, extended hearings in front of hearing officers 9 instead of a three-man board which end up with a recommended 10 decision, which is called a recommended decision, then subject l l
l 11 to review and decision by the full Commission or whatever it 1
. 12 is. I am particularly familiar with FERC, but I am sure it is
( 13 true in a number of other agencies, too.
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- 14 No one can start *until the agency itself has made I
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15 its final decision; that is when construction begins.
l 16 And I don't think it is accurate -- it may be more l
17 than a normal preliminary decision, but it isn't the kind of 18 decision that I can then rush in and try to get~my judicial 19 relief which might include a stay in the court, which I can't 20 get here.
l 21 MR. MC GARR.Y: Let me just -- two comments. )
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'%/ 22 One, I may have misinterpreted you, but I thought i
23 you were saying about stays in the courts, you say you get a l'h j q,/ 24 judicial stand, you get a judicial decision. You used that. 1 Ga-Feerd Rgorten, lnc, l h 25 That's when I interrupted you. You said you got a judicial i
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_ 1 decision, and then you seek a stay.
(.) 2 And I just wanted to be clear that Virginia Petroleum f-)
3 applies to administrative proceedings and administrative ;
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4 decisions as well as judicial decisions. We don't have any 5 problem there, I don't think, The second thing is that -- I was thinking about 6l 7l this the other day, figuring this exchange would come up -- ,
I 8 If I were in your shoes, if I were in the Shoreham 9 case, I think I could get from an initial decision, from the 10 moment I got the initial decision, to the Supreme Court, within !
11 a week.
12 Now, I am going to get denied, but I think I can f]
k-13 move it. I mean, I have been in circumstances where I got to 14 the Supreme Court from the district court in two days. And I
15 that went from the district to the court of appeals, full-blown 1
16 hearing district court, full-blown hearning in the court of 17 appeals, and went to the Supreme Court. And that was in two 18 days.
19 Now, I am just saying -- this is blue-skying it now, 20 but from the minute you hear a decision, you get a decision, 21 initial decision, Licensing Board, and you ask for that Licensing ,
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(/ If he doesn' t issue l; l 22 Board to move in 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> to issue a stay.
I 23 a stay within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />, then you go to the appeal board.
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(_ 24 Because you can go to the appeal board. And why
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25 do you go to the appeal board? The Appeal Board says, "Why
14 1 didn't you go to the licensing board?" "Well, I did. I gave
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2 them 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />. And by God, they are going to bulldoze down gg 3 these trees," et cetera, et cetera, whatever you are worried
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4 about in that regard.
5 And you give the appeal board 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />. And if the 6 appeal board doesn't act within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />, and the question is:
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7 do you go to the Commission or no? And you have to go to the i
8 Commission. Maybe then you go right to court. l 9 And then it is a question maybe you might even try 10 the district court. You can clearly go to the court of appeals l l
11 if you are thinking of final action.
12 .And I know'that the district court, and maybe your
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C>g 13 experience is different in the Southern District, but my 14 experiences here in the federal courts in Washington, that 15 in a TRO, a judge is going to turn that TRO around in 24 or 16 less. They usually turn it around the day the TRO is -- almost -
l 17 invariably, that TRO will be filed in 10:00 o' clock in the !
l i 18 morning, and 4:00 o' clock in the afternoon you are in the 19 judge's chambers.
20 You are going to hear it that day. And then if 21 that judge denies it, you are at the court of appeals. And ,
/~T l k>l 22 the Court of Appeals, at least in the District of Columbia, 23 lives with TRos regularly, they know how to handle them. And n
(_) 24 you are in the Court of Appeals.
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25 And then once you finish the Court of Appeals all
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f .g 1 you have to do is get a single judge at the Supreme Court.
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2 Now, I know it sounds on its face absurd, but I
' <~ 3 have seen a part of that system work. Now, I am just suggesting -
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4 there are thir about resources and that, but I am just saying l 5 if one were really at --
6; MR. DIGNAN: That doesn't get to his point, because l
7' you are positing they get to the Supreme Court. Why is he 8 there? It has been denied all the way.
9 Now, what do you think, realistically, what a justice 1
10 is going to do when he is f aced with this TRO to halt a multi-11 billion project in which the guy handing to him has to admit, 12 "I was denied a stay at the.Licensihg Board,, the Appeal Board, l' s ,
13 the Commission, the Distri~ct Court, the Court bf Appeals. And 14 you are the 19th guy to look at this, Mr. Justice, stop it'"
15 MR. MC GARRY: I agree. What I am saying --
16 MR. DIGNAN: In all fairness to him, I don't think 17 that is any solution. Racing to the Supreme Court in three days 18 is going to get you just a series of denials to hang on your 19 wall.
20 MR. MC GARRY: Sure. Sure. Admittedly you are 21 not going to go that far. You would be foolish once you did ;
[\ 22 get two or three bites at the apple.
23 But what I am suggesting is, if one or two or three
("%
\-) 24 people have denied it, then there is a doggone reason why it
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25 has been denied.
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16 1 MR. DIGNAN: The probably reason, or one probably l /~T )
\~/ reason might well be, in fairness to the intervenor point of 2l _
! 3 view, is that they don't have time to really put together a i /~s.
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4 persuasive presentation. 1 5 MR. MC GARRY: And that is something we ought to I
6 address, because that is a differe.t subject matter.
7 MR. DIGNAN: And it is not because they are bad 8 lawyers or anything else. Or resources. It is just a question 9 of just plain time before the trees are taken down.
. 10 MR. CHO: Well, I think Sandy brought this point up.
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11 MS. CARON: Seven days is not -- ;
12 MR. CHO: Is that a valid point? Is that a point
() 13 we ought to pursue, given the present immediate effectiveness 14 rule and given the present stay standards. Should there be 15 an expansion of time within which appeals can be based?
16 MR. DIGNAN: Well, Sandy brought it up, as I 17 understand it, in terms of filing the exceptions, which is a 18 separate a distinct point from seeking a stay. )
1 19 I think the answer I have to that is very simple.
20 I am probably the only lawyer here who has practiced in a court 1
21 system, where we still used -- when I started there -- we have
() 22 now moved into the modern era - common law writs and exception i
. l 23 And in Massachusetts, you have got three days to
() 24
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performulate your exceptions, provided you weren't in the court l 25 when the decision came down. If the decision came down, you
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17 L 1 either took your exception right then and there or it was gone 1 LO 2 forever.
- 3. Keep in mind, all the exception is is a statement
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4 of what you are upset about. You don't have to give any I
l 5 reasons, you don't have to write a brief. I don't think that's 6 unreasonable. But the seven days is something else -- to prepare l l
l 7 a stay motion, might be something else again. i l l 8 MS. CARON: The problem is, that you are trying to l .9 do exceptions within seven days, and you might not even receive 10 the decision or aware of it within seven days.
Il MR. DIGNAN: Well, if you are going to complain l i
12 about the NRC's proclivity to hand their decisions t'o -
l l , . i
('~ 13 The Washington Post before they inform the lawyers, you have i 14 an agreement again, my friend.
i 15 MS. CARON: I hadn't noticed that.
16 MR. DIGNAN: This agency's performance in that ,
17 regard is outstandingly bad. But there is nothing we can do l
18 about it. They are so damned scared of the press they don't 19 dare do what every other agency that I know of does, which is l
20 just give you the courtesy of a phone call, so that when )
21 The Boston Herald calls you at least know the damn thing is 22 down.
23 MR. MC'GARRY: All my experience has been that I i( 24 .do get a phone call from the secretary of the Chair, saying
. AwFWwd Reporters, lm. j 25 that.there is a decision. 'And I think the presumption that ;
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l-18 1 we'have to operate under is'five days is reasonable. That is j'
2 what the regulation now provides when you look at the service l
f_g 3 rules. If you have a motion, youhave 10 days.to respond, plus V '4 then you tack.on five' days. That's the reasonable --
l 5 MR. DIGNAN: It used to be three.
l 6 MR. MC GARRY': Now it's five. And I think five days 7 is reasonable.
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8 And I think your problem probably is, is internally l l 9 once it gets to you. My experience is the NRC has always mailed 10 it out on the day it comes out.
11 MR. DIGNAN: Yes, but you are in Washington.
12 MS. CARON: It doesn't even --
. 13 MR..DIGNAN: This is where I am going to to side ;
i 14 with her being up there in New England ~ .
15 You know how I get decisions? The client pays to j 16 fly a courier down here to get it back to me if I to move fast 17 on it, because there is no sense of going to wait for the mail. ;
l i 18 MR. MC GARRY: I am not talking about Day One. I ;
19 am' talking about, is five days a reasonable time just for ,
i 20 service -- all I am talking about is service. Will you get !
l 21 that decision by the fifth day? That's all -- I am not talkingi -
22 MR. DIGNAN: Sure. So what good does that --
I 23 MR. BUTZL': The language reads: within seven days 24 after service of the decision, l([ '
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25 MR. MC GARRY: That's what I am:'getting at now.
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P 19 1 What is service? Service is five days, because that is what 2 the rules provide.
^3 .MR. DIGNAN: Okay. And in five days, if I am the 4 applicant's' lawyer, .and you need a stay -- reules -- as soon as
'S that. decision comes down, the client calls me up and says,
.6; "What can I do now?"
7 And I say, "The day you get the construction permit 8 you can knock trees down."
9 So unless the Staff, which it generally does, holds 10 up that permit for a few days -- if they hand it to me the 11- next day before they even have read the decision, I am going 12 tohave that site cleared. And that is. precisely what went '
O 13 on at'Seabrook. ,
14 Take my word for it, that's what went on at Seabrook.
15 I picked up the phone, called the chairman of the appeal board 16 -through his secretary, I said, "We have the construction 17 permit in hand, I want the Chairman to understand that unless 18 I am advised to the contrary -- and of course we will obey an 19 oral order -- I am turn.. 2g the bulldozers loose. "
20 The secretary came back on the phone and said, 21 "The Chairman is perfectly aware of what the rules are, and
-.O I 22 your interpreation of them." And we turned the bulldozers loose.
23 Now, u n d e r .a.t a n d , I am going to defend this rule.
24 But I don't think the defendant, on the basis'that they are
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l L 20 1 everything else, doesn't give them time to get a stay motion, i '
)' 2 _I think that is absolutely true.
3 MR..MC GARRY: Okay,~I think you_are misunderstanding. .
l 4 me, at least in this discussion right now. :
5 I mn not -- all I am trying -- let's go through the !
6 steps.
7 It seems to me, the first step is, you get an initia:. ;
8 decision. That's Step No. 1. That starts the process.
9 Now, the next step is, service of that initial t
10 decision, because the rule speaks to service and then time to 11 . respond.
12 So let's come to some agreement of.what is a reason-l 13 able period of time for service. -I submit five days is a 14 reasonable period of time for service.
15 MR. DIGNAN: Well, what happens in that five days !
16 on the site?
,17 In other words ,- you are saying that we should 18 repeal the immediate effectiveness rule -- {
19 MR. MC GARRY: No, I mm not saying that. ;
20 MR. DIGNAN: -- for some period of time. Because 21 they have no protection for that five days. The only s - 22 protection they have is the rule that says the Staff shall '
23 issue the contruction permit -- not may -- shall, within 10 24 days. ;
- Am FWwd Rmo,ws, fm. !
25 Now, what the Staff as a practical matter often does L
?
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21 l
1 is delays about seven days in getting that permit out. l
() 2 MR. MC GARRY: My experience has been less. My 1
g~) 3 experience has been you get it in about three or four days. l
%)~
4 MR. DIGNAN: Okay. But I know they have that power 5 if they choose to exercise it.
6 And what they in fact do, it just takes them a i
7 certain amount of time to turn the paperwork around.
8 So forge- talking service. The fact of the matter l
9 is, once that permit is slapped into the hands of the project 10 manager, you have a perfect right under the present rules to 11 tear the site apart.
12 And so talking about when they ge't served or
[
\_- 13 anything else is useless, bec*ause the permit comes out, and 14 there is absolute right under the rules to tear the site apart 15 at that point -- and it was exercised in every case I have i
i l
16 been in. 6 l'7 ; And -- you know, we did it very honorably and ;
1 18 honestly, and I informed the Board before we did it But we l 19 did just that. And we argued in subsequent motions that the 20 environmental impact --
21 MR. MC GARRY: Why did you do it? l I'h
\d Why did we do it?
22 MR. DIGNAN: l 23 MR. MC GARRY: Yes.
24 MR. DIGNAN: Because my client was sitting up there ,
1
! Am-Fafer:l Reprters, inc. l 25 with a construction crew ready to go and watching money go down
22 !
, 1 the tube and catching hell from its rate regulators. !
I t
l N%) 2 MR. MC GARRY: So there is a reason to go
\
1 l 3 immediately, isn't there.
4 MR. DIGNAN: I told you, I am going to defend this 5 rule. But I don't think you can defend it on the basis that 6 they get treated with plenty of time to put a stay motion 7 together before something that they don't want to happen happens.
8 MR. MC GARRY: I may be coming at it from a l l
9 different point of view. ;
i 10 I am trying to get, without addressing myself, 11 deftly avoidly whether or not I am for or against any effective- ;
1 12 ness r.ule, and I see your point. -
l O>
N- .13 I was just trying to get a feel of.how long ohe 14 seeking a stay would feel would be reasonable, how much time
- 15 do they need, or how much time would I need to file a stay. !
l 16 MR. BUTZEL: -Seven days.
17 MR. MC GARRY: Do you feel the rule is reasonable?
18 MR. BUTZEL: I feel seven days is enough, once you --l 19 MR. DIGNAN: Provided you have it in hand for seven 20 days?
21 MR. BUTZEL: Yes, exactly. Once you have the thing
- 22 in hand --
l
( 23 MS. CARON: It is actual service, though, not --
,() 24 MR. BUTZEL: Maybe just change it, after receipt;
%.Federd Reporters, Inc.
25 maybe 10 days.
23 1 MR. CHO: Question down here.
2 MR. MILHOLLIN: What about the time for deciding it?
3 Does-it do you any good to have a postponement of effectiveness O 4 for seven days, and so you go up and file your stay, and there 5 is an enormous record, and the appeal board is looking at'this-6 enormous. record, and now it becomes immediately effective.
7 Don't you need time to respond to the stay motion, 8 first of all, and don't you need time to read the response and 9 read the record around it?
10 MR. BUTZEL: I understand at this point that we are 11 simply discussing the issue of how quickly, how much time 12 . people ought to have to file their stay. We are.not discussing
() 13 whether there ought to be a suspension of the effectiveness 14 of the decision until something has happened.
15 But I think people can be required to --
16 MR. DIGNAN: But before we -- don't duck it out, 17 because you want that winner that maybe everybody can agree 18 on. Even those who are prepared to defend all the' rules as l 19 they stand to the death, could they live with a rule that said, 20 in effect,-- in other words, leave everything as it is the 21 same, except that it says the initial decision shall become
() 22 effective 20 days after its date, unless otherwise stayed?
23 In other words, forget how long it takes the appeal g 24 AcaMer:t Reponers, Inc.
board to act or anything else. Just say, the decision is not 25 going to be effective for 20 days. And that gives whoever is
e 24 1 unhappy 20 days to put their act together, get a piece of paper
- O 2 in, .and get the appeal board to make the stay in effect
'3 ' permanent while they see'the case.
4 is that possibly the solution to this whole problem, 5 just to repeal the rule to the extend of saying, effectiveness 6 ' won't take over until 20 days after?
7 Because the one legitimate gripe that I have heard 8 on this rule is that nobody can really do anything before the 9 bulldozers are turned loose.
10 MR. TOURTELLOTTE: But you don't really have to 11 maange the rules to get that tracked, except an assurance of 12 getting_that.-- because the board can stay the effectiveness
-13 of its own initial de' cision. '
14 MR. DIGNAN: It can stay the effectiveness of its 15 own initial decision, and assuming it is being intellectually 16 honest, it can only do so if the Virginia Petroleum-type test l 1
l 17 is met, and to put together the piece of paper that meets that 18 test is not a 5-minute operation.
19 l MR. SMITH: Oh, no, I don't agree with you there.
I i 20 We wouldn't have to be satisfied that the four 21 standards are met before we have provided an opportunity --
22 MR. DIGNAN: You interpret the regulations different '
I 23 than I do, and different than the draftsman did. Because that (f 24 AcaJedrrst Reporters, Inc.
is-what 2788 says, that all the stays are going to be governed 25 by that standard.
L .- - . -- - . - .-. -- _ -. - .
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1 25 L
s l
1 MR. SMITH: You are equating a stay with a deferral O 2 of effect'veness for the purpose of providing time?
3 MR. SIGNAN: No, I am.not.
4 MR. SMITH: I didn't understand, then.
I 1
5 MR. DIGNAN: But the problem with deferring effec- l 1
6 tiveness is right now, the licensing board has no power at this
! 7 point-to delay the effectiveness of its decision.
8 MR. TOURTELLOTTE: Yes, it does.
9 MR. DIGNAN: No, it does not.
10 MS. CARON: Just a minute, Dave.
l 11 MR. DIGNAN: The regulations mandate that it will 12 be effective, it will be effective when issued unless they
- stay it.
. 13 .
j 14 In other words, they can't put out a piece of paper i ..
15 that says we don't stay the decision, but rather we just won't <
l 16 let it become effective for 20 days. They haven't got that l-
' 17 power. .
I 18 - And the Staff is ordered to issue the license within 19 10 days af ter the decision comes down, by the rules.
. 20 MR. TOURTELLOTTE: Well, I guess it get's esoteric, 21 maybe esoteric, but my understanding of the rule is quite l <
22 different. .And that is that we are talking about different i
23 rules.
! ) 24 And one is the rule which says that the licensing
{ Ace-Federti Reporters, Inc, 25 board can run the proceeding any way they see fit - .those i w -- -- .-N--- ~ -, 9 ,. -
- . . .n - . - . ~ - , - . = . ~ . - . - - . . - . - - - - _ . - . - - . . . - . , - . ~ . ..
26 ,
1 'aren't the' exact words.
2 And the other one is the rule on stays. 'And the l 3 other regulation is the rule on when is the immediate . ef fective- l
-.( 7 4 ness rule.
)
"5 And'what I am saying is, that a licensing board can ,
6 issue a decision, come down with.an initial decision, .and they. ,
7 can, if you don't like the word stay, they can defer the
-8 effectiveness of that initial' decision for 10 or 20 or 30 days, l J
?
9 or six months, or indefinitely, if they want to.
10 MR.'DIGNAN: I suggest you read what the Appeal Board l 11 said the last time a licensing board tried to, change the rules
'12 on'when exceptions could be' filed.
13 To put it bluntly, the Appeal Board;took the' 14 -licensing board apart for doing that.
15 Now,.I just can't --
l 16 MR. SMITH: Well, that's a little different 17 considerati'on . I am not quarreling with what you say about the 18 rules as far as effectiveness is concerned, because frankly, 19 I don't know.
20 You are referring to an entirely different case in
. g.j
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.t 21 : which . the licensing board provided for a different period of t .22 time to file exceptions. And the Appeal Board said, "Well,
- $ .23 .dnat's for the Appeal Board; the Appeal Board controls that." ;
24 And that was simply a jurisdictional matter.
IAm Federti Reperters, Inc.
25 But assuming that you are right, and I think you i
I,
. .- - ._ __ .. . . , _, ._. - ~ . _ . - _ _ - _ - , -- - - - _ - - _ . - _
27 1 probably are, that we don't have any authority to delay tO
\'#
2 effectiveness -- I do think as a practical matter, however, 7s 3 where there is a problem, licensing boards can one way or the (m) 4 other telegraph what their decision is, put the parties on 5 notice, perhaps even circulate what they propose to issue in 6' 20 days. j I
7 I have done that insofar as specific findings is 8 concerned. And I see no rule against. l 9 One way or the other, we have the power to get to j 10 the parties the information that they need to prepare themselves l 11 if it'is desirable.
. 12 1 . MR. DIGNAN: Okay, but sayin.g that you have it one
() 13 way or a'.other, and I can't really disagree with that, although 1
.14 I-' suppose if I was before you it would behoove me to do so,
]
15 I would have no hesitancy --
16 ! The point is, is it good to have a system that i l
17 relies on individual licensing chairmen to be imaginative !
18 enough, or a board to be -- in other words, generous enough to 19 do this to the loser?
20 Or is it better to put the bloody thing in the 21 regulations so everybody understands it?
) 22 MR. SMITH: Well, I think you have almost arrived l
23 now at a consensus.
O( j 24 MR. CHO: Well, that is what I think we ought to
' Ace-Fed:ral Reporters, Inc.
25 pursue. I don't think we need to decide the question now l
28
, 1 of whether the licensing board has the authority to delay (J
2 the effectiveness of the decision.
3 But the important is Tom's suggestion, is that a 3
^%/
4 good one? Should the system be set up so that a decision, 5, when issued by a licensing board, be deferred for so many I l
6{ days, say, 20 before it becomes effective?
l l 7 Any views against that proposition? j MR, MC GARRY: Yes, Do you want me to go on?
8!
9 MR. CHO: Yes, go ahead, i
10 MR. MC GARRY: Again, I come back to my position, 11 that you have gone through the hearing process, you have been 12 before the licensing b6ard, you get that decision from the g- . l
(_/ 13 licensing board, and doggone it, that is more than a preliminary 14 decision, and it should be extended some credibility.
15 We have got people with a bulldozer or whatever l
16 the situation might be, that they are anxious to get started 17 ; with the project. You have got money, you have got manpower, I
18 you have got commitment that you have got to make.
19 You need some reasonable semblance of order. And I 20 think --
21 MR. DIGNAN: Well, let me play devil's advocate.
(~)
k> Is this semblance of order -- the decision comes I
22 !
1 I
23 down, goes in mail, winds up on her desk in three days --
rs i is, ) 24 remarkable performance by the U.S. Mail.
! Ace-Federd Reporters, Inc.
25 She opens it up, and at least in the case of Seabrook,
29 1 the decision was that thick (indicating.) i O
\'_/
2 Now, I don't give a damn if you are a speedreader,
,c) 3j it is going to take you a while to figure out what was decided
'\ J l 4 here.
5 She reads her way through it. Meanwhile, back at 6, the ranch the Staff has given us the permit.
i 7 And the client calls me up and says, "What can we 8 *do with the permit?"
9 And I say, "With the permit, you can take the 10 bulldozer and knock down the trees."
11 Now, I am perfectly prepared to defend the result, 12 ttat we should be able to' knock down those trees. But if you (D
\_/ 13 are going to say, and I may disagree that she should have any 14 shot at stopping that --
15 But, on the other hand, if you are going to give 16 her her shot, it seems to me you ought to give her a fair shot.
17 And it is not a fair shot to put her in the position where 18 by the time the licensing, the appeal board makes the decision, 19 the trees are down, and I am in there yelling -- which I did, 20 I made no bones about this.
21 It drove Bob Backus up the wall. Every time the
/~)
\/ 22 thing came up again I said, "Look, the damage is all done.
23 There is no irreparable harm."
(~\
(_/ 24 MR. SMITH: We are not about where effectiveness Ace-Federd Reporters, Inc.
25 lies. That isn't the issue now. The issue is a reasonable (
i 30 j 1 opportunity for a person to make a case before it is moot.
2 MR. DIGNAN: Yes.
I 3 MS. CARON: .Well, I take issue very seriously with
_O-4 Mike's argument about the construction crews and what not. I 5 have lived with construction crews problems all my life.
5 But I don't think. you are saving a nickel when you 7 later_get suspended are derailed or design changes or the sort 8 of things that have run Shoreham to $1.337 billion. You know,.
9 if you can wait 20 days, or even six months, you might 10 conceivably have a situation where the thing really is res 11 judicata and you don't have subsequent derailments that you
. 12 have now.
13 MR. DIGNAN: You can wait six months. I mean, t
14 that is where I get on Mike's sidc.
15 Because, look -- let's all lay.it right out on the 16 table. One of the advantages of getting out of this business, 17 which I have, is that you can lay a few things out on the table.
18 'The opponents in most of the cases -- I am not 19 sayi ng in all of them, and I am not saying anybody in particular 20 represents somebody like this -- I am saying I have run into 21 a lot of opponents, that their one desire in life is to delay
( 22 and block that nuclear power plant.
23 It is not a question of really fighting about whether
) 24 this valve ought to do that.
dce-Federti Reporte,s, Inc.
l 25 And the delay weapons built into this thing for ~. hem i
31 1 are now overwhelming, in my ,adgment. And you put six months 2 on that, and then the next question I am going to be asking I
, -)
- 3i the people who want to change this rule is, "Okay, you have L/
4 delayed for the appeal board. Are you going to delay for the l
l 5 Commission to have a shot, too?
6l "And then why doesn't the same logic dictate that 1
7 you don't build a thing on that site until the Supreme Court '
8 of the United States has denied cert?"
l 9 And if his argument is right, that you are mocking i
10 the appeal process by allowing anything to go forward, then l 11 nothing should be allowed on that site until the Supreme Court i
I 12 has denied cert.
. 13 MS. CARO!: Well, certainly until there is an 14 opportunity to file a stay.
15 MR. DIGNAN: Okay. Now, with the Supreme Court?
16 Because with all due deference to my learned friend over here, 17 , realistically that is going to hold every plan up for a year 18 to two years. .
19 Now, I can't believe that that's good concept.
I 20 MR. SMITH: Now, isn't it true that today the way l
21 it works, and I follow this practice, my secretary calls up
! (~')
s- 22 l all the parties and reads the order and says, "Here is the l
i 23 decision."
l () 24
' Ace-Federal Reporters, Inc.
When you receive that order -- and you believe her,
! 25 that she is who she says she is -- you ct.n, if you wish, begin
32 j' I with your bulldozers, that moment.
2 MR. DIGNAN: No, you have to wait for the (inaudible) 3 to issue, from the Staff.
O 4 MR.-SMITE: Excuse me, right.
l 5 And my experiencA ha3 been that it is simply just .
6 a matter of a few days, unless there is'a surprise condition 7 which they'weren't expecting.
8 I simply can 't see why, not talking about who should 9 have the power to make decisions effective -- that's an entirely 10 different matter. I simply can't see why, if for-no other 11 reason than simp 1y courtesy to the lawyers'who are working on 12 it, that they not be gi'2n somehow an op,portunity::to rationally
() 13 and in an organiced fashion b,e prepare papers to seek a stay.
14 MR. DIGNAN: And defend the stay.
15 MR. SMITH: I don't think there is any strong 16 ' constituency for whatever regulation now requires that a 17 decision be nondeferral. I am talking about effective -- the 18 effectiveness be deferred until a date certain.
19 MR. DIGNAN: If you defer the effective date -- you 20 know, I thought 20 days, and maybe that's too long, I don't 21 know. But let's say it is 15 days. It is just that simple;
() 22 that is the only change in the regulations.
l' 23 That gives everybody a chance to go in and ask for l
()_ 24 pc.4.o.r : n.pon n, inc.
'it, everybody a chance to respond to it, and the appeal board 25 to decide it. If the appeal board says, "No stay," then the I
(
33
, 1 bulldozers are cut loose."
\_) What is wrong with that kind of a rule?
2 rg 3 In other words, you get one crack at a stay before V
4 the bulldozers are turned loose.
5 MR. CHO: Jim.
6 MR. TOURTELLOTTE: There are two things that come 7 to my mind.
8 One is getting back to Tom's argument about giving 9 people a fair shot and sort of in response to what Mike had 10 to say.
11 And then he went on to say well, the decision comes 12 down, in three days you get the initial decision, and the
('i .
\' 13 bulldozers are ready and so on. ,
14 And I think the problem with that analysis is that 15 it doesn't go back far enough in time, because if you go back 16 in the proceedings, the fact is the intervenor has had their 17 fair shot. The intervenor who participates, participates in 18 the proceedings, and if they had met the responsibility that 19 they hr 3 in the proceedings for coming up with their case, 20 for defeating the burden of proof that the applicant had set 21 out, then they would have prevailed and the initial decision im k-) 22 would be in their favor.
l 23 But you don't just come out with a decision and
, e.
k) 24 start with the equities rolling out of that date.
You have Ace. Federal Reporters, Inc.
25 to go back and chink, well, why is it that a stay is hard to
. _. . .__ . . . _ . _ . _._. _ _ _._ _ ... ._ _ . _ _ _ _ ._ . _ . _ .m. _ . _ - - _ _ _ . _ .. .
I l-34 i !
! . 1 come by in'the first' place. It is hard to come by, because :
l- O. 2 . presumably we have gone through a tremendous review by the fs 3 regulatory staf f and weL have gone through a lengthy and 4 detailed examination before a licensing board, and the ,
.5 licensing board has made up its mind, based upon the evidence 6, beforefit, that this is the. thing that ought to happen: a l 7 decision.ought to issue, a permit ought to issue -- assuming .
8 they come up with that decision, because that presumably is ,
9 what we want to stay.
10 So it seems to me that it is not valid to say, 11 well, you don't have a fair shot for a stay, you don't have 12 a fair shot at keeping the work from progressing if you are ,
13 only given five days.
14 To me, it seems to m,s that the party who is 15 af fected by this has the responsibility of coming forward.
16 That is in the first place.
17 ' In the second place, if you are only talking about i
'18 the difference between five and seven days, for instance, 19 there is always the request for an extension of time to file
.20 l a' stay, and for the. life of'me, since I have been here, I 21 cannot think of a single request to file a stay. for permission i
l .
22 to-file a stay out of time, that has ever been denied by an
! i j
l 23 appeal board, particulatly if it is --
24 -(Simultaneous conversation.)
Ace-Federti Reporters, Inc.
25 - .is on the basis that the mail has not been
i-l l 35 ,
I delivered a t the proper time.
- ,)
x /
T1S2 2 MR. CHO: Al, nould you like to respond?
3 y)'
r' MR. BUTZEL: Yes.
4 The first response is obvi~ No one can deny 5 you additional time to ask for a stay as long as the thing '
6 isn't stayed, because then the applicant can go thead and do 7 what it wants to.
8 What really offends me about your comment, and I ,
9 *nust say it is the first thing I have taken offense at today, 10 is that your comments are the comments of a person who has i
11 ' absolute confidence in an initial decision.
.- . 12 . To'those of us who have worked in courts, district i
(. * -
(J s 13 courts get reversed, and someday licensing boards may get 14 reversed, too. Sometimes they do from time to time, then.
15 Of course there is a presumption that a decision is 16 a correct decision, but if you look at the appeal records on 17 courts in most state and federal courts, you see that a lot 18 of them get reversed and changed.
19 And the crncept of the stay, and why I think it is 20 important that there be time to go to an appeal board, for 21 example, is that someone else looking at it with a different (3
\/ 22 eye will have a different point of view or different position !
23 on what the strength of your case is, f3 k) 24 And for you to say that an intervenor hasn't met Ace Federrt Reporters, Inc.
25 his burden of proof because the licensing board has come out
'l j 36 ,
I and said we think a license ought to be issued, and that is 2 an accurate statement by definition, but it is a presumptuous l
3 one, as well.
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_)
4 MR. SMITH: We use the courts as an office, district l- ,.
5 courts whose decision have greater weight vis-a-vis the l '6l . appellate courts than ours do compared to the appeals board, 1
7 quite regularly stay their own decisions until the necessary, !
8 the~ attorneys.have an opportunity to address the decision.
9 MR. BUTZEL: And they do so almost habitually 10 where they are concerned about the, they are uncertain in their >
11 own mind.
12 MR. SMITH: I would feel that as a presiding
(-).
s_/ 13 officer,*I would at least like to have the opportunity in a l e i g 14 given case to allow people to address the stay aspect of the 15 decision. It sure will make the best decision it can, but 16 I still think there should be an opportunity to make the 17 complaint.before the work is actually begun.
l 18 MS. CARON: Well, the rush to bulldoze and preclude 19 almost seems to indicate a feeling of question to me. It is 20 an affront to.the appeals procedure, but it is more than that, 1
l 21 too.
f 22 I think that had I represented a citizen group or 23 whatever, I would have every reason to feel a little bit h 24 Ace Federd Reporters, Inc, overwh'elmed..
25 But the fact of the matter is that I represented a l l
37 I state, and not a small one. And I still had a feeling that 2 the deck was stacked in procedural terms.
3 But it goes to something else, and that is that the
/~T 5
~'/ 4 states as nearly as I can tell are really not set up to respond, 5 Now, that may be their fault, and it is certainly not something 6! the NRC can deal with or whatever.
7 But if there are any other states like the State of 8 New York, this isn't an everyday matter. It isn't something 9 that any of us deal with all the time, or that we are really 10 specialists in, and maybe they should hire Mr. Butzel's firm 11 and do it that way or something.
i 12 But the fact of the matter is that it isn't that
(,)
f'
. 13 simple to correct the coordinated opinion of the state as to a
14 what should be done.
15 MR. MC GARRY: I just want one comment, for 16 perspective purposes.
I 17 From a utility's point of view -- just so it doesn't 18 seem like they are rushing to bulldoze -- usually it is about 19 three or four years -- you know, they have planned the project, 20 and they have filed these documents -- and that is why they 21 are eager to get on with the project. l 22 It is not that "The c'.tizens be damned!" It is
_ f( ) c 1
because they have_ waited for such a long time, and they feel 23 l
(') 24 Ace & ,Kral Reporters, Inc, that they have gone through this process and they have finally 25 got this permit.
38 1 And I think also, for perspective purposes, we
(\') 2 should remember that it is not just one permit that a utility
_ 3 has to get. And I know in one of the Duke cases, it was 76 4 permits. In each instance you get a permit, and that's it.
5 And so they are looking at this as getting another l
I 6! permit. And so that's why -- once I get this permit, then I 7 can check that one off. And they can check -- and what you 8 get 76, you just start checking them off.
9 So that is why they are there and ready to go.
10 But that is an aside, for perspective purposes.
Il MR. BUTZEL: One observation I have about that is 12 you know, you don't know unless you are given some advance
("T
(_) 13 warning 'when the initial decision is going to come out. And.
14 if the utility has had its construction force sitting up 15 there for two or three months waiting for the initial decision 16 the come out, some shareholder in the utility deserves to at 17 least ask questions in the annual meeting, if not suggest that 18 that wasn't the best thing for them to do.
19 MR. DIGNAN: But that statement indicates a mis-20 apprehension on your part as to what kind of a construction 21 for you need to start a project. You don't need a massive i
/~)
(_/ 22 construction force to start a project. You are talking of a i
j l 23 relatively small number of people and a small amount of l
es
()
l 24 machinepr.
j Ace Federti Reporters, Inc, 25 MR. BUTZEL: Fine. But then it shouldn't take you
l 39 g3 1 any great length of time to assemble that force. And the idea L) 2 of waiting an additional 20 days shouldn't be burdensome to the
() 3 utility if that the course that you are talking about.
4 MR. DIGNAN: I was the proponent of this rule, don't 5 look at me.
6 (Laughter.1 7 MR. BUTZEL: That was essentially the point that 8 I wanted to make in response to one Mike had made earlier.
9 You know, it is not as if -- either you have a small 10 construction force, in which case you can assemble it quite ')
11 rapidly to do what you have to do, and the additional 20 days 12 of waiting should be no great burden. i r'N l
'-] 13 Or it is a very large construction force, in which l 14 it is going to take you some time to assemble it anyway to get 15 up there.
16 MR. MC GARRY: I think we are getting off the point --
17 I think we really were on the point just a little while ago, 18 and that was, what period of time is necessary to give a party 19 a fair shot? And that is where we were.
20 MR. DIGNAR: That's exactly right.
21 I am not trying to defend 20, 10, or anything else.
l O 22 I was just wondering if the whole solution to this problem i
23 was to just make the decision effective X -- whateve' X may
( ;
(/ 24 be -- days after it comes down. And in that X time it is up Ace-Federal Reporters, Inc.
l 25 to the person who is unhappy to work his will in the appeal
40 f- 1 board and get his stay. Because realistically, that is his
(_)3 2 only shot.
3 MR. SMITH: Don't forget another problem.
[' )
4 The appeal board does not favor stays be filed 5! directly with them. They would like to see them back at --
i i
6 i
MR. DIGNAN: I am assuming there has got to be time l 7 to have gone through the licensing board on the way up.
8I I am assuming the licensing board, as the appeal 9 board indicated in the decision where it took such a motion, l 10 but agreed in its older cases they hadn't said that, that as 11 a practical matter, one can assume the district judge is going l 12 to say, denied.
['~)
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13 MR. MC GARRY: But you have to go through those l 14 ; hoops.
! l 15 I MR DIGNAN: And maybe what we ought to do is cut 16 out the stop, and say you have got 20 days to get to the appeal l 17 board to stay the thing, or 10 days.
I 18 MR. MC GARRY: Let me -- at least, so I can go on 19 i record so you know where I am coming from, and I haven't 20 thought this totally through, but I am just going back to my i
21 i federal court experience --
es 22 And a workable rule to me would seem to be one that i 23 gives the party -coming in for it time to be aware of the
(%
~) 24 decision. And we don't have a luxury when we are in a ctay Sce-FcdIrel Reporters, Inc.
25 situation. In other words, we really have to scamper around.
41
- 1 We have to find out what the decision is, and whatever period
. O ..
2 we all think is necessary, so be it.
/g 3 But then to finally. tune a magnificent brief, that
'V 4 is not the function of.a stay. Many stays are oral. They 5 even make references to oral requests.
6 Because we are talking about something that is 7 going to prevent the bulldozers in this situation.
8 So I, speaking for myself, am not for an elaborate 9 period of time in which we can-finely tune a Justice Frankfurter 10 decision. That is not a stay, in my mind.
l 11 A stay in my mind is if there is an ample opportunity l 1
.12 to'be able to, based on the courtroom experience, to be able O 13 to"come in and articulate what the situation is, and feel that 14 they have made -an adequate showing, adequate stay stowing.
15 MR. TOURTELLOTTE: Let me ask a question about --
16 and I will. direct this to Tom, because I am still a little {
17 puzzled.by this --
18 We are talking about the rights at the licensing 19 ' board or the powers of the licensing board, whatever they be.
20 Do you believe, Tom, that a licensing board cannot 21 issue a decision where they say, "This is our' initial decision ,
i
'O, 22 and it shall become effective. Today is the 18th.
t Our decision 23 Eshall become effective the 28th unless we are otherwise 24 petitioned to reopen and reconsider this."
ScbFederst Reporters, Inc.
25 Can they do that?
42
,s 1 MR. CHO: No, I am not sure. Whether ti- can or
! \
V 2 not, though, Jim, is too important for our purposes.
3 MR. DIGNAN: Well, keep in mind what the rule says, (w]
\_
4 okay, is: "An initial decision directing the issuance or 5 amendment of a construction permit, construction authorization 6 or { unintelligible), shall be effective immediately upon 7 issuance, unless the presiding officer finds that good cause 8 has been shown by a party why the initial decision should not 9 become immediately effective, subject to the review."
10 J Mow, good cause, as interpreted in every regulation 11 prior to them actually putting it in the reg, meant Virginia 12 Petro'leum Jobbers. That is why I said, that if the 1,icensing
('-,)
13 board is going to be intellectually honest and not' just hand 14 out a stay because it thinks there might be somehing wrong, 15 they are going to have to put themselves Virginia Petroleum 16 Jobbers in order to give that stay.
17 Because there are legions of NRC and AEC decisions 18 that say good cause in this context equals meeting Virginia 19 Petroleum Jobbers. And that is why Virginia Petroleum Jobbers 20 was finally written into the regulations in 2788.
l 21 MR. SMITH: Has that been litigated, that particular I
/"%
l \- 22 regulation? l !
I 23 MR. DIGNAN: What do you mean, litigated?
O)
( 24 MR. TOURTELLOTTE: It hasn't been litigated in Ace-Fed fal Reporters, Inc.
l 25 terms of what I am talking about.
1 i l
43 1 MR. DIGNAN: Has the precise point that we have 2 been discussing been decided? As far as I know, no.
(]); 3 MR. TOURTELLOTTE: John, the reason that I am pursing 4 this is that it seems important, at least to me, to understand
-5 what everyone's rights are fully right now without a change, 6 before we suggest a change.
7 And if there is a way to accomplish the same ends 8 under the given system, that carries some weight perhaps of 9 whether we ought to be changing the system or not. l 10 And let me say that while I know full well what 11 that decision says, it also says under the powers of the 12 presiding officer, the presiding officer has the right to take
.O 13 such actions as are consistent with the whole thing.
14 It seems to me that consistent with the regulations 15 'in the act, it seems to me that a presiding officer can make l 16 a decision to put out his initial decision today on the 18th 17 or he can hold'it until the 28th.
18 MR. SMITH: Or perhaps he'could say -- In 20 days, 19 the director of NRR will be authorized and that will be our t- 20 decision today.
l 21 MR. TOURTELLOTTE : Right. Or he can even, if he
-O 22 wants to change it around, he can say, this is a proposed 23 initial decision. I would comments within 10 days. And that 24 is not an initial decision.
p:e Fed:ral Reporters. Inc.
25 MR. DIGNAN: I would'suggest it is going to take a i
i m-' , - - , ., - . .._4 , . . . , , - - - _ _ . , - , _-
l 44 1 very, very gutsy licensing board to play around that way, l
-()' 2 because in terms of a licensing board of this particular 1
i rw 3 commission calling up everybody and saying, "In.20 days we l
.U 4 are going to authorize this permit," this Commission would 5 get lacerated in the media:
1 6 One more example of'the NRC telling everybody what .
4
. I 7 they are going to do, but.giving no reasons for it. People 8 would be marching into court pleading, " Help."
9 If there is one commission that can't start with i 10 proposed decisions or anything like that, it is this one. They i II would get killed.
12 MS. CARON: Well, besides which, I don't understand -- !
O.
x- 13 well, I guess in psychological terms I do, because there is a j
I4 vested interest in'it --
15 But there really -- it isnt' that much trouble to 16 put it in here by right so that people don' t have to depend on 17 the grace and favor of the claimaint (phonetic). It just isn'tl 18 something you can depend on, Jim.
19 ; MR. TOURTELLOTTE: Well, that's -- of course, that 20 is another point. And I don't necessarily disagree with that.
21: But I think it is important to know, first, what 22 courses could be pursued. And the second question is, is this l l
23 a course that really satisfies or fulfills a need that somebody
-24 feels about appellate rights.
f ~ Federot Reporters, Inc.
l Ace-25 And it could be that changing the number of days
i 45
_gy 1 is the only thing that would be an acceptable alternative. But .
V 2 byLt he same token, it seems to me you have to examine creative 3 alternatives which exist under the rules.
["}
4 And while Tom'may be correct about the political 5 ' pressures that would come to bear, nevertheless the question is, !
- 6) is the legal right there or is it now?
7 MR. DIGNAN: What is wrong with saying, "In X days 8 the decision shall be effective and leaving the rules otherwise 9 unchanged?"
10 And I am not asking my friends here to agree with 11- that, because they don' t like the rules. But what I am saying, 11 .can't we all agree, Sven those of us who think Ehe rule is l
O 13 good, that it'wouldn't really do anything except give the fair 14 shot'that I am talking about, to say the decision shall come 15 down and shall not be effective, or shall be effective in X 1
l 16 days? l l
17 MR. . SMITH:- Can't we agree that we do-not agree on -)
L 18 .what the present rule provides, but if it does not provide for ;
f ,
i 19 a fair shot, it should? 3 l
20 . ER . DIGNAN: That we can all agree to.
21 MR. CHO: Yes, it is a matter of principle.
I
> 22- Then the next question is, does the present rule .
l 23 as' constituted, give a fair shot? And from what I seem'to
.O
\/ 24 gather from the discussion, it does not, at:least from the
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!. 25 standpoint of giving sufficient time for people to challenge t
I i
46 1 the decisions by the licensing boards l
(. 2 MR. SMITH: That is where we can't agree, whether j 3 the present rule does provide the presiding officer an oppor-4 tunity to provide that fair shot.
~5 I don't think there would be a chance to agree upon 6 that this af ternoon, because that is --
7 MR. TOURTELLOTTE: Well, I think the present rule 8 does provide a fair shot when you consider the whole process.
9 So I would disagree, I guess, with the rer; inder of the group.
1 10 MR. SMITH: Well, I disagree, too. I think we could l 1
11 figure out some way to do it. l l
12 MS. CARON: Yes, but the problem is that when I 13 -try to picture a chairman of a board doing~that, the only i
14 scenario in which-I seriously can picture the person trying ,
1 15 to creatively figure out how to give additional time to 16 intervenors and so forth, is' if that person were the dissenter l 17 on the panel.
18 .MR. MC GARRY: I have another suggestion.
19 I am on record agreeing with you, Jim.
20 I may be that you have an instruction from a -
21 regulation that says that the licensing board shall instruct l
() 22 on the last day of the hearing at the last minute, at the last '
l- 23 part of the hearing, to advise people of stay procedures and
() 24 Ace-Feded Reporters, Inc.
stay rights. i l 25 MS CARON: Yes, but you still don't know what you l-
!. b
! I l
47 l
j- 1 are staying.
! 's_)
L 2 MR. DIGNAN: Look, I like to think I am a pretty 3 competent lawyer, right? Maybe I am not, but I like to think
()]
4 I am.
5 And I will tell you right now, if I was in the 6 position where I was handed a 55- or 60-page decision on a 7 nuclear power plant covering technical things, and what it j 8 meant I either got a stay motion -- because keep in mind, 9 2788 only talks about emergency stays being given without an 10 answer being filed. It doesn't relieve me of the duty of getting 11 a proper motion before the tribunal.
. l 12 Now, to me a proper stay motion is backed up at. !
(\' >) .
- i 13 least by one affidavit and spells out the four areas under the 14 rule.
15 Now, doing that in, say, 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />, would be a l l
16 herculean task, in my. opinion. And I don't even get 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />, 17 under the rules, except by the grace of the Queen. And the 18 Queen at this point is the Staff, not the licensing board. ! i l
19 If the Staff in its wisdom holds onto that permit i
I 20 for a few days, I have got a few days. But if the Staff ,
e 21 slaps the permit into the applicant's hand at 12:00 noon, a 1
(~)'
'- 22 decion having come out at 11:59, I am a dead duck.
23 MR. MC GARRY: All right, let me just say this:
.f~\
\ /- 24 As a competent lawyer, you wouldn't have waited until Ace federal Reporte,s, Inc, l 25 you got that decision. As a competent lawyer, you would have l
l
. .. -- -. -. . .. - - - .- - - - - . - . - - . ~ ..~ .- -.
48 1 had the PRO and prelimany injunction, just like I had one O 2 " month _when it went before the Commission -- I was ready to go.
=
'3 I found out where Judge Haynesworth was down in 4 Greenville, South Carolina. And I had the papers all ready to 5 go, even though I hadn't gotten the decision from the Commission.
'6 Because as a competent lawyer, you are going to have 7 that package ready and willing to go. You know Virginia 8 Petroleum, and you have got your standards. That's. Point 9 No. 1.
10 Point No. 2 is, you have been in litigation for 11 three years before the NRC. You know what your issues are,
-12
, and those are the only issues you ,can advance anyway.
- f. ,
i k- 13 .
You don't need to be talking about need for power, 14 or whatever -- if you'are talking about the substantive issues.
-15 They are discrete items. You are not going to have to 16 generate a whole stack of papers, l'7 You have'got Joe Doakes who has been your witness 18 and he is going to just spout out whatever Joe Doakes said 19 before.
l 20 So it is no nerculean effort, because I strongly 21 disagree with that. Many a day I have gone in there in about
- f's.
22 four or five hours notice to a court.
i 23' MR. DIGNAN: That may be. First of all, keep in
(; 24 ~ mind, some of us are up -- we are hicks in the sticks and we
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25 are down here'with all you sharpies now, and we are going to ge b.
[
~ . - - - _ - . . . . - -- - - -. . . .. - . - - . - . - . - . -
l l
l 49 l . .
I killed, but that's all right. '
lO i
2 Look, the point I am getting at is, you may be able l '3 to put that_ package together. But in fairness to them, on a 4 nuclear case, and I have tried a few of these babies all the 5 way, I couldn't. And I will tell you why I couldn't.
l l 6 I don't know how the' licensing board is going to l
7 rule issue by-issue. The licensing boards frequently split 8 the baby on a.given issue. You want -- in the old days before l 9 EPA, you had.the whole thing, you want the. intake here, l
10 and they don't want the intake there, and the licensing board 11 sticks it somewhere inbetween. Maybe I got a good one, maybe 12 I don't.
. l L -
13 I think you are oversimplifying to say this is like 14 a. trial in district court where you can be ready for that
-15 decision and ready to march up there for a stay.
16 But even assuming you are right, my point 13, 17 I am not trying to litigate for X being any certain number of
'18 daysRor hours now. Right now, the possibility exists that
'19 at 11:59, he can telephone everybody and put a. decision in
! 20 the public document room or whatever magic funnel those 21 decisions first go into.
s-22 At 12:00 noon he can hand my guy a permit, and at 4
23 12:01 the bulldozer can have the first tree.
{ ({^)
24 Now, I think that's right but for much different pee-Fed;rci Reporters, Inc.
25 reasons than we have been talking about. But to say they have
~ ..
50
~'
I had a fair shot -- that's not a fair shot.
.)
2 MR. MC GARRY: I agree with you, you have to have a I
(l+s 3 fair shot and that 's all -- but I just want to respond to that 1 j
4 one point which I have said about three times . l 5 When you are in the state, doggone, you have got i
i 1 to move quickly. You can't have 20 or 30 days. l l 6l 7 But the key is, what is a fair shot? Sandy Caron 8 thinks you have got -- when are you going to get that decision?
9 I just don't think, at least under the present 10 rules we can rely upon the good graces of a licensing board, 11 chairman, secretary, to call up people.
,, 12
~
Now, 'certain licensing board chairmen will* do that.
I 1 ,
q ,/
13 Maybe some won't. Unless that is written into the regulations --
14 , but I can't see that in the regulations.
i 15 MS. CARON: The problem is, you couldn't complain 16 l of it if they didn' t, Mike.
I i l' 17 ( MR. MC GARRY: Exactly. So I am not holding that :
l l
18 out as a viable alternative.
19 MR. CARON: Certain secretaries here. But, you 20 know, suppose they were on vacation when that thing came out --
i I'm dead. l
,.s 21 I l i !
l 22 ! MR. MC GARRY: Exactly.
23 MR. SMITH: This is not simply a question of favoring intervenors over other applicants at all. We have to 24 f
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25 look at it also from the point of view of the adjucating boards i
51
,s 1 receiving these.
(vl 2 I certainly don't want a stay motion which is
/~'i 3 prepared overnight. I would like to have a little bit of
(/
4 thought put into it, and I am sure the appeals board would.
5 MS. CARON: It prejudices the outcome, too, really. I I i I l 6 With something that is done as fast as you can do it. Maybe 1 7 it is convenient for the bulldozers, but it is not very helpful 8 to the panel.
I 9 It is a matter of due process, and of course, you l 10 know, you have heard more out of the intervenors than you want 11 to hear. Schlesinger said in '71, the industry has got to 12 face the fact that the intervenors have bad manners and they O- 13 are repetitious. But they still get to be heard. And I think*
14 that that is part of the problem. You have got to hear them for '
15 ' 20~more days, or whatever it is.
16 MR. MC GARRY: As a representative of an applicant, i
17 I sure wouldn't want to go to the court of appeals with an i 18 argument that we tried it from the other side, we tried to seek 19 a stay and we never had an opportunity, and then they list --
20 and it is a good case on your part that you haven't had the i
i 21 time. I mean, that is a had case from my point of view.
' 1 l 22 So I am not for that. I want you to h.o/e a fair 23 shot, and I don't mean to say you versus me, because I may
\ -) 24 want a fair shot, too.
Ace-Fed:ral Reporters, Inc.
25 I think by virtue of me being in Washington it is a l
l
,._._.______ _ _ _. _ . . _ . ~ . _ . _ . _ _ _ . . _ . _ _ - . _ _ _ . _ _ _ _ __ ._
i 52 1 little easier for me. So let's come to some agreement.
I i 2 2CR. DIGNAN: Are we agreed, then, that there ought 3 to be -- that we can agreed, that whatever X is, there ought
(--
i 4 to be a regulation -- without at this point changing anything
! -5 else -- the regulation ought to read that the initial decision l
6 will become effective X days after it is filed, and whatever the l
7 magic triggering is going to be -- filing, served, I don't care?
8 MR. SMITH: I would agree with that. I would also 9 like to see some reservation left to the presiding officer not
' - 10 ' to do that upon a showing of good cause. . I think that the
-11 routine should be -- and at least they should be authorized 12 to do it.
13 MR. D'IGNAN: In other words, you would let the 14 presiding officer have it go effective immediately upon a 15 showing of good cause, to go immediate?
16 MR. MC GARRY: So that would then be a burden, l
17 let's say in the traditional. sense, to come in sometime after l 18 the proposed findings were filed and say, "Look, we are going 19 to request that this decision be issued immediately, effective l
20 immediately, and we can all file our papers in the three 21 months that it takes the licensing board to issue a decision 22 looking at the proposed findings.
I
- 23 MR. SMITH
- Because there truly could be a situation 3
() 24
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where immediate effectivenss --
l 25 MR. DIGNAN: Sure. A license change or spent fuel I
. _ _ _ . . _ . . _ . . _ . . - . - _ _ - - . - . - - . _ __. . ~ . . - . . _ _ . _ _ _ _ _ _
1 I
53 1 storage thing or something like that. ,
O'- I l
2 MR. SMITH: But at the very minimum, the presiding 1 1
1 3 officer should be expected to do it, have the authority to do
[}
4 it, should be. expected to do it absent a showing that he S shouldn't.
6 MR. DIGNAN: .Yes. And I think probably, the 20-day 7 or X-day limit ought to be only in construction permit cases.
8 I'see absolutely no reason'for not having immediate effectiveness '
9 on either an operating license or a license change case.
10 MS. CARON: Operating license of course, Jim.
11 MR. DIGNAN: Or a license change. i l
. 12 -
MS. CARON: To me that just isn't even a matter for 13 intervention. Once the construction site safety problems are 14 behind you, the operation is moot, as far as I am concerned.
15 MR. SMITH: That's a big business now.
16 MS. CARON: What?
17 MR, SMITH: Hearing operating license cases.
18 MR. BUTZEL: Lot's of people think that Three Mile 19 Island ought not to be repeated.
20 MS. CARON: Excuse m'e?
21 MR. BUTZEL: I said lot's of people -- don't be so l 'O.. 22 glib about the fact that operating licenses -- I mean, that is
. 23 'your ~ point- of view. I don' t know whether I share that point
' (~\
h- 24 of view or not, hce Federet Reporters, Inc.
25 MR. DIGNAN: Yes, well, I share that point of view I
l
. i 54.
I
. . . 1 for one simple. reason,-and that is, an operating license
's m
2 hearing the way they' conduct it today isn't going to turn up 3' ' any problems anyway.
4 MR. CHO: Well, basically, I think'this topic ~for
'S discussion here is on the construction permit, so we don't 6 'have.to get into the operating license stage.
7 MR.-DIGNAN: But-if we'can~ agree that that is good, ,
8 then the question is, what is the X?' I imagine that starts l
9 an argument.
10 MR. CHO: Okay, well, before we go on --
1-
. 11 MR.-DIGNAN: But maybe we don't have to resolve 12 that. We can just kick that upstairs (phonetic).
13 .
.MS. CARON: It is different with different places. j 14 You:take an intervenors' group where it is a 15 cohesive unit, such as -- you know better than I do about that.
16 That might.be easier to handle.
17 When you have to deal with the state geologist, the la . energy office, the public service commission, and the
-19 governor's office on a thing like this, you are going to need 20 20 days minimum even if it is a miracle.
21 l MR. DIGNAN: Yes, but when you ask for 20 days --
-22 and to me 20 is a good time, but you were at one point saying 23 six months -- to come back at you --
-( ) 24 MS. CARON: No, no, I was --
Ace Fedtral Reporters, Inc.
25 .
MR. DIGNAN: -- isn't it legit -- maybe I disagree yr vn, y+W-
l 55 o f_g I with Mike that "a good lawyer would have the papers ready. " l
(-).
. -2 But I don't think it is-too.much to ask you as the represen - i t
I 3 tative of a state to have' checked with the governor, the
[
4 attorney general and everybody else, and say:
S "Look, assuming these clients get a permit, do
.6 you want me to seek a stay or not?"
7 MR. BUTZEL: It's not too much to ask but --
8 . (Laugh ter. )
9 MS. CARON: Decisions aren't easy to come by.
10 MR. DIGNAN: Well, but what I am saying is I don't l
11 have very much sympathy for the governor who can't give you 12 that decision. Because let's fac,e it, it is a politic &l j 13 ' decision from, his point of view anyway. -
14 I mean, the day a governor really'makes this decision i
15 on the basis:of safety, I would like to be there, because it !
l 16 will be a'first. l 17 And so it is a political decision, basically --
18 MS. CARON: He doesn't have the record to do that. ;
19 MR. DIGNAN: Yes. And I don't see any reason why
-20 he can't make it in advance for you, and say, "Look, if they
.21 get get a permit, I want you to get --
l
() 22 MS 'CARON: Well, I wasn't talking about my legal
'23 difficulties in terms of six months. I was just saying that O. - 24 'looking at the years that have gone by on some of these things hFeder:t Reporters, Inc.
25 and th'e' costs.of the design changes and what not, it might be L
l l
56 1 'iess costly even if it took six months. I was speaking in terms j 2 of the costs.
l MR. BUTZEL We are arguing about something else
.(]) 3 4 there. We are talking about immediate effectiveness that is the 5 guts of it, which we haven't even, I mean, we.are not dealing.
6 with --
7 MR. CHO: Before we get into the question, if we 8 are, of how much, what should X be, let me ask maybe Jim 9 whether he feels from a personal standpoint the proposition 10 that was suggested by Tom as amended by Ivan, seems to be a 11 good one? If you have problems with it, and'if so, specifically 12 in what respect?
- 13 MR. TOURTELLOTTE
- I don't agree. I think, going 14 back to an item that Tom mentioned earlier, and that is there 15 are so many' delays built in the process, it is just repre-16 hensible to me to even think about. building another delay, 17 even'for a few days.'
18 MR. SMITH: Jim, didn't you agree already, didn't 19 .you,.wasn't it your position to begin with that that delay 20 already exists, or the potential for that delay .already exists -l 21 under the rules?
("/
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i 22 MR. TOURTELLOTTE: Well, I think that it -- under
-)
l l.
! 23 the rules, for good cause shown, then cer+> 4.nly, the opportunity j
(( 24 hce Fedtrci Reporters, Inc.
exists to take exception or to file a request for a stay.
25 And consequently, I don't really see, I don't see that --
. . . - .a
57 1 (Interference. by noise from air conditioner.)
O 2 MR. TOURTELLOTTE: Putting a delay in the immediate 3 effectiveness rule and making it effective somewhere down the 4 line is going to substantially anybody's, or improve anybody's 5 rights.
6 Moreover, as I also said, I think that everybody, 7 the person who is seeking the stay has had an opportunity, a 8 rather extensive opportunity.up to that tine to demonstrate i
9 that they are at, to proceed ot. the merits , that they warrant -I 10 and they have substantially failed at that point.
11 And it seems to me that that is a consequence we 12 are going to have'to know they are going to live with when 13 they prepare their case and go to hearin .
14 MR. SMITH: Assuming you are correct, that the power 15 now exists in the presiding officer to delay, to defer the 16 effectiveness of the decision, do you agree that that could 17 remain, that policy should continue?
18 MR. TOURTELLOTTE: . Well, again, I think that we are l 19 talking about the. abstract concept as to whether the power ;
20 exists or not. Again, I think, probably, again, if an 21 intervenor or someone else, an applicant, was seeking a stay, 22 .and anticipated that the decision may be adverse to their 23 interest, that they could make that known to the chairman of l 24 the licensing board in advance, and they could ask the Oce.Fedtral Reporters, Inc, l
25 chairman of the licensing board for 5 days or 10 days or 15 days
- _ . .. . _ - . . - , _ . _ _ _ _ _ __ _ _ __._.____.___m_.m m
l 58 1 and then-they could by the same token (unintelligible) the
.O- 2 grant part of it or none of it. ;
fs 3 CHR. DIGNAN: You can file with the licensing board 4- along with the proposed findings a motion for the licensing 5 board to stay the initial decision in the event it is adverse 6, to you. Indeed, that was done in Seabrook.
7 If you read the Seabrook opinion in the report,'it l
8 is followed by a second opinion of the licensing board denying ,
9 the stay, which was sought in advance. So that is a possibility' l 10 in that. l l
11 But as I say, keep in mind the licensing board still , ,
12 ds I read the regs, and.I could be wrong, have to go throu,gh 13 the process of analyzing that motion from the same ' point of
~
14 view as 2788.
l 4
15 2788 lets you out of nothing except you are allowed 16 to grant a stay without waiting for the answer, if you think ,
l 17 it is' appropriate. You still have to do the analysis.
I 18 And it is going to be a sloppy motion if it filed 19 in advance or if it is filed quickly. And indeed, the appeal )
i 20 board in Seabrook commented on the fact that they -- they 1
21 decided ALAP 238 (phonetic) , and what they thought was "a 1
( . l l 22 hastily filed motion." i l
23 And then later Perad (phonetic) came out in a
("% !
, %C/ 24 concurring opinion at one point and said, gee, I don't know
- Ace Federti Reporters, Inc.
25 if I would have gone the same way I did if I had had a decent t ;
I h
59 i
rs I motion in front of me, (m) 1 2 MR. CHO: Tom, you mentioned, if I understood you l
(~)
N_/
correctly earlier, that you could defend the present rule, 1
4 the immediate effectiveness rule, and the stay rule. How would l l
5 you go about doing that?
I 6 MR. DIGNAN: Okay. Because I think basically I 7 think the cynics among us are right, I think the rule gives 8 virtually no possibility for a stay, at least on the site itself.
9 And I think that is good, and I think it is good for an entirely I l
10 different reason.
11 If you get to the point where you have a construction )
12 permit -- there may be a rare case to the contrary in this, but
,O
- i
\_) 13 let's assume the usual case:
I 14 My client, the applicant, owns the site. And for )
15 the life of me, I don't understand why anybody should prevent 16 him from doing anything he wants on his own land. I mean, you 17 know, this is beyond me.
18 This is why I say, given the present system, I have 19 got to defend the stay rule. Because the present system has
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20 this idiotic idea that a gov'ernment agency' ought to prevent 21 somebody from doing what they please in their own land.
22 Now, I have often asxed rhetorically of people at !
23 the Commission, what are you going at the time I get a client O,
N/ 24 who goes down to the state agency, it is a full permit for
) Ace Federal Reporters, Inc.
25 a coal-fired plant, levels it, cleans it up, excavates it, puts
60 1 in the road, puts in the laydown area, and then comes to you O 2 guys and say, "Now, look, we are going to give you a year to 3 give us a nuclear permit, and I want to build a coal-fired 4 plant here, and I don't want to hear any nonsense about what I 5 can and can't do on'this site, because it is all done.
6 The transmission is all built, we have cut the 7 corridors, we have taken the land. And all we want you to do ;
8 is pass on the safety of this thing. And if you have got some 9 environmental foolishness you want to tack on, that's okay, 10 too."
11 Now, I have never had a satisfactory explanation 12 as to why the Commission can doianything about that, other than
\- 13 somebody saying, "Well, politically, what we do is send your -
14 application back because you weren't in good faith."
15 Of course I am in good faith. I am up there, I have 16 got a coal permit all ready to go. I would rather build nuclear ,
17 what's wrong with it?
18 But the Commission has got itself into the business 19 of governing what a private utility does with land owned by it.
20 Keep in mind about Seabrook: If Seabrook's appli- j i
21 cation was denied, there was absolutely to prevent that company D- % 22 from paving it over and making a parking lot the next day. !
l 23 Zoning, local zoning controls what you do with your land, not 24 the NRC. l Am-FMw:J Reporters, inc. !
25 Keep in mind also, that whatever you may have read A
s 1'
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61 1 .in the paper to the: contrary, the Seabrook plant in on the site j
~O 2 lof the town dump. This was not a sylvan wilderness up there. j 3 And I say in there day after day, litigating in
.o 4 1 ont'of.the appeal board, listening to the appeal board go 5 .over whether there was going to be some esthetic effect of ;
6 this, that and the other thing on land owned by.my client.
7 And if they threw us out and said, "No more permit," ,
8 the client was perfectly free to make it into the next camp :
9 beach Bijou Theater.
10 But within the system, I think is impossible to get 11 with a 'rery exceptions. The one I thought was probably correctly r
12 given was the one'where-the dunes area was -- it was in 13' connection with the - 'the one in~'-- Daley (phonetic). . .
i 14 -
The appeal board- saw an effect off site that had 15 to be controlled.
16 But keep in mind when the local people hand over 17 that zoning permit, they have given that land up to heavy 18 industry at that point, and you know, a lot of people said we 19 should have put Seabrook on the beach anyway and called it 20 urban renewal on Hampton Beach (phonetic). ,
21 I.have never understood'why we were litigating.
(k 22 So I think what we ought to do is'make the stay 23 a1 fair shot, but limit the things that can be stayed.
() 24
@cefederti Reporters, Inc.
In other words, if an intervenor comes in and says, 25 " Keep them.from putting in any transmission lines because that
62 j,s l' is going to go of f- the site 'and it is , the takings (phonetic)
~ (a
- 2 is going to damage property that is not now theirs, that is the j kind of stay motion-I can understand'the Commission worrying
~3 4 .about.
5 But if-the applicant.is sitting.there with the land-6 in hand, why should we have a stay?
7 MR. MC GARRY: Tom, I agree. I have right here in' l t
8 my note, it is his land --
9 MR. CHO: A1, do you have any comments?
! 10 MR. .BUTZEL: Well, this is so far out of line with l
I 11 my way of thinking that. I don't think it even serves me any I
- 12 .particular purpose to comment.
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13 For the record, I should say that zoning laws vary 14 among towns and so forth. The public utility company has a
! 15 certain authority under the public utility code to build a 16 parking lot or build another -- ,
17 MR. DIGNAN:- They could sell it --
18 MR. BUTZEL: They could do anything they want, but 19 that's not the . reason --
20 That's why the whole argument to me is aosurd, it l
l 21 doesn 't have any reality. The fact is, that they are coming l O 22 to an agency and asking them for permission to do a particular i 23 kind of action; the law requires them to get permission from 24 .daat particular agency.
Neo Feder:1 Reporters, Inc.
25 And your public utility company in New Hamshire can I
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63 !
r~g 1 probably just go build a coal plant in New Hampshire. In New
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2 York they will have to come and go through the same sort of i 3 starting procedures that they would do -- and they wouldn't
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4 be able in-New York to touch the site until they get the full -
5 authorization of that board.
6 MR. DIGNAN: You have got the authorization when 1 i I 7 I am doing this. Keep that in mind. j 1
8 Before you'get too emotion here, we are positing,-
l 9 as he points out, that I have been through a year --
10 MR. B'TZEL:
U Don't posit a situation that has no 11 reality is the whole point. And then you set up the straw man 12 and knock it down, and say that is why we ought to m,aintain the
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13 stay rule. , i 14 I won't get emotional. I will simply say, if you 15 are coming for a particular permit --
16 MR. DIGNAN: Which I have got. ,
l 17 liR. BUTZEL: Which you have got. l 18 MR. DIGNAN: Yes. And now I want to use it.
19 MR. BUTZEL: You have got a permit to construct a
'20 plant.
, 21 MR. DIGNAN: Right. And I want to use it.
l'
) 22 MR. BUTZEL: From a licensing board.
23 MR. DIGNAN: Correct.
- f If 24 MR. BUTZEL
- And you have got it in your terms.
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l 25 you are talking abou't the immediate effectiveness, someone is I
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64 1 questioning whether you have got it to the point that you should
.O 2 be able.to start construction. When you talk about stay rules, 3 in kind, someone is questioning whether you have got it to the 4 Point that you ought to be able to start construction or ,
5 whether there is going to be a deferral on it.
6; And it doesn't have the slightest bit to do with 7 the fact that.you own the land or whatever it may be. You are 8 getting your authorization from that agency. That is what you 9 are talking'about.
10 MR. DIGNAN: What I said was, I thought that the 11 stay rule is the one that permitted the agency to stay at your I
12 request thin gs that would go on off site. But I couldn't 13 understand any moral or policy question that assuming -- Jim 14 says it better than I do --
15 I have been through four years or three years or i
16 two years of litigation, and it has been decided I should have 17 this permit. At that point it is a matter of policy, since I 18 own the land and, as I say, I can either turn it into a parking 19 lot myself or sell it to somebody who wants to:
20 Why should any agency or anybody else care if I 21 go in there and knsak the trees down -- they may care -- why ,
A V 22 .should they have anything to say about whether on my private 23 property I cut the trees down unless the local zoning board, O'
V 24 that the citizens of the community are concerned about?
i Ace Federd Reporters, Inc.
25 MR. BUTZEL: To me, that is a non sequitur. Because j
._ .._ _. _ _ _ . . _ _ _ _ . _ _ _ _ _ _ . _ . _ . . _ _ _ . . _ . . _ _ _ _ . _ _ _ . _ _ _ _ _ _ . . _ _ . ~
i L 65 1 you can ask that question before you ever get a license. You i 2 argument is exactly the same before you go in and start. 4
{) 3 Well, then we are not talking about immediate I
4 effectiveness, and we are not talking about a stay. All'you 5 are talking about is why'a utility ought to have to come to 6 the NRC before it can make use of its property for those things ;
I 7 which don' t require it to get a permit. I 1
i 8 MR. DIGNAN: Don't put me under admission to that, i l
9 I don't think we do have to come -- I am just waiting for a 10 client with enough guts to go the other way.
! 11 (Laughter.)
12 MR. DIGNAN: Keep in mind the question I had put c) 13 to me. You asked me how I'could defend this rule, and I 14 posited it at the front that I thought I would defend it as 15 long as we have got the system we have.
16 And I am saying that my defense of the rule is 17 basically since we have got this system, it doesn't seem to me ,
l l 18 that the stay ought to be easy.to get, and the more difficult I 19 we can make it to get, the happier I am to make it that way.
21 MS. CARON: I would just like to go back to a little
/'T j 1
\'l 22 piece by Harold Green (phonetic) called a nuclear power licen- (
23 sing (unintelligible).which I go along with (phonetic).
I s) 24 Basically, one of our problems here, as in all of
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25 these proceedings, is that underlying a lot of the procedural
. . . . . - . - . . . . .. .. . - ..- .. . . . . . . - . . - . . - - . . - . . = - _ -
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1 discussions and what not are the policy questions that don't 2 Lbelong in this forum at all.
.r~ 3 And I think that probably some of Jim's feelings 4 are based on the fact that he thinks are objected to a lot of ,
l.
5 delays.for delay's sake, which really was based on policy 6 issues. (phonetic) , which maybe belong to the Congress or whatever.
l 7 Still, Lit seems to me that as long as you are going 8 to purport to give an opportunity for a stay, it ought to be 9 genuine and. (inaudible).
10 MR. DIGNAN: Let me ask you this:
11 . How long would you and Mr. Butzel maintain this 12 point that because my uti'lity is coming .for a permit, you, should 7-13 have a right to stay? Because every logical argument you make l[I .
14 for either time or ease of getting the stay to the appeal 15 board -- and I tried puzzling this out for a couple of days 16 -- could be equally made --
17 Certainly his argument about impugning the appellate, "
18 process can be made at every level. In other words, the same 19; logical argument can be made toease up the stay requirements l
l 20 while the appeal board goes through their act, ease them up !
l 21 for the Commission to go through its act, ease them up for the l'*)
V court of appeals to go through its act, and ease them up even l
22 l 23 more and say, "No permit until the Supreme Court has finally 24 signed off."
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25 You can't draw a logical distinction, especially if 4
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f 67 i you are going down to some (unintelligible) ' appellate process.
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2 So if you are going to do that, then let me give ;
.. f 3 you another proposal for the proponent's side.
i 4 . Why don't we do what the court of appeals does in l 5 the real world in the circuit? In my circuit, you would come j l
6 in and you want to halt a construction job of this nature, you* i l
7 Put up a bond, and the bond would be -the amount of money it 8 is going to cost the company to sit there.
9 Now, in the case of Seabrook, that is about $16 l
10 million a month.
! 1 11 Now, every time I suggest that, intervenors go 12 absolutely bonkers and say, "Why, we are just a poor .little l 13 T ' 511c interest group. hc_may'io funde'd by tge mkefeller 14 Foundation --
l <
l 15 (End of Tape 1.) !
1 T2S1 16 -- but we don't have the money to post bonds and 17 all that sort of thing." !
18 And then we are off on a real philosophical dif-19 ference. Of course, one argument is, you know, the dollar l 20 isn't.a bad distributor of where society wants its wealth
! 21 spent, and if people can't get the money to post a bond to
' ( )-
22 stop a nuclear power plant, then that is an indication that i-
!.' -23 most people don' t want it stopped. I don't know.
D jkl 24 But if you want to do -- which is the biggest 2 Ace FedIrct Reporters. Inc.
25 mistake we have made, and this is (unintelligible) -- is to
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I 1 force the trial practice, common law cases upon licensing 1 2 nuclear power plants.
I 3 This is what we have done, and it has been our big 1(} ;
4 mistake, to take it all away. If you want a stay, put up a 5 .$100 million bond.
6 (End of interference from air conditioner.)
l i 7 MR. SMITH: Tom, don't forget that one of the 8 purposes of this panel considering the stays is to consider 1
l 9 an alternative to changing ~the immediate effectiveness or i
10 changing' the effectiveness from hearing to appeal board. I 1
l 11 And unless the stay procedure is workable and has i
12 some real meaning, then.it is not going to-be an alternative '
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13 to the other two considerations.
14 MR. DIGNAN: I suppose you are right.
15 And so if we are going to take as a given that we 1'
16 keep the sys tem --
J L
17 MR. SMITH: That's right. l l
i 18 MR. DIGNAN: -- stay with the one we have got. '
1 19 MR. SMITH: That's right. ;
20 MR. DIGNAN: All right.
i i I '
MR. SMITH:
21 Well, that's wrona.
( 22 (Laughter.)
c
, 23 MR. SMITH: But we have to postulate that that is 24 going to be the case, and make it work as well as we can.
f Aca Fs:$er:I Reporters, Inc.
25 MS. CARON: You can't afford to do -- j l
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- .. .. . . - ~ - . _ . . . . . . - - . . . . . - . ~ . . . ~- - . . . .
69 1 fir. DIGNAN: Well, how about a bond? Just like in O_ l 2 a court of appeals?
l
. /~T 3 .MR.. SMITH: I just don't think that that is a -- in s l \./
4 my experience, I don't think that that is practical at all.
5 I'have never had an intervenor --
i 61 MR. DIGNAN: 'Well, I have seen a. lot of appellate 7 courts.say the environmentalists on our state side, and a few 8 in the.First Circuit, they said, "Okay, you want this stay, we j 9 will give it to you, and here is what the bond is."
10 " Nope, we don' t want it that bad, Judge. "
II MS. CARON: It really isn't a good' indicator, Tom,
. 12 of - I mean, people pay for.their lights because they feel l
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r 13 'theyhave'tohavelifhtstoread'byandwhatnot. But they 1 14 . don't necessarily see the same effectiveness. In addition, it 15' would take a lot of education to get to that point as far as 16 assessing them the same rates that the utility does.
17 I have had an additional problem, of course, where l l
18 the state, being left with a deficit, staff was cut quite 19 severely, at the point where I had to go into a further process i
20 in a' seismic matter, of having no seismologist in the state at '
21 all. !
) 22 I personally raised $11,000 to hire a witness. I 23 Now, you can't do this every day of the week.
L O 24'
)ce Federal Reporters, ?nc.
MR. DIGNAN: I agree you can't. But at the same 25 time, I suppose -- you know, and let me just jump into the
70 p, 1 utility executive's picture.
A 2 See, I am the worst kind of utility lawyer. My
'~') 3 father was an utility executive. He sat in ora of those uj !
4 Conar (phonetic) offices and made these decisions.
5 And as he used to say to me, "For God's sake, you 6' sit there with everybody shooting at you. "
7 He has got one function that is clearly the law, 8 and that is to supply power every time the switch is pulled.
9 Now, if you Jan't raise the money to find a 10 seismologist to stop his plant, so what there is a problem.
11 Maybe nobody but you was worried about it.
12 and if y'ou can't get the governor to budget the
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13 funds for you, then he is not really worried about it.
14 Now, if anybody is really worried that that plant l 15 is going to be blown apart at the first tremor on the East 16 Coast, there ought to be money flowing from the hills.
17 Now, you say the people are ignorant. Eat, okay, 18 but the utility industry will say, "Well, maybe some of your 19 people are pretty ignorant, too."
20 An'd so ~
t hat is my problem. You can go around and
! 21 around t this, but you still come back to the same thing. ,
( ) {
22 The system is lousy; I agree on that. !
23 MR. SMITH: Utilities cannot, on one hand, point
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24 to the state procedures and say those state procedures give r,-Fed;ral Reporters, Inc.
25 you all of the guarantees you need, and then on the other hand
71 1 go and say-because of'the state procedures, do not change the 2 'immedia'te effectiveness rule.-
3 MR. DIGNAN: I don't think I was saying that, was I?
)- ;
4 MR. SMITH: Well, you are putting conditions upon j l
5 state procedures which would pretty well nullify them.
6 MR. DIGNAN: What do you mean? I didn't know I ;
7 was putting any conditions -- maybe I was misunderstanding' l 8 something. I didn't think I did anything. l 5
9 MR. SMITH: I thought I heard you saying --
I 10 MR. CHO: Suggesting a. bond. i I
11 MR. DIGNAN: By suggesting a bond? i 12 -
MR. SMITH! Yes.- -
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- 1 13 MR. DIGNAN: I'm sorry, you said stay procedures, j 14 as opposed to state procedures. I'm sorry, I misheard you. i 15 I don't understand why I can't do that. ; ,
i 16 MR. SMITH: Because I don't think that you are going j 17 to get away with it.
18 MR. DIGNAN: I would agree with that. l l l
19 (Laughter.) l I
'20 MR. SMITH: I don' t think that the utilities are 21 going to be able to say, " Don't change-immediate effectiteness i l !' ;
22 from the hearing boards; you don't have to. My heavens, look ;
l 23 at the beautiful stay procedures that the intervenors have." i
-O 24 And then go over in that forum and say, "Aha, we Sce-Federst Reporters, Inc.
25 don't have such good stay procedures.' You can't have it both ,
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I l ?J 72 11 ways.
() 2 MR. DIGNAN: No, I wasn't trying to have it both. ways.
l 3 I was giving in. I was saying, give them their fair shot.
4 MR. SMITH: Yes, but your fair shot -- .
5 MR.'DIGNAN: Now, wait a minute. Give them their ,
i
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l 6 fair shot. And in 20 days they cer *, one of three things:
7 They can say the hec) i t' it; they can file a good 8 motion and win it clean; or they rile motion which the appeal e r 9 board says, "Well, probably not, but if you want to post a i
( 10 bond, we will give it=to you."
l 11 Because that is what the courts of appeals do. If
~12 they think you have a clean winner, they ' don't hit you with a
, j 1 ~- -
13 bond. When they hit you with a bond, is where you don't have 14 such a lousy one that they throw it out, but you don't have a 15 good enough one so that they are sure you are going to win. l l 16 And it makes you think twice.
17 And keep in mind what he said. The rate payers ;
18 finally pay for this case. ;
19 MR. TOURTELLOTTE: What you are talking about there 20 is the general legal principle that with.!every right you have L
i 21 some corresponding responsibility. ,
j
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22 MR. DIGNAN: Right. ;
- . 23 MR. TOURTELLOTTE
- And the suggested approach without I
4 O 24 the bond in there, you have a situation where someone may take '
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- a m-pai n i n po m n, w . l 25 advantage of the rights without any responsibilities at all, or I l
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73 i
1 look at it another way, they get all the benefits and no burdend.
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(-) 2 MR. DIGNAN: Right.
l j
MR. CHO: Maybe we ought to take a break before too
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gs 3 4 many minutes go by, but before we do, let me raise several 5 specific questions just to be sure that we cover the agenda, 6 at least with respect to the stay question.
I 7 The first question is this:
1 8 Given the present immediate effectiveness rule, 9 and looking toward possible alternatives on a stay provision, 10 the first question is, is altering the burden of proof a 11 realistic option here? l 12 MR. SMITH: You are not shifting'it, you are r^s l k-) 13 changing the degree of it?
14 MR. CHO: Well, first shifting it from, say, the 15 moving party here to the applicant, I guess.
16 MR. MC GARRY: No, I disagree with that.
17 First of all, No. 1, it could be the applicant who l 18 is seeking a stay, and people would scream if the intervenors 19 then had the burden of proof. I think you had better stick 20 with the law . The law is, the moving party has the burden.
21 MR. CHO: Is that the general consensus here? 4 i /~S l ks 22 MR. BUTZEL: No, but only because it is assumes the i 23 immediate effectiveness rule is assumed. I can't -- it doesn't (g,/ 24 fe<>l this way, say, okay, you are going to assume the immediate peo-Federal Reporters, Inc.
l 25 et 'veness rule, I have been therefore forced to assume that.
l l
l 74
, s., 1 Then should everything remain the same in terms of the law? i ,
V
.2 And my response to that is no, it shouldn't remain
/~'T 3 the same in terms of the law, because you are not following j kJ ,
4 the law in the first instance by having immediate effectiveness, i
5 That is to say, you are going ahead on an 4.nitial decision, 6 not on a final decision, i 1
7 MR. DIGNAN: Why do you think that isn't following 8 the law? The immediate effectivencss rule of the Commission l
9 has been passed on by at least two courts of appeal and found I 1
10 okay. ;
1 11 MR. BUTZEL: No, no, when I say the law -- I l
12
- MR. DIGNAN: What you want the law to be.
f' .
(')/ 13 MR. BUTZEL: No, not necessarily what I want the l 1
1 14 law to be. Okay, what I think it should be. )
i l-15 My view is that the decision of an agency becomes l l
16 l the agency's decision when it is the agency's final decision. !
l 17 And at that point I agree with that burden. I may not like it, 18 as is often the case when out of an agency with a final decision 19 and don't go and get a stay because I am terribly certain I 20 am not going to be able to meet the' burden, and if I were able I I
21 i. to meet even the preliminary burden I would have to post a bond.
l I I L ') 22 That is the way I have got to live with it, because l 23 I moved out of the agency, it has made its final decision and
("^~1 : }
k/ 24 into the courts. So your analogy, let's do it like the courts, j 4&FM:rO Reporters, Inc. j 25 my response to that is yes, when we get to the courts, that is 1 l
i i
1 75 l
1 I the way it should be done.
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j 2, But we are not in the courts here. We are still in !
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T 3 the agency. So that being the case, in the agency, we have l i
4 an initial decision that has become immediately effective. j l
l 5 Now I-am looking for an alternative which I think would give 6' me some kind of protection that would meet what I Selieve the 7 law should be, or what I believe the process should be. I 8 And so I can't go along and say I agree that the 9 burden ought to be lef t -- even though in terms of the legal l 10 concept, I believe that. I believe that it is senseless to Il move the burden ovei onto whoever the nonappellant is.
12 But I would really be saying is, the presumption l
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13 should have been shifted from the outset, and thare is no ;
14 ir.nediate effectiveness unless it is shown why the order ought 15 to become effective immediately, which would have the effect i
16 of allowing an applicant or whoever it was it was to come in l 17 and make their case, but they would have the burden.
l 18 I don't know if I was clear. I i
19 MR. DIGNAN: Yes, but what is clear is that you !
l 20 assuming that it is always going to be you that is seeking the ;
t i
21 stay, because I would be very interested in you and your '
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22 client's point of view, let us say, on a show cause order, '
I l 23 where the Staff has successfully got a licensing board to I
. r-)s A. - 24 shut a reactor down and the applicant went in there and said, i
i Ace #ederal Reporters, Inc.
25 "You have got the burden of proof, baby, I want a stay."
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i 1 MR. SMITH: Yes, but those standards, those standards l 773 u
. 2 are fairly different. ;
3' 'MR. DIGNAN: No. All stays are the same. 2788.
{};
4 MR. SMITH:
Well, the standard for suspending a l i
5 license on remand is much more relaxed than the one you are I l
6 referring to. j 7 MR. DIGNAN: .A license on' remand, yes. But on a 8 'show cause order, you don't go along with the Staff. The ,
9 Staff causes the show cause order to issue, and at that point 10' .it goes before a licensing board.
I 11 Staff, if it finds immediate health and safety l 12 problems, can shut you down right away. , ~
And I suppose to b'e
(:) 13 fair', we would then put the burden of proof on the Staff if
~
14 the applicant chose to contest it. And I don't think the i
15 Staff or you would like that. j i
16 MR. BUTZEL: You might be right. I don't know i
17 enough about that situation.
l 18 MR. DIGNAN: So I think shifting that burden of l 19 proof is a double-edged sword. And it is an easy horse to l 20 ride until you start depositing yourself in the plaintiff's 21 position.
( MR. BUTZEL: You see, my acquaintance, and I am 22 1
23 probably way off on this, but my familiarity with shutting
-('). 24 down a' plant, is that they come out of Commission orders.
i A& Fee cl Reportersiinc.
I 25 MR. DIGNAN: They come out of, usually, Director of l'
'I-e 77 1 Public Relations.
'L ). ;
2 10R. MC GARRY: Well, they can come out -- actually 3 we won't get into that, but I can tell you firsthand, that that
}
4 is a mixed bag, because the orders come'from Harold Denton l 1
5 and they come from Robert Reed, and they sometimes come from .
l 6 Joe Haley (phone tic) . ]
'7 MR. BUTZEL: And where do you go when that order
'8 comes down?
9 MR. MC GARRY: Where does the utility go?
10 MR. DIGNAN: You go out and try to figure out how
'll to fix it, if you have got any intelligence. ;
l 12 MR. BUTZEL: Well, all right.
13 MR. MC GARRY: That's another good question. I'had 14 two sets of papers. I was either going to Clement Hainesworth 15 down in Greenville, South Carolina. Or I had another set of i
16 papers for the Western District of North Carolina. I 17 MR. BUTZEL: I don't think a court will throw you 18 out on the grounds that you haven't exhausted your administra-19 tive. remedies. I think they would throw us out on a con-
'20 struction license.
l 21 I think they would say if you were closed down and "O '22 there were.no findings and so on.and so forth, you didn't have i
23 to go' back to the Commission and wait for three months while l l
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24 your plant was closed down before you could have any judicial (Sce-Federal Reporters, Inc.
25 relief.
l
l 78 1 (Simultaneous . conversation. )
.O 2 MR.'MC GARRY: I had a whole section on that.
3 MR. DIGNAN: You aren't going to get judicial relief 4 anyway.
5 MR. BUTZEL: I know, I know. But I can still get l
6 worried about.
l 7 (Laughter.) i 8 MR. CHO: Let me raise a second question:
9 Again, given the existing immediate effectiveness 10 rule, is this a workable alternative, that a stay may be i
11 granted whenever the appeal board determines that there is l 12 'aul important policy legal issue? )
.O 13 MR. DIGNAN: Thes'tay will -- I don't unders,tand i 1
14 that question,' because the stay will be granted if the appeal 15 board determines that now.
I 16 . The appeal board has made it clear that you don't L 17 have to win on all four tests. They have adopted the Second I 18 Circuit's viewpoint, the so-called Benner's (phonetic) Watch t
19 case viewpoint, that you throw all these things up and balance j i i
l 20 them.
21 If the appeal board is satisfied under the present
)
, 22 regulations that it is an important policy question, it can !
23 certify immediately if it wants to to the Commission and stay.
1,. .
k 24 I don't understand why that question is in there.
.Aes Fedtral Reporters, Inc.
25 They can do it now..
t-i
L i l
1 l 79 i
l 1 MR. CHO: But I thought the present rules went beyonc, O;
2 that, that not only an important question must_be present, but
- 3 at least there is some element of irreparable harm --
t 4 MR. DIGNAN: If they determine there is substantial l
'S likelihood on-the merits, for example, you don't need much L
6 irreparable harm.
7 MR. CHO: Well, yes, but again, that is the question 8 of likelihood of prevailing on the merits is not necessarily 9 the same as an important policy question. ;
i 1
10 MR. DIGNAN: If think if you decide there exists l 11 an important policy question, I don't see how -- you certainly
- 12 can't' say it is unlikely they are goi.ng to prevail on the ,
13 merits, and it is not much-of a step to say likely to p'revail.
14 And assuming that'it is a construction permit ca5e, 15 and assuming the rules remain in ef fect that he and three 16 friends from New York can intervene and decide they are pro-17 tecting the environment at the Seabrook site in New Hampshire, i l
18 and_it is irreparable harm when we cut trees down on our land, i 19 you are home free. You have got the stay. You have got 20 irreparable harm, and you have got a likelihood of winning on 21 the merits.
22 MR. TOURTELLOTTE: Isn't it also an important policy l.
L 23 question, isn' t that somewhat at least one of the things that 24 might' fall'under where lies the public interest in a general Aes Fed 2rd Reporters, Inc.
25 test?
t
- w. , , , , - - - - - , , , ....,-.a.,, ,
- _._ . _ . . . . _ . _ . _ . . _ . _ ~ . _ _ _ _ _ _ _ _ _ . . . _ . _ - . _ _ . . . . . . _ _ . _ _ . . . . . _ _ . . . . . .
I i.
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80 l l
_ 1 MR. DIGNAN: I suppose you could, yes.
%)
2 MR. TOURTELLOTTE: So when you balance your equities, 3 itisgoingtobeintheJobberscaseanywayassortofmodified 4 by the appeal board. 1
-5 MR. MC GARRY: Jim, I don't think just because there 6 is a novel legal issue that should automatically be'the basis I 7 for a stay.
8 MR. BUTZEL: Even I don't.
9 MR. CHO: Well, how about the third question? Is 10 a' stay standard which varies according to the kind of issue 11 ~ involved? For example, environmental versus safety issues?
12 Is this a workable stay standard?
73}
k- l' 3 MR. BUTZtL: I[d'on'tthinkso,no.
14 MR. MC GARRY: Let me just say one thing.
15 I. haven't thought it totally through, but it seems .
I 1
~ 16 to me that the only matter we are talking about here in' l 17 immediate effectiveness, construction permits, is environmental 18 degredation. We are not talking about safety. That comes 19 down two, three, four years down the pike. That's always 20 (unintelligible) as environmental. -
21 MR. TOURTELLOTTE: Well, generally -- ;
l 'Lf'/\ 22 MR. MC GARRY: As I said, I haven't through it all i 23 the way through, but on first thought --
1
/ 24 MR..CHO: Well, Jim, could you give some examples he Federet Reporters, Inc.
25 .other than~ strictly environmental questions?
I
. . j
.. _ _ __. _ . ~...-_ _ _ _ . _ - _ . _ _ _ . _ . - .
t 81 1 MR. BUTZEL: Well, you could have environmental
-([)- '
i 2 questions that pertained to safety, like seismic. l 3 MR. TOURTELLOTTE: Yes, there could be a mixed
)
~
4 ~ question, (a), and you could also ' occasionally -- they f all 5! into a situation where you don't get the environmental issues <
6 first, you get the safety issues, because something happened 7 that screwed up the environmental review.
l 8 MR. MC GARRY: Yes, but you couldn't begin, you )
o can't begin construction until you get the, you can't begin 10 to clear that land unless you get the environmental checkoff.
l 11 MR. TOURTELLOTTE: That's right.
12 MR. MC GARRY: And what I am saying is so once you 13 have got the environmental checkoff, be it a LWA or a CP, then 14 the bulldozers are ready to go, the only thing that is going l 15 to be harmed is the environment.
16 Becauseevenwithseismicissues,you<arenotgoingl l l i 17 to have that trench dug for six months or whatever until you l l l
18 can -- i l-l 19 MR. BUTZEL: That wouldn't be the -- first of all, L l 20 I still think the answer is no. I think the distinction is !
21 very small.that exists, and to the extent that it exists, it ,
1 1"}-
k- - 22 is more confusing-that it would be worth putting in the rules.
23 But you could have a situation where there was a f!
) 24 legitimate seismic question whereby_the immediate effectiveness race Feder:I Reporters, Inc.
25 would result in a commitment of resources that might --
r 4
, ..-m .r.,- -m- , -
82 1 MR. MC GARRY: 'Whether that site was a good site EO. '
2 -because there is a fault that happens.to go through.
l j 3 MR. BUTZEL: And that's.a safety. And you could 4 throw that into'the category and.say, well, at least that we 5 ought'to be more tolerant about. ,
1 6 MR. TOURTELLOTTE: Well, that turns.out to be a 7 ' mixed question. The only problem is it seems'to me, from a 8 practical standpoint, it is even harder to make a case on saying.
9 for safety reasons that it is for environmental reasons.
10 MR: MC GARRY: I would look attit -- maybe I would )
I 11 . amend my statement and'say for sites -- in other words, and ;
4 12 LWA you have to get-the environmental checkoff plus what.we, 13 c'all the " ology" -- seismology,. meteorology,-hydrology. -
14 In other words, those issues that.the Staff now 15 looks at that involve sites to be built. It would seem to me 16 the only things, really, that the stay is looking at.
i 17 I agree with you, though, Al, it gets confusing in l t
I 13 regards to delineating precisely. But that is.my feeling of 19 what we are talking about.
20 MR. SMITH: Of course, you made your decision to 21 limit discussion to construction permits which takes a great l
'I) 22 deal'of excitement away from the discussion, because we don't 23 have any iof those -going on, to speak of. l O 24 But certianly, if we were talking about operational lSceLN/ FedIrel Reporters;lnc.
25 ' licenses, which we have a lot of those and are going. to be
83 )
l 1 having more, then certainly that would be an important issue.
O 2 And I really do think we ought to consider rS 3 operational licenses on this.
%I l 4 MR. DIGNAN: I think that that is right, but I 5 don't think that it becomes an important issue for this reason:I 6 If we face honestly what these stays are really all ;
I' l 7 about, the "eal stay motions, instead of euphemistically like 8 lawyers and I -- I am as guilty as anybody about this -- trying ,
1 l 9 to make the system work and sound like it is real -- l 10 What we are really talking about is the person who l
11 wants the plant not to be built or not to operate versus the 12 utility that wants to build it or operate it. There is never
/v .
l_) 13 a fight over an honest intervenor who comes in and says, "Look,'
14 what I am upset about is that the discharge is going to be 15 right here which is where I moor my sailboat."
16 Because the way you solve that is you spend $25,000 17 and move the bloody discharge 20 feet to the right and keep
. 18 him happy and send him home. ;
I 19 MR. TOURTELLOTTE: Or buy a sailboat.
20 MR. DIGNAN: Or buy a sailboat.
21 The fight comes -- leaving states aside for now -- .
- ) 22 the fight comes between those who do not want the plant built i i
23 or do not want it operated and the utility, when you are talking ,
l'%
(-) 24 stays.
7 Ace Federd Reporters, Inc, 25 Because if the fight really is over intake location, l
l .
.. . . _ . . _ . _ . . _ . _ _ _ _ _ . . - . _ _ _ . _ . . . . . . _ _ . _ _ _ . _ _ _ - - ~ _ . _ _ - - ,
84 1- 'let us say,ftunnel intake, you can go to the utility and say, D
v -
- 2 look, will you agree until we get through the appeal board not 3 to start digging a hole out there?
4 And' assuming that the thing is time dependent on L5 that, usually they say, fine, draw a stipulated order. .At 6 least, I would. I mean, why start a fuss over something that t
7 I don't need a fuss over?
8 But.what the fight starts is those who just don't' .i I
9 want the plant started. And they are not going to differ !
l 10 between the' environmental as contrasted with ':he safety issues.
11 In Seabrook, the intervenor who hit hardest for-a stay was somebody whose real issue tha.t got them into the case
. 12 q
O 13 is some' thing that had to do with plant operation, can't 14 possibly be affected by construction, and indeed has absolutely 15 no bearing on construction on site which was started. !
16 This was Sappel (phonetic) originally gets upset 17 about the fishing, which is not going to be affected until the 18 plant operates. Yet they sought stays. Why? Because Sappel 19 doesn't want the plant built, period.
20 So I am saying _ that you can't differ between safety 21 and environmental and safety issues.
t- :
-* . 22 MR. BUTZEL: You would find that quite a few people 1.
l :~ 23 on that would give you a stipulation up there that you can Li ) 24 build it if you promise never to operate it.
' Acs Federal Reporters, Inc.
25 MS. CARON: Oh, sure, j-
85 1 MR. DIGNAN: Sure.
I/l s
2 MR. BUTZEL: Well, (unintelligible) has said that j I
i
("T 3 he doesn't really want it built, he is aware it is only the U
4 operation --
5 (Simultaneous conversation. ) !'
I l
6' MR. DIGNAN: He doensn't want it built or operated.
7 MS. CARON: Well, why would it be more honest for 8 him to let you waste money building it and then keep you from 9 oerating it?
10 MR. DIGNAN: No, you don't understand what I am 11 saying. If it is an honest disagreement and only over a certain 12 thing,,it would make 'enses to talk about making the stay ;
) 13 standards vary according to whether it was envi'ronmental or l l
14 a safety issue. l l
15 ! That is, if somebody honestly their problem was the ,
I i
16 location of the intake, or they really were worried about a l 17 fault, you could carve these issues out. 4 18 What generally happens, though, is that oppos.. tion '
19 ; is created by those who simply don't want the plant built, ;
! l 20 ! and they want to grab on to any method they can to stay it --
1 21 , which is understandable.
22 MS. CARON: I guess I just can't agree with you 23 that that --
24 MR. DIGNAN: I am just speaking to the 6-C. !
Ace Fed;ral Reporters, Inc. ,
I 25 MR. BUTZEL: I think you are projecting from your
.i.
86
- -1 own experience, because I am sure, while I haven't been involved
~
2 in one, that there are going to be a lot of people in 3 operating' licenses right now who are going to come in and say,
)
4 " Licenses have been issued and you didn't deal with this
~
5 generic issue," or whatever-it may be, "and we are really 6 worried that if you start this plant, if you start operating 7 it, there is a safety problem that hasn' t been resolved."
8 And in that context, if we were -- and I don't 9 know why we are not talking about operating licenses either --
10 in that context there might be' justification for giving 11 consideration to whether it was an environmental issue or --
12 MR. MC GARRY': Let me give you a sort of coincidence --
( 13 MR. BUTZEL: Pardon me?
~
14 MR. MC GARRY: We just got a decision in a certain 15 case. I have been deeply involved in oil cases, and me just --
16 you can't talk about current cases, isn't that the prohibition?
17 MR. CHO: That was the understanding.
18 MR. MC GARRY: Can I talk in generalities?
l 19 MR. BUT22L: Sure. I l
i 20 MR. MC GETRY: In generalities, we have got an 21 initial decision, just got it last, got it.
O 22 And yet, the licensing board was troubled by the 23 treatment of generic issues, and stayed the effectiveness of 24 that decision until the generic issues were resolved. And em-Federal Reporters, Inc.
25 that is going to be resolved soon by another supplemental safety
U< l 87 1 evaluation. !
l %s [)
2 MR. BUTZEL: Seems to me that in that context --
- 3 you know, environmental issues happen to be most construction- l l
4 related issues. If you haven't resolved'your environmental i
l 5 problems by-the time you are at the construction period --
6; MR. MC.GARRY: I feel you shouldn't even be talking 7 about.the environment at the OL stage. I mean, if you talk l
8 about it, thr t just shot (phonetic) the CP stage, because 9 then you are going to have -- except for the operational --
10 - there are the killing of the fish, alleged killing of fish or l
11 what-not.
. 12 MR.'BUTZEL: But that should be discussed at the O
~
13 construction stage, too.
)
14 MR. MC GARRY: Exactly. And then when you get to 15 the - OL stage -- now we are. getting onto philosophy -- but that 16 is when you start talking about the safety -- you talk about 17 - that also at the CP stage, but --
18 MR. TOURTELLOTTE: Well, it turns out that practically 19 speaking the operating license, that is probably one of the big 20 - things that distinguishes construction permit proceedings from 21 ' operating license proceedings, is that the construction i -22 proceedings, the big thing is the environment. At the operating 1
23 license the big thing is safety, and yot get a shade of safety
[Ace.Federst
( )- Reporters, Inc.
24 in the first construction proceeding and only a shade of the 25 - environment in the operating proceed 1.g -- at least, that has 4 '
- -' w r- -
. - . - . - - - _. _ . - . - _. - . - --. . . - - - - _ - . ~ . . . - _ - - . . - -
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88 l
1 been the way'it has been.
! t L ( )-
L 2
g MR. CHO: Is this a good time for a braak, about ! l i
3i 10. minutes? Why don't we do that. Why don't we take about L$ 1 -
! t 4 10 minutes. l i l
[ l .!
5, (Brief recess.)
l I 6' MR. CHC: Well, shall we resume our discuss.'.on? !
I
\f 7 We might move on to the second general topic, and j
! 8 assuming we get through with that, we can expand our discussioni l
9 to cover other areas as we feel may be necessary. :
i !
l l 10 1 As we mentioned earlier, there is a relationship, l i ,
I l 11 I think, between the immediate effectiveness rule and certain l ,
i 12 -appellate procedures which may exist or are instituted. !
t 13 For example, is it desirable to allow interlocutory" 14 type of appeals or a certain types of issues such as siting? l 15 Does anybody have a comment they might want to make i
16 to open up the discussion? i +
17 MR. DIGNAN: I didn't understand the question, because 18 unless somebody goes for a LWA, which is appealable, how are
[
l l 19 you going to have an interlocutory appeal of any kind on siting, i
20 , because the licensing board is not going to say the site is 21 l okay until. they issue either an LWA initial decision or a final' ;
22 initial decision, depending.upon whether the applicant sought
- I j' 23 an LWA, at which time you have got a right of appeal.
j 7"))
4 -( . Siting isn't going to be resolved before the initial AwFewal Reoonm, Inc, 24 [ , ,
25 decision is pretty much done. You can already appeal an l i
a r-%.- - - - ,,,,# -- , -- ,, ,-ey .
89 environment only initial' decision, and you can appeal an LWA l 1 ,
O' 2 decision. What kind of interlocutory period are you going to 1
3i take? l 0- .I
- 4. MR. CHO: Well, are there things that come before l
5 LWAs issued, for example, that might be feasible for separate ;
l-6 ' review? I 7 MR. DIGNAN: It is. You have got a right to an I
8 appeal from an LWA.
I 9 MR. CHO: No, I am saying before you reach that stage.
10 ! Are there things that can be separated and reviewed separately ,
t 11 while the process still goes on? l l
12 MR. DIGNAN: Well, the licensing board is not going.l -
13 to have made a ' ruling on the siting before it issues its 14 decision, usually, is it?
15 MR. BUTZEL: Maybe the question is, is there anything 1
16 .that could be cut out and made a. separate subject of -- you l 17 know, like a severed issue that was dealt with initially and 18 then go on. . :
I 19 MR. SMITH: That's like D. Except that D is not 20 is not in construction. Several decisions on each issue, taken!
21 as'you can recite them, and then -- well, itwouldn'tbeinter-l
(' .
b) 22 ]
l locutory.
i
-l 23: MR. BUTZEL: Let me state my understanding based on l TO. ' 24 my o n 11mitee experience.
AwFewat Rmorters, inc.
.25 An applicant prer,ents his case and it is an .a i
li i
- -- - - ~ . - . . _~. , . , - - , , .. ,
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l 90 I '
1 environmental case, you know. And then we cross-examine him l fs 1 l I
- (") 2 and we present our case, and they cross-examine us, and the -
-)
\J 3; Staff.comes in and presents its case, and then we file briefs >
)
\
\
4 and it goes before the licensing board and eventually a decision I I l 5 comes down. l 6
l Now, that is the first appealable document at the .
! 1 I .
7 Present time. I can think of a couple situations that don' t j 8 have anything to do with particular =ubj,ct matter areas but i 9l there might be certain kinds of issues thac get raised on motion 1, : i 10 ' more akin to that standard that everyone agreed, important l 11 policy questions and the like, that we are talking about in 12 connection with stay, ,,on which the licensing board may have
/' "
I k-)N 13 to make a decision before it issues its final recommehded 14 decision. I I
15 Now, maybe we should consider whether some of those 16 ,, should be more easily appealable on an interlocutory basis, u
17 rather than having to await the final decision. And Seabrook 18 would be an example of thate perhaps, where you have, you know, 19 i the licensing board taking one position which is later changed i
1 20 l by or modified by the appeal board.
I 21 And perhaps if that issue had been focused early
/~ h k%/ 22 l and brought up to the appeal board early it would have helped t U l 1 i 23 i everyone. ;
I l( ,-)~ 24 i I had one I remember in Shoreham when we were dealing
( AcsJzsrel Reoorters, Inc.
with, it was in the midst of the S-3 rule, effectively, you know, 25 l t
i
91 l
- I l
1 the fuel cycle questions. Should the fuel cycle questions be ,
h- 2 i dealt with in the licensing proceeding or not? And that could l
<s 2 have gone up to the appeal board earlier.
( i ;
s.e , :,
I 4 I find it difficult to understand, and I think this j i
5 is Tom's point, too, how you separate out any particular issue,'
i i 6
1 i
howyouwoulddefineanyparticularissueandchangetheformat; 7 I have just described and say, okay, here are five issues which.
8l everyone agrees are important issues, and we want the applicant; 9 to put his evidence in on those right now, and then the inter-10 t
venors will put theirs in, and the Staff will put theirs in, 11 and that will allow that to be appealed while we go on with , l 4
i
- l 12 l the rest of the hearing. ;
p l i
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13 i That seems to me to have --
14 MR. DIGNAN: Well, in Seabrook, that is the way 15 Seabrook was tried. By stipulation of counsel, it was tried l 1
i issue by issue. In other words, all the applicant's evidence ;
16 ! I o
!! l
- " on Issue No. 1, and the intervenor evidence, and then the
! i 18 i Staff.
MR. BUTZEL: Right.
19 h ii 20 d MR. DIGNAN: And I will never do that again. I mean, i
21 L it was a disaster. Tony Royceman (phonetic) and I decided to
!^)
\/
b try it. I don't know whether he feels he would do it again, 22 p 4
23 0 but I will never do it again. '
rw I (m) 24 I Because what happened was, you inevitably wound up ace-Fecerst Reacrters, Iric, ,
trying, say, need for power here and then you moved on to otheri 23 {
9
r i
92 !
1 issues and there was a complaint at the end that everything
) 2 you had done on the need for power five months ago was no good.
1 3: So I now have come full circle and have become a i
4! devotee of I will put my case in and then the opposition puts i l I S,I its. case and the Staff put its case, i I
6i MR. BUTZEL: Even if you did go issue by issue, then; t
7 the question would be, would the licensing board -- would the 8 parties have an interest in briefing those issues at that time,! 1 9 slowing up the rest of the proceeding, presumably, because you 10 t can't both be at hearings at the same time you are briefing 1
11 them, j l i 12 , And the licensing board ought to take its time to (
,. . I k )-_ 13 decide, and it seems unlikely that it would serve very much o'f l 14 g a purpose from anyone's point of view or would seem to be
?
very profitable from anyone's point of view. Although I can 15 l 1
16 think that there might be an authorization that would allow I i
17 l a licensing board to determine that because one issue seems 18 Particularly pertinent they wanted to try that first. It is l 19 l to the licensing board's discretion to do that.
i i
20 i (Interference from noise from air conditioner.)
21 I. MR. SMITH: I think we have that discretion now.
4
() 22 And I wouldn' t think that a yes or a no answer would be the 23 outcome (unintelligible), given the issues.
fm
(_) 24 .
MR. DIGNAN: Also, cn interlocutory appeal, what
.Aes-Faceral Resorters. Inc. l '
25 they could do is take the so-called Seabrook rule where the v
, _ _ _ . _ _ - . _ . _ . _ . _ . . _ . . _ . . _ . _ . _ _ . . . . . ~ _ . . - _ _ . _ . . . . _ . _ . . . . . _ _ . , .
I i
93 1 :
I appeal board established a method for taking what amounts to I
) ! t 2l an interlocutory appeal, except it is called directive certi-
! i 3l fication, and making it part of the regulations.
4 But right now I think the appeal board as all the ;
i ,
5 authority it needs to get at' issues of interlocutorily, and 6, the. licensing board has all the authority it needs to send one '
7 up if it wants to. I don't see how playing with that any I
3 further other than, maybe, as I say, drafting into the rules, !
9! because maybe people who aren't familiar with the agency '
I 10 5 (phonetic) rules of practice don't realize that right is -
Il there. But it is there. I 12 MR. CHO: Well, let's move to.the question of 13 'certif,ication , then. Should that be exercised more frequently 14 and if so, what kinds of questions? I 15 MR. TOURTELLOTTE: I find it very difficult to get 16 certification during the course of a hearing. And I am not 17 sure that that is necessarily a good idea.
18 I don't see why certain issues if they are important 19 enough can't be reviewed by the appeal board while the 20 licensing bodrd is considering (inaudible). And particularly t
21 ;
on an item -- I will give you an example about the ct tification.
I 22 p Suppose there is a major disagreement sh.at what i
23 you are supposed the scope of the hearing is supposed to be.- .
i 24 And suppose by, for instance, one party says, "Well, the scope Ace-Fmarat Re:mrters, lrc l l
25j of this hearing is the construction of Unit No. 1." !
1
- . . . . - . _ . - . - - _ . . . - - . - . . . - - - . . . - _ - . . _ _ . .~. . . . . - . _ . - . - . _ _ ,
94 j l '
1 Pad somebody else says, " Wait, they are going to I I
I 2 build four units here. We think the-scope of the hearing ought! l
< i g .
%- 3 to be four units instead of-one unit." l' l'
)
4 l l i !
- l. 4' ;And a decision is made by the licensing board, "Well) .
l t 6
5l we' don?t.know, we will hear what everybody has to say on.each ;
i i issue, on each approach." !
5f. 6 1 1 i R 7 It would be absolutely ludicrous to go forward on ;
- i. '
8i the scope of the hearing on two different bases. Or they might! l l
\ :
9l say, let's go forward.on the four, somebody else (inaudible) ,
l i 10 ! just be one, j 11 It is very difficult to get cert in those cases. ;
! i l i 12 l And I think it should get easier to get cert. l i )
(~Y
- / 13 l MS. CARON: I will give you another example where t
14 an appeal board certified three issues and the scope of the- l :
i 15 l hearing and said we will not. certify further issues without I
-16 1 the consent of the parties to come back and (unintelligible) b 17 :i both issues. (Unintelligible . )
-i !
18 MR. DIGNAN: I don't know how you make it easier 19 ; to do it simply because what you are really dealing with is i
the attitudes of the board.
20 {
t Now, the way the directive certification rule was
.21 [.
3
-22 4 Put into the law was I thought was one of the best certified 4 ~ 2 3 question I had ever had in my life, and the licensing board -- ,
24 ! this was on the question of whether or not you had to provide Oa FMerat Recorters, Inc. ;
for evacuation beyond ELPZ (phonetic). It seems to me it was 4 25 l I
p.
! l l 1
95 !
1n a clean, legal question.
l (2) 4 L 2 il The licensing board ruled against my on the law and I
i 3 said they would not certify it (unintelligible) evidence. So I
4 that is when we invented this directive certification.
5l The appeal board said, yes, directive certification I i 6 is okay, but this isn't an important issue. ,
7 We took 10 days of evidence, and the licensing board; i
8 reversed itself. And the initial decision held that as a matter 9l of law you didn't have to evacuate beyond the LPZ, and the l !
10 ! appeal board affirmed it.
11 Now, if we had been able to get that thing up before
. 12 ,the appeal board, presumably, there would have bs n 10 days
'-- saved in that hearing. - -
13 !
~
l .
14 l But, again, no procedural device stopped us. The I 15 ; appeal board said we could come to them. It was just the 16 attitude of the board members involved. Dan had -- I think --
i il 17 l who I have great respect for - Dan doesn't like to certify, 18 , I think it is fair to say, and Rosenthal doesn't like inter-i i
19 i locutory appeals, I don't think -- I may be being unfair.
20 1 MR, SMITH: You don't have to speculate. He doesn't. ,
i 21 , He said so.
(~)
\- 22 'j 4
(Laughter.)
l l 23 MR. DIGNAN: Yes. And I don't think Mike Courrage ;
- O) i
\- 24 l (phonetic) is a huge fan of it either, and we had them as the i ba.Freem.wrtm.ine.! l legal majority. !
25l i
i o
i i I 96 l l l i' 1 And so I don't know what kind of a rule you could '
) l 2 write to encourage judges to have different views of inter- ,
j ;
i j 3 locutory appeals unless you told them there will be interlocutory 4 appeal (unintelligiblel, and that'you don't want to do. l :
l 5 MR. CHO: How about a policy statement by the >
I i )
6 Commission? l
! l t i 7 MS. CARON: That is like what Jim was suggesting. '
l l
i 8 I am not willing to depend on the grace and favor. !'
i l
9 MR. TOURTELLOTTE: Well, the thing of it is like --
t <
10 i I was very surprised in the not-too-distant past when it seemed i 11 like I suggested certification or even referral by the licensing )
J 12 board, they seemed like they were offended by that. i
! t
~O 13 When, in fact, as a lawyer I have somebody sitting j 14 across the table from me and they disagree with me about i
)
l 15 something, but I understand that is your position to disagree.
1 16 And I am not really offended by the fact that we disagree.
\ :
17 And I don't really see why a board or court should 18 . be offended by the fact that here is a point which ultimately 19 11s going to be appealed, and so why not get a final statement i
20 I -on the disposition? ,
I i 21 Because there is one other thing that is seldom 22 l taken into account. And that is, the precedential value of I
23 what goes on. It is very difficult to keep track of each f 24 little thing, but if you start out in one case and you pursue ldce Fcceril T,ecorters, Inc.
25 a certain course of action, even though ultimately you win your 1
i- i
i 97 i l
l
,_s 1 lj point, and procedurally it didn't make any difference to the
- 0) N outcome, it will make a difference in how you will proceed in i l
1 2 j!
1 3; the next proceeding, because three years down the line somebody l I
i 4' is going to point back to the XYZ proceeding and say this is i i 5; the way we did it there, and nobody else in the room was there 6I to say, oh, yes, that is the way you did it, but in the final ;
7 analysis it turned out this way. ; l 3j So the precedential problems that are established !
l 9! by not being allowed to have the sort of thing, something that 10 l can add to delay, it can also bring about a meaningless i , I 11 , burden to the record. l l
12 l MR. DIGNAN: Yes, but how are you going to write a :
c' l I
l t
' 13 rule other than a direct command that they must take an l 14 , interlocutory appeal that isn't going to depend upon the i l i l 15 attitudes of the chairman of the licensing board, and at least I il 16(l the legal majority of an appeal board?
i 17 And I don't think you can, and you have got the la right you want now, and directive certification is there. Maybe i
19 I it should be memorialized in the reg, but it is there. l t
20 !i The probime is getting certain judges to have the il 21 same view of it that you and I might.
f~)
As 22 li d
MR. CHO: Gary, p
23 lI MR. MILHOLLIN: I would just like to ask Ivan what
/~T I !
(/ 24 he thinks about it. He is a licensing board chairman with a Ace Feart Rearmers. f nc.
25 ! lot of experience. Maybe there is a reluctance on the part of !
l i
i I
,, t 98 '
1 licensing board chairmen to certify things. I am a part-time i O
i i i 2 licensing board _ chairman myself, but I don't have the experience
.I 3 necessary really to say what other chairmen may think, or even 4 what I think about a thing. !
t
, 5i MR. SMITH: Well, I wish I could recall the case, '
i ;
I ,
'6 but I can't. ,
i 7 I' remember one case-in which the licensing board 4 i !
i 8l certified an issue to the appeal board in 1976. The appeal !
9 board was very strong'in'the disapproval of what-they regarded l l 10 !
as the certification of a question which wasn't important enough, i, 11 I even to the point where'they said the worse that could happen 12 is ,that you would have to try the case over again. ~
i O~ 13 (Whistle.)
- 14 And that isn't difficult in our system of practice l
-l 15 ' and the system of jurisprudence. And if the initial response !
l 16 (unintelligible). l i
17 i And I don't think that I have seen presiding officers 18 personally offended by a request for certification, although i 19 1 that may be. I think the attitude is the presiding officer l
has a responsibility to decide it, the decision. And you are 20 l I
21 L not really fulfilling that responsibility if you (unintelligible) i - i!
t 22 'l
! a:
. l' certify to the appeal board.
23 l That, in my view, is the attitude that I have
!A lV 24 l
' Ace Fer:eral Reactiers, Inc, l heard expressed. I have only had one request for certification.
25 l I' had other issues that I sure wish could. have been certified i
i 99 l 1 because simply because I didn't like them, (unintelligible).
) I 2 j; But the appeal board has made it, I think, rather l 6
,f- 3 clear that go to a great deal of (unintelligible), if that should
'xs , t 4 8 be the case, but don't (unintelligible). ;
5 MR. MULHOLLIN: Would the same hold true where the --
I i 6L MR. SMITH: Appeal from it? A partial --
i 7' MR. MULHOLLIN: Suppose, for example, there were a ,
i 8j question about the scope of the hearing or whether a (unintel-1 ligible) should be admitted, and the licensing board writes 9l 10 ' an opinion on a point that has not been decided yet or previously 11 by the appeal board. ;
12 And then you would have an appeal, so that you
,, ~\
\-) 13 saw (phonetic) the system in which the initial de' cider, the .
14 written opinion, but you just make the appeal available at an: ;
15 I earlier time, 16 MR. SMITH: This position is in an area where I 1
17 would like to see perhaps some experimentation, if not a l l
18 change. And that is, under our rules today an intervenor can 19 propose, say, 100 contentions.'(phonetic) .
. And we can throw 20 i out 99, and the intervenor again, and that's it. And not a 1
1 21 ! word (phonetic) he has to say about the validity of the court (3
%) 22 a b
throwing out the contentions and certifications all over.
0 23 ll MR. MULHOLLIN: I am not really sure how I feel I) sj 24 about it, but it does seem to me there should be some point Acm Fecerad Reaorters. Inc. !
where the interlocutor could say, "Well, we are not sure about 25 l i
, . . _ . _ _ _ _ _ _ _ _ . _ . _ _ _ . . . _ _ . . . _ _ . - . _ - . _ . _ _ _ _ . . . _ _ . _ ~ . _
100 ;
1 this issue and let's decide, let's get a. decision early on,
(:) 2 rather than waiting until everything is done and the initial i
decision is out, and finding we did err in (unintelligible). !
3l l O- l l 4- So I would like to see -- it can't be done now, ,
! i L
5l by the rules,-- I would like to see at least an opportunity ;
j i .
6!.; for some-important issues which should be drafted no, or no go,I ;
i ,
7 really important issues. (Unintelligible.) j .;
i 8 I also see nothing particularly wrong with the I
! l 9l (unintelligible) of the decision, particularly when you do have!
l l !
10 1 built-in delays quite regularly, (unintelligible) ability : )
I Ja 11 aside , quite ' regularly, torwards a (unintelligble) hearing 12 on environmental' issues simply because the Staff' papers are apt
. I 13 to be read.' !
I i 14 And then going to hearir.g later on on the I i l
15 (unintelligible) of the issues because the -- I see nothing wrong 16 f with having a partial decision when you have the opportunity.
11 17 I Now,,what I have observed in the appeal board, what )
i i 18 they do is, when they get that partial decision they just put 19 it on the shelf until the second one comes in. And maybe the 20 , problem'.could behaddressed better. ! :
-! j.
21 MR. MC GARRY: In one case we had three partial T
O.. 22 L. (unintelligible) decisions, the appellate review just tabled 23 dunn (phonetic) until they got the final one.
b 24 MR. SMITH: But maybe that is an indication that l AceJer:eral Reoortersiinc.
25 they are not really troubled by thi decision -- l t
o i
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101 i 1
, i j !
11 MR. CHO: Let me just ask one question. Is there ;
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a' practical effect from delay in a file, the appeal board, say, j
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i 3' considering the practical initial decision?.
() 4' l
MR. MC GARRY: I would say in some instances there I
! i 5 could be. l !
i 61 ;
(End of noise interference from air conditioner.)
7 MR. MC GARRY: Site suitability issues might be ,
I ' >
aj '
ripe for appellate review. And why not find out if this site l
[
9' is suitable? .!
I 10 My lord,'we got caught with the Pilgrim-St. Lucy l
!l f'
11 i (phonetic) situation in a.particular case, and I would just as ;
12 ! soon have gone up to the appeal board and get it all resolved. :
) 13 ' MR. CHO: So, say, delay by the appeal board at that li .
14 !! stage could delay the overall start of the project?
15 j MR. MC GARRY: Indeef., it did, in-this particular i l
I 16 case.- It absolutely did.
't?- bHL SMITH: Isn't this one of our problems? We 4
18 h; don't really -- have we ever had a real good evaluation,o
.I analysis of what type, where delays, where we find it? I don't; 1? o[
I i 20 i - think we have. i 21 al MR. DIGNAN: We have never had a real, analysis of
( -
22 how all the rules of practice work together. I mean, this,
-23 with all. deference to those who worked hard to put it together,
() 24
. A*Feifel Reportes. Inc. !
this is just another example of what is going on with the rules
- 25 j of. practice.for years. .
i I i I
i i
. ...,_n .w.- +w-e -r - . . . ,,w , - . - . . . , - - -c , , - - - _ . ,3,,., ., . , . - , . ,
102 i 1 "Well, we got a problem; let's fix it up." So l I) 1 -
you' focus on Rule 1 or 2.
2[ And it's a disaster. >
il i 3 And I don't see -- we consider nuclear power unique, i 4j It is regulated in unique fashion. Thecourtstreatituniquely.)
, t ;
5 They really have,.even the Supreme Court. You may not like the L
6; way the Supreme Court treats it, but they have given this 7! agency more discretion than any other.
i 4 i
8 And yet, for some reason we just hauled out the 9l federal rules one day, modified a few words, and called that 10 the rules of practice of an agency regulating a unique
,11 technology. It is idiotic. .
12 And this'is going to be another fix-up. ,And we
, l i
are going to get 25 decisions out of whatever rule you change
' 13 lL 14 I to.
p-1 15 That's the biggest argument for not changing the 16 rule, is that we don' t develop a procedural thing that the d
17 d appeal board is going to have to write four more decisions on.
0 18 And everybody knows what the rules are now, what they are.
19 j But these practice rules have not been gone over 1
20 I systematically since 1972, and before that not before, I think, 21yl whenever they were recently promulgated was in '63, or something l II 22 y like that.
0 23 MR. TOURTELLOTTE: Not really based entirely on the
- ,q
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(_/ 24 federal rules, either.
Ace.Foceral Renorters, Inc.
25 MR. DIGNAN: I know. There have been some changes i
j
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! I 103 i i
l l l l I
_ 1 mrde. But again, it was piecemeal, j 1
_ ! i In '72, the attempt was probably the most systematic, 2l l
! < l "N 3 but even that fell way short.
(J l l 4 MR. SMITH: I think that when you talked about the ; '
! l 5, board's attitude about certifying questions more frequently l I 6' to the appeal board, there may be another problem there. l l
! 1 7 I do think that the basic problem is that the boards l 8 feel that they have a responsibility, and they should decide l l
9 it, and that is there job.
I i
10 ' But there is another aspect to this question, and '
11 the entire meeting that we are having, all the panels, and thatl i 1 12 is, most of the options, at least many of the options are l
/~s . 6 l 13 working, are continuing a trend toward t,aking responsibility 14 and authority from licensing boards and placing it in appeal
- 15 I boards.
16 And you add that already to a rather unusual d
17 situation in which you have an intermediary appeal body which i.
18 has the right, under rules, to substitute their judgment, their-19 ' nonerroneous judgment of the hearing officer, simply because 20 their judgment is preferable. ,
21 , In my view, the inevitable flow is that all practical 22 l_ adjudicative power is going to reside in the appeal board 23 unless that trend is reversed or halted. And it is not going '
i l)
K- 24 to be, it is not going to be halted, not for a long time.
l A>Fm:rel Reremrs, Inc. 1 !
25 They may become overwhelmed and the pendulum will swing, but -
i i
- s. , - . ~ . . . - - ..~. .-.. . . . - . . - - . . _ . . . .... - . - - --
104 1 it is not going to be halted for a long time.
' ~ () 2 So what we have to do -- and that is why I am ,
.i l g 3 supporting some of these things here which I don't really agree J i i 4 with the direction of, I am supporting easier stay standards. j-5 So what we have to do is, although I wish that the ,
6, trend were 'not going -that way, try to make it work, assuming , '
7 that it will go that way.
8 Okay, we have been viewing it so far as largely l' l
9 a legal problem. And I am not aware of any study or attention 10 I or consideration being given to the practical agency management!
I 11 aspects of this direction of this trend. l 12 I am sure that the appeal board, and Al Rosenthal l 13 will be quick to advise us if the felt that they couldn't 14 handle their workload; and they are very talented. And certainly 15 , theCommissionhasarighttoreposeitsconfidenceandresourcesl I !
16 I 'wherever.they want to; they own the store.
1 !
l i
17 l But you can't look at it in isolation. And the 18 more that authority and responsibility flows from licensing l 19 ; boards, the more the licensing boards will atrophy and the l
20 i less reliable their product will be.
i 21 I I think one of the reasons is rather basic, and that:
i
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is, look', I am going to be backstopped, why worry? This isn't b
23 ] my -- I don't have to really worry about the consequences of O 24l Ace-Federal Reoorters, Inc.
whee 1 decide.
25 ' Furthermore, we have on our panel some of the most ,
i
1 l 105 l l
1 brilliant scientific minds'that are available in this industry.
{['D ' '
2 And these are important and busy men. And they are simply 3
3 . not going to maintain _their interest in this process if they O.
, - t 4 I are second-guessed on every issue that comes along; they are l 5l not going to maintain -- they haveilmportant things to do back I i 6, at their universities and labs.
I 7 And they are not going to sit around if every time I
an issue comes up that has to be, that is in doubt, has to 8l 9 he certified. These men are important, and they are well- ;
r 10 i recognized men.
11 From my personal point of view, I don't think a !
l 12 1 strong chairman is going to be interested in serving on' boards !
s ! .
j s- 13 if youLhave toolfrequent certification and if you too casually l
, , I
.14 assume that the charges made by industry and others that there il 15 ! '
are a lot of incompetents on our boards is true. If you just :
l 16 assume that that is the case, you are going to lose strong I
17 l chairmen. ,
L 18 , And I think -- and I don't know anybody else that i
L 19 agrees with me -- but I think we have already seen an exodus l i
20 of.some very competent people. You saw Dan Headley (phonetic) .
21 !o You know how competent he is. ! .
i f'% - G 22 h Now, I am not saying why he left. But others have n
4 !!
4
! -23 left.
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24 Okay, My point is that the more power, the more
! Ace FemI Ramnm, Inc. f !
! 25 ! responsibility that is put _ in the appeal board and taken away !
t l ,
! I
, - ,~ n , ,
l 106 l l
1 from the licensing boards, the more the appeal board will have l
(~3
\- to assume that power and exercise it, and then the cycle 2
l l
3 accelerates. i 73 V
4 MR. TOURTELLOTTE: The idea is sort of like in l 1
5 management where the manager tends to oversupervise, and the 6 more he oversupervises the more he has to, because a few things i
7 happen:
i 8 The person who is being supervised (a) becomes !
9 discouraged and says he will do it anyway; and then his own ;
1 l
10 1 ability sort of atrophies and he becomes truly dependent upon !
i 11 his supervisor.
12 MR. SMITH: That's right. Except that the atrophy 13 in a body is true atrophy, because you will lose the talented 14 people. They are not going to sit on a road show. We don't 15 liwant to go out there just to please the public and let them ,
16 know that we are sitting out there listening if we don't make 17 any real decisions. They will find more important, more 18 challenging work to do.
19 ! MR. MC GARRY: I can say, in my experience that i 20 l I have only sought certification once, maybe twice. ,
21 Well, that's what I start out with. I think the rm
() 22 y l
licensing board does a job, and it is very rare that I feel h
23 the need to even consider going up to the appeal board or the
(_) 24 Commission.
A&FMetal Reporters, Inc. ', j 25 l MR. DIGNAN: I think I have only sought it once and the was that one time -- I wish it had been granted, but it wasn't., -
l
l 107 i l ,
- 1. I think the remarks that you have just made, even !
( ' '
2 if they aren't really directly appropriate to what we are now t l 3 charged,.are so right.
4 Another major problem you can put on my list of l j l
15 Tproblems is the fact that the, right, wrong, or indifferent, l t
6, the trend has.been to regard the licensing board as something i . l
\ , ;
7 less than what they were in the sixties, and that's a big j j l
8 mistake, in my opinion. .
9 And it is not helped, and I am fully aware I am j l
. I i l 10 saying this to somebody who (unintelligible) -- it is not i 1
11 helped when intemperate language is used by the appeal board, !
1
-12 no matter how upset they are with what went on below. t O
'l 13 MR. SMITH: And isn't there another thing that 14 happens, too? l 15 As the licensing boards become, are discouraged, ,
16 and they lose their authority and responsibility, there is a 17 j tendency of the litigants to finesse them. This is a recognized 18 'litigative tactic:
1 19 You finesse to the power. And if the licensing ! l
'20 boards are not making the decisions, and if they become less i
21 {
important, then the big guns -- with great risk, however --
i
[su) 22 g then the big guns will be saved for the appeal board.
i; ;
o 23 0 And I commenting not just on the question of I 24 certification. I-am commenting upon the entire direction which Ace-Federal Peoorters, Inc.
25 '; is. implied by many of the options we have considered.
l' 1
\
l i
108 i i
I l 1 Now, many of the other options really are worthy of '
2l consideration because they do, indeed, allow an early decision !
l 3I at appropriate appellate level. It is appropriate appellate
,}
{
4 level considerations, and they do allow that to get there earlyj i 5 MR. CHO: Let me say, Ivan, I appreciate what you l 6l say in a broader context, but I do think it is pertinent to ,
7 the certification question. l 8 If I understand you correctly, and maybe some of l
9 the comments the other people have made, too, that maybe more >
4 i l
10 ! frequent certification, given the present system, the present ,
11 rules, is not a reasonable alternative here. That a more i
12 reasonable alternatiye for a change' is tampering, maybe, with .
I)
\' 13 some other aspects of the system rather than with some policy i 14 statement or other method of trying to get more certification. i
. I i
15 ' MR. MC GARRY: Unless, unless -- what I have been 16 saying is that the appeal board is going to take away power 17 from the licensing board, and then if we are going to go through 18 the motions, doggone, if you have an important issue, let's get l i 19 j it up to the appeal board right away and get it certified.
l 20 i But I don't think it should work that way.
I l
21 l MR. DIGNAN: Yes, In fairness to the appeal board, 22{l the appeal board, as you have said, has not been trying to I;
They have not undercut 23 [ exercise a lot of interlocutory power.
(~/
N- the licensing board from that point of view. They have made 24 l Aes-Federd Reportees, Inc, j 25 it damn clear that they are not that happy when it comes up, l,
1 l
109 1
I 1 whatever route to them, on an interlocutory basis. l
\
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x-)
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2 ll! So I don't think, whatever I may think they have l
r~s 3! created as an aura down in the licensing board for other ,
(_) I i l 4 reasons, I don't think you can fairly say that they have under-i i Sl cut the licensing boards in allowing frequent certification.
I t 6! MR. SMITH: Not in the long term. I think that the I
7' trend is beginning to increase a bit, but not in the long term.
l i
8j MR. DIGNAN: But if I understood your point, and I ! l
?
l 9 think it is a good one, if the appeal board is going to I l 10 t continue the trend of really becoming the dedisionmaker on a ;
I 11 fact basis on every one of these cases, maybe you have to !
12 think of more certification to put the' cases as early as i
< 1 (N) 13 possible in front of a real decisionmaker, which I agree with I i
14 you will then destroy the licensing boards. 1 1
I 15 MR. MILHOLLIN: Ivan, your remarks, I take it apply 16 to appeals as well as certification, but with lesser force, 17 perhaps. l 1
18 MR. SMITH: Yes. I seized upon certification as an i
19 opportunity to make my general observation about the entire i l 20 trend of power flowing from licensing boards to appeal boards l 21 and the unconsidered consequences of it. l I')
! \/ 22 ht MR. CHO: But certainly the context of certification li 23 ' which we are discussing now, anything which encourages certi- ,
l r^3 l l
(_) 24 fication has these undesirable effects which you point out on l A>FMetal Remrters, inc. ! i l 25 the licensing board, on the system. l l
1
.- i 110 1 MR. SMITH: I think the presiding officers of boards, C:)- l 2 should hav.e a great deal of discretion to certify questions l 1
l 3i to appeal boards if they think'it belongs there. I am not l
)' I '
4 concerned about losing prestige or power because an issue that 5 comes up which.is novel. I 6 I think certification should be preceded by a i 7? Proposed resolution of it. I think that should always be part 8 of it, you just don't bounce it up. "This is how we think-it -
9 should be, what do you'think?" l l o !- MR. CHO: More of a deferral of a ruling'rather than! ,
l 11 'a certification question? f i
12 ,
MR.' SMITH: Yes. But,I still would want very broad 4
13 latitude in the hearing boards to certify if they feel that ,
! i 14 -it is warranted. l 15 MR. CHO:- Well, do you think, though, that the i
16 system ought to encourage more frequent certification, more i
17 questions? f I
18 MR. SMITH : My experience doesn't really help me-19 answer that.too well. j i
20 I have neverLhad too many problems with it. [
t i 21 MR. BUTZEL: May I make an observation? l
- () 22 I found your remarks very interesting and pertinent I 1
23' to issues that I feel.strongly about, too. I think in perti- .
)f 24 ;
Am.FMmI Ruonm, lnc. !
nence to what we are discussing, including the immediate j
l 25 effectiveness, I started out' today suggesting that the decisions,- l 1 ,
l.
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c 111 l l 1
- l. 1 as I view them, the decisions of the licensing boards are l i- ( ) 2 preliminary in nature. .
I !
je) 3I What your observation -- tend to ma). , me feel more
! \-) l l 4 strongly about that. Not necessarily that they should be that j-L i 5 way, but that is the way the licensing board decision should >
1
.5 be taken. 4 l
7 But if you are correct, and I think you are correct ,
I t
8 thatmoreandmoredecisionalworkismovingupintotheapoeall 9 board, and I also agree with you, that it-is bound to have an ;
i 10 ! effect on the licensing boards that you describe, untimately i 11 that is what happens. { ;
12 But more. and more of '.he decisions are going to be i ,
( 13 made in the appeal boards then the licensing boards decisions i
14 become more and more preliminary in its nature. If that is ;
15 the case, then just directing myself to these concerns which 16 I feel, everything encourages early certification because the 17 l more issues you get decided earlier, the easier it may be i
I 18 to move on to the next step, judicial review.
19 Because those issues have already been decided 20 l and you just proceed on them, and then you don't have to have i i 21_ g the hiatus while the construction goes on for six months !
I -22 before you get to' court.
L i Not only did I find your remarks moving, I found 23 q! .
- ([
[ A>FMIrel Retarters, Inc. '
24 them interesting,.though, because I think that in strange ways l
25 different points of view come back to the same sort of thing, j i
6 L. I
i~ I l
l.
112 1 If the licensing board decision were truly the
. 2 decision that the agency, the ones that were subject to judicial !
i 3l review, then I couldn't sit here and argue that it shouldn't
- i. ( i 4 have immediate effectiveness, because then it would be subject 5 to moving on into the judicial forum, 6 And.thealess it becomes that, and the longer the 7 appellate process runs on within the agency, the more difficult 8 it is to me, and the more the appellate process becomes a !
9 forum in which a decision may be changed, different results i i
10 ! may be reached, then I think that the immediate effectiveness 11 rule is unfair. . I ;
, ) i 12 Because it is effecti.vely allowing people'ho go l
([) 13 ahead and proceed -- it is unfair -- I mean, I won't say it I
j j 1
14 is unfair to utilities, because they can fend for themselves --!
15 but it does create a reliance which I think the utilities take ,
I i
16 advantage of the' fact, and therefore it is to my disadvantage i) 17 or the disadvantage of my clients, i
18 But it is certainly unfair to us, because can it i
19 move on, and appeal it in court, and sit there, but we may get -
i 20 a different result in the agency -- it is unfair. !
i i
-21 MR. TOURTELLOTTE:
Well, A1, would you then say that ' '
O 22 ; one of the things that would make you feel dif ferently about l
23 the immediate effectiveness rule would be if they would simply
) 24 do away with the appeal?
A>Fewel Recorters, lnc.
25 MR. BUTZEL: Well, that's -- I was thinking about I
i
+ 1 e
113 I that. .
2 MR. DIGNAN: Who would do the job, then? The j i
Commi clon, you mean?
O 3
.I i
t 4 MR. BUTZEL: You make the appeal that the licensing 5 board's decision is (phonetic) , subject only to judicial ;
i 6 review, except that the Commission could, on its own motion, I i 7 as it can now, or on motion. of the party, decide that it wanted' 8 to review the thing for itself. ;
i 9 MR. DIGNAN: Then you are saying get rid of the l 10 - appeal board. !
l 11 MR. BUTZEL: Well -- l 12 MR. DIGNAN: I mean, that is what he is saying.
13 MR. TOURTELLOTTE: But the one point along those f ;
14 lines, though, is to the best of my knowledge, andIdon'tknowl 15 about all agencies, but most, as far as I know, we are the 16 only agency that has an appeal board.
17 MR. DIGNAN: I agree, j l
18 MR. SMITH: No, no. j i
19 MR. DIGNAN: WLA1, you are not the only, but you !
20 are one of the few. l MR. SMITH: I 21 We are one of the few agencies in which 22 the: Commission has said you may upset a nonerroneous decision 23 simply by substituting your judgment, if your judgment is ;
d) 24 preferable. Now, that may be unique. Many agencies have ke Fewd Rgmnm, Inc. '
25 intervening appellate bodies.
l l
u ., ,, .
p 114 1 MR. TOURTELLOTTE: Let me tell you, some of the
()' 2 : other agencies, the way they. operate, is they have in most 3 cases an ALJ who makes a decision. And that decision, unless O 4 'l it is turned around in some way within 30 days, becomes the rule I t 5 of the agency. l 6, MR. DIGNAN: Right.
i 7 MR. TOURTELLOTTE: And the way they review it,-is i i
l 8 they have what they call in va_ious ways an Office of Special j Assistance, and those Special Assistants review those opinions !
9l '
10 ! and bring them to the attention of the Commission, andwhatthef.
Il salient points of those decisions are, and the Commission !
. I 12 considers whether they want to turn them around or not.
O 13 i If they don't act, the Commissions usually -- and i
. i 14 I am thinking of, say, specifically, it used to be the Federal 15 Power Commission and FERC, they woul d have the alternatives of 16 either: (a) accepting completely what the ALJ did; or (b) 17 - rejecting totally what they did and writing their own opinion; 18 or (c) accepting part of it and modifying it to the extent 19 that they wanted to do so.
e 20 '
And usually that opinion was written by the Office 21 ,
of Special Assistance for the Commissioners to adopt.
g
- -- 22 h MR. DIGNAN: There is not doubt the NRC is unique in n
ft 23 having an appeal board that has the authority this one does.
( -
24 But on the other hand, you can get a lot of administrative Am FWiral Roonm, Inc, ,
25 lawyers to argun that is probably a good thing, because -- l t
V
115 i 1 You are right, this is how most agencies work. And ,
r~s i t
) 2j one of the frustrating things, aul I have tried before the SEC ,
c 3i never before the FPC, is knowing that when you are upset with v
4 what the ALJ did, you are dependent upon the views of some 5' OP i nion-writing lawyer. You don't know who he is. You never 6 have a chance to argue to him orally, you never have a chance, i 7 in your judgment -- maybe this is unfair -- but to really ;
I 8 make your point to him. l 9 At least with the appeal board, as.a lawyer you 10 ' feel you have got a chance to write a brief right at these 11 guys and stand up there and argue the case to them, rather 12 . than having some -- I wi.11 be a wise guy for a minute - ,some
(~h
\~) - 13 faceless bureacrat send up to another faceless bureaucrat his 14 judgment of whether this thing ought to be knocked over without 15 you ever having a chance to really influence his judgment.
16 MR., SMITH: It is even worse than that in some agencies. ;
17 ll i !
18 MR. DIGNAN: I know it is. I am not saying that is l l
19 bad. I am saying that I don't think the concept of an appeal )
20 board is all bad in this agency. Unless you want to turn the I
21 agency into the appeal board, and I don't see how you can do r, i V 22 that.
23 To put it bluntly, I don't see how you can do that
) 24 ; with the present membership of this agency. I mean, the talent.
' Am-FMecl Rumtm, Inc, l 25 just isn't there. i l
i
l l
l j l 116 I i
l
,,_ 1 MR. SMITH: I don't want my remarks about the appealj i ,
(- !
2 board having taken power and having it thrust upon it -- I I l
(~ 3I don't want that to be indicating that I think we can do away l j
(_ !
l 4' with the appeal board. l i
5 In this agency, considering the talent that we have, '
I 6; considering the Commission, the appeal board is an essential; l j 7 we must have it. l I
e Our Commissioners -- I heard the Chairman mention ;
9, today that, boy, if they had to review all these cases it i l <
10 ' would be a very difficult thing. In our agency, you have to ;
11 have an intervening appellate body, and it is a lot better to 12 have these people appointed by the Commissioners themselves, l l (h .
l l
\~l 13 by minute (phonetic), be covered by the APA Act, to the extent l j i
14 that they are, to be known, to have arguments before those I l
15; l very people, have the decision signed by the people who write I 16 them compared to (unintelligible) and others where it could 17 1 be a law clerk who prepares the entire decision for a Commissioneg; i
18 and you never know.
19 I am not talking about that; I think we need the 20 appeal board.
21 I am just saying that as this power flows to the G
22 appeal board and they substitute their judgment for the non-23 erroneous judgment of the licensing boards, thenyouhadbetter; I'}
(. 24 figure out, then you had better start planning for them doing 4
As Feer l Resmrters, Inc. g 25 l most of the work, because that is where it is going to go. l l
. .. .. - - . _ _ - - - . -_ .._~-_...-..--. . - . - . - - . - . . . . _ . - .
i l .
j 117 ,
f I
1 .MR. DIGNAN: Is the solution, then, for the Commission I b 2[ to pass a regulation -- is part of the solution -- to tell the. i- '
d i 30 appeal board that their role is similar to that of the court of appeals in the federal judicial system, to wit: ;
4,l i 5i They may reverse errors of law, and they may reverse .
l \ :
l i d clearly erroneous findings,.and that is all. !
MR. SMITH: I am a little bit afrais of a too 7l i
sy simplistic correction of it, assuming what I know. [
9j MR. DIGNAN: I am, too. ,
i l
10 ' MR. SMITH: Because this is also a unique Commission.
I i
11 j There'is one lawyer on the Commission. '
. I 12 { So you just don't want to trar.sfer the power that j 13 the appeal bodrd has to the' Office of General Counsel.' Again, 14 lnanother i group of. anonymous people who you never get a chance 15 i to approach or see, d s 16 S MR, DIGNAN: No. What I am saying, have the Com-r 17 , mission pass a regulation leaving the appeal board intact as U
la j it is, but limiting their role to that of a court of appeals.
19 l MR. SMITH: A judicial standard. They do not i
20 f reverse except if it is erroneous --
h 21 ( MR. DIGNAN: Clearly erroneous, or an error of law.
u o(- 22 MR. SMITH: And then I understood that to be your l
o 23 h point.
s
. ( ). 24 But I am afraid to give you a simplistic answer, l A>Fumal Remners, inc '
25 i because I don't think that there is a clearly focalized place i
i 1 '
I
t a
118 i
, I <
i 1 in'the NRC today;where -- l l /"Y i kI 'The standard.that agencies have'is that they may 2h '
l 3: set aside the. decision of the het. ring officer or-the decision- l
~ ( ). i 4 maker nimply because they prefer another result. And that, ,
I l
S' offcourse, our Commission has it, too, i i
)
6K ,
I-don't know that our Commission is today able to i ,
7 make the judgment necessary that another result is preferable 8 in adjudications. And'if they don't make it, then who would 9l make it? It would be the' Office of General Counsel, which ,
-)
I 10 brings you rather close to the system that we were criticizing 1
11 l in other-agencies.
\
12 i MR. DIGNAN: But.they can do that now. !-
. . .\
) -13 MR. SMITH:' If I had to do it off the top of my y , i
.14 h - head, I would say that the standards should be changed, the 15 l appeal boards should be able to reverse us when we are erroneous, i
16 f but I just want to caution that that is simplistic and I am il 17 l not ure of my opinion.
13 MR. DIGNAN: But the Commission can substitute its ,
l 19 l judgment right now under the present regulations. -
l 20j MR. SMITH: But they' don't.
I I
21 i. MR. DIGNAN: Well -- , i i
.9
(). 22 ;
o MR. SMITH: Not very often.
j ,1 P 23 MR. DIGNAN: They don't do it very often, certainly. l
.( l 24 MR. SMITH: I mean, we have an unusually highly l Ace Federal Reporters, Inc. l 25 ' qualified appeal board. And that is why it is functioning very l
l I
l 119 l l 1i well. !
l
/~ !.
(>T MR. TOURTELLOTTE: Theoretically, the appeal board 2q i
l rs 3' could substitute its opinion for that of the licensing board, ,
(_) l 4, and the Commission could substitute its opinion for that of the; l l l
5 appeal board, i
6! MR. CHO: Well, if I understood Al correctly, who i 1
I , )
7j sort of started this part of the discussion, he wasn't advocating l 1
8 that the appeal board be eliminated.
9l I think he was saying, given tne appeal board in the. l
! , i 10 present structure, he would consider the licensing board 11 decision sort of a preliminery one, and --
l 1 12 j MR. MC GARRY: And that gets back to the point. l
(" i I
k- 13 i I don't view it that way. I agree with Ivan and Tom !
i 14 about -- not necessarily agreeing with them, but I would almost-15 a little time to think about it, but talking simplistically,
~16 ! Tom's suggestion, I would say I think that should be the 17 ! function of the appeal board, to act like a court of appeals 18 and let the licensing board perform its job, nct just a fact-1 19 !' gatherer. It has got to make decisions. l
- i i
20 i And I think the appeal board has done an admirable 21 job. They have brought some order out of potential chaos, that r~'s ws 9 their decisions are good decisions.
l 22 J
- 23 But I get troubled when they step over and start to )
' l em
(,)
24 play the licensing board role.
- A:e Fedyri Reporters, Inc.
25 MR. SMITH: This also has to be balanced, however.
i i
I I i
120 I t .
I 1lj IL think that in the type. of litigation we have before us in ;
() L 2 ji the future, that before we think about weakening the review j l
J ,
f~. 3 power of the appeal board, we would have to make sure that
, - i licensing boards have.the opportunity for the deliberate <
4l l l l l S' consideration of the issues before them that the appeal board !
6 L
has now.
)
j 7j ,
See, the appeal board has an advantage, and that is, i
8, they do, they can take their time. And the immediate effec-9 tiveness rule gives them that time to carefully and at their 10 leisure consider decisions.
I i
11 l Well, if the appeal board authori* were to be 1 i
. .12 i weakened, then there would have .to be a compensating opportunity
.I i .
13 i for licensing boards to approach their hearings -- and I am i
14 ' talking after the Staff (unintelligible) -- approach their 15 hearings in a much more deliberate fashion.
'i 16 h MR. DIGNAN: Yes, but that means, if I heard it r;
a .
17 :! right, it was very eloquently said that means more delay at
'I !
18 the licensing level.
- l 1
MR.-SMITH:
19 i Yes.
l, ,
20 i MR. DIGNAN: And I have no objection to that, i
21 [ strangely enough, if you will do cne thing: you write a set of;
- ('Y ll A/ 22 y procedural rules, and then the chairmen of licensing boards 23 will enforce them. ,
- ij l
(~)
( 24 f That's my gripe with the licensing boards. Nobody A=womi nwonm. inc. l 25 l enforces the rules of practice. If somebody waltzes in and says,i i
t I i i
~~ _ _ _
l 121 l i
1 "Well, gee, I couldn't get the witness ready by this week like
[h
\~# a 2d I said I would, Judge," nobody does what any federal district g- 3 judge in our district do, which is to say, "Well, good, the (S) i 4j witness isn't coming in." ;
1 i
5, They say, "Oh, well, okay, well, when do you th.nk 6 '-
l he can be ready," and we go back and forth, and then eventually 1 1 7j as the utility lawyer you get branded as an SOB and all that, i
ai and the guy brings the witness in. And if it is the intervenors, i
9j I can do the same thing under the present rules. )
10 My problem is that the licensing boards simply will I L
11 not enforce the rules of practice. That is where the delay 12 comes from.
The system, bad as it is, would work if the t' l k.)$ 13 . licensing boards would stand up there and say, "You had 10 days 14 Il to do this, you didn't do it, you are out."
(Interference from air conditioner.)
15 MR. TOURTELLOTTE: Yes, but you can't lay that all l 16 ' on the licensing board.
h i 17 j MR. DIGNAN: No, because the appeal board is upstairs ;
18 beating them on the head if they dc t do it. I agree with l l 19 ' that.
i 20 1 MR. CHO: Gary.
i l 21 f MR. MILHOLLIN: When we brought up the -- in Option
/~% It 1 kl 22 S 7-A and 7-D, we proposed (phonetic) a few things which are 23 ; fairly similar, and they both have to do with moving certain
('x ;
(_) 24 ! things through the system faster.
t Ace. Fed:ral Reporters, Inc. N 25 ' And I think Option 7-D, which .efers to Staff I !
i
l 122 l l i review (phonetic), they were wondering whether it **uld be 1
l Ib.
j 2y possible to take certain things, certain issues ich had to do, i
-)
(_/
3, with whether you are going to build a nuclear plant at all at
)
4 these locations, move those through the Staff review and the i
! i 5
3 licensing board and the appeal board so that they wouldn't j l
6 ': be on the critical path.
1 ,
.I I 7 jj We thought that was a possibility that should be ,
l l 8 investigated, and I guess one of these questions would be i
- 9. Whether utilities or the Staff should handle that kind of 10 a shedule. -
I 11 MR. MC GARRY: It seems to me that the way it comes ,
12 - about is you get L it's really three items (phonetic). ,
~
/)
(/
One is the environmental review; second is site *
.13 L I
14 ' suitability review; and third is (unintelligible) review.
15 When you get your environmental review, when you i
In 16 p go to hearing on the environmental issues, but -- and let's d
17 ll say that is all -- and you get a partial (unintellible) decision i
18 on that, there may be items that you want to go up to the il 19 'I appeal board, like the need for power and things of that
, l 20 1 nature (phonetic). :
F l i ,
21 ll But the way it usually works is, you don't wait cs n l (~)
t 22 k n
the time of going through a hearing unless there is something I i
1 you can get out of it, from the builder's point of view, so i 23 qi f d i_)/
%>Fueral 24 l R nertm, inc. 'l you go to the hearing and get the -- you want to get the site ,
l l 25 suitability package ready also. I
! I I i
l ;
I i l
.~ . . . . . . . - , - . - . . - . . - . - - . - . - - . - . - - ~ ~ . - - - . - -
L.
123 l i
L 1l; MR. MILHOLLIN: (Unintelligible) u.ad LWA. '
L(:). 2[
h MR. MC GARRY: (Unintelligible) and LWA.. j U
3 AndL that being the case, you are really for all j(- ;
intents and purposes in the same situation as if you were ;
i 4l' . 1 5; (unintelligible). You have the same problems.
i .
4 6L I don't see any issues that you would take up i
7' immediately. You still have the problem of the bulldozers t
8i' ready to go. ; ;
- i 9 I am trying to envision some circumstance where you ,
I i 10 ' could go up to the appeal board quickly. ; j 11 MR. MILHOLLIN: We are trying to think of a way to i
12 make items which appear to be simply add-on items somewhat
( 13 p parallel. ;-
, i 1 !
14 [ MR. MC'GARRY: Now, let me say on the other side of
'l 15 ? the coin, that I would push for a bifurcated (phonetic) hearing
.d 16 j (phonetic') , for one, at the OL stage. We took the environmental
- i )
17 [ thing first, and you have got a partial initial decision from 18 the environmental angle.
And I would have been happy to go up to the appeal
?
19 h i l 20 i board at that point in time and get that all -- he was sitting '
' i i
21 , -there,-my theory was, let's get part of it out of the way.
l 22 Issues may come up. We never did go the appeal board.
i 1 O
23 I think what you are raising calls for a rethinking :
- () 24 I
( A*Fxtrei nemnm. ine. !
oof the current process, The current process, for all intents I 25 and purposes won't accommodate that situation (phonetic) --
et 1
= . - . . . -
l j 124 ,
< i i
i i but if the Staff were to get a certain document out before j I)N/
2 j, other documents, or a (unintelligible) of the document out.
N
,, 3 Like, if they wanted to look at alternative sites, have an
(/ i 4, alternative site review, even though you are seeking a CP.
i l 5 MR. DIGNAN: You see, this is my whole theme, and
,l 64 I say it so often and in so many forms people are sick of it. )
d !
7 But what is coming out here is one more time we are
]
3 going to go for a quick fix of an individual problem. And u i 9 !! ll what we really had better look at is the whole thing from l l 10 ; the day that application marches into the agency. !
i 11 i I have for years been saying, "Why can't we just i
12 have it start this way?" l
() 13 r
The chief executive officer writes a letter to the i
14 agency and says,"We are going to build a nuclear power plant.
15 - We are looking for sites now, and we will be coming to your 16 Staff for review."
17 Put that notice in the paper everywhere and the 13 intervenors get it right there. Because I think that half the 9
19 'l problems would ge away before the thing even got out of the H
i 20'; Staff. The intervenors would come down and talk to the Staff r and ta.1k to the utility while the decisions were being made.
r~s a
- () 2
- L What I keep running into, and I have had two long --
23 4 there are three cases that are monuments, supposedly, to length:
i h
() 24 j Ace F2cerd Reporters, leic.
Midland, Vermont and Yankee's operating license, and Seabrcok.
25 j Two of them were mine, which may indicate that I (unintelligible).
i
! l o .
. .- _ _ _ . . _ _ _ _ _ - . _ . _ - . _ . . _ . _ . - _ . . .._ .._.m .__.-_._._.~.m.
125 f l But I can tell you, the one thing that I ran into I
( 2 constantly from a (unintelligible) whom I respected, was the I
l >
3 frustration of not getting any input or chance to influence lO L
l 4 .these things until_they were_ faced in a hearing room with i 1
5! this many volumes of Staff testimony and this many volumes
! t ,
! l l l 61 of applicant testimony and a whole bunch of reports, and then i i 7 I was told in 45 days you have.got to be ready to go.
8 I would be made, too.
l l '9 MR. SMITH: Are you talking about the early site i l 10 review (phonetic)?
11 MR. DIGNAN: No, I am talking about the whole thing. ,
i i
12 It is hhs got to be structured from Day One. You have got to, j
() - 13 put the interview ' -- yes .
i 14 And then what you have got to do is tell them to get, i
15 in there and put their feet to the fire. Now, I don't mean to l '
i j 16 sound like I am being an anti-intervenor speaker here, it is l !
17 ' just -- put them in early, and make them obey the rules like l
l l
~
l 18 everybody else. Everybody has got to obey the rules.
! i l 19 And this is what has got to be done, not to.fix 20 'this. !
i
'21 Yes, this is a non-issue as to whether or not you ,
() 22 have 20 days or don't have 20 days to -- it's an emotional -
23 I issue, I have no doubt about that. ,
l i 24 I You know, an interesting thing about Seabrook is -
'; Ace- odzrsl Reporters, Inc.
25 I hate to break it to everybody -- the system did not break l ,
l t
('
i >
126 1
! i
- L- 1 down~in Seabrook'on the NRC. What screwed Seabrook was EPA.
- l. '
2
!1 NRC didn't foul it up at'all, the NRC system didn't:{
L j 3 foul it up at all. What fouled it up was that John McGlennan
]
4 (phonetic) after two hearings gave a decision one way, held i 5 'a third hearing and changed his mind on the same evidence. ,
6l! That's what fouled up Seabrook. '
7 The NRC system didn't break down. But the NRC 8 system still needs an overhaul, I will agree to that. Because ,
9 what I think what Harold Green -- it has taken me a long time 10 to deal with him -- says, is very true..
11 Half the frustration is the intervenor's. feeling i
. . 12 that:it is a party being thrown to wh,ich you can come, have
- p. .
V 13 a glass of tea, possibly a scotch and water, and then politely 14 go home at 1:00 a.m. Anid he considers it is success if he 15 };ept the party going till 3:00 a.m. .
l 16 t MR. SMITH: Speaking of Mr. Green and other spokesmen !'
f 17 ! (unintelligible) concerning the quality of the licensing i
18 boards, it would be kind of a rough justice to then have the i !
19 immediate effectiveness rule suspended from their. contribution. ,
20 With that type of justice then (phonetic) fall ec tly on the i
]
1 21 l public interest, I don't believe.
'OP 22 Perhaps.their comments have --
1 l
23 MR. DIGNAN: I said I agreed with Harold Green. I
~
24 hope nobody (unintelligible) I agree. I know his position
! Acs-Federal Reporters, Inc ,
25 on licensing boards, and I publicly disagreed with him on his 1
~ -
_.. - . _ _ . . . . _ _ _ . _ _ _ _ _ _ - _ . _ _ _ _ . _ . _ _ . . _ . . _ _ . _ . - ~ _ . ~
- n
'; l i
l' 127 fi I: '
1 view of the competence of licensing boards. !
1 2- But I think he is correct about perception -- right, .
3 wrong, or indifferent -- that most intervenors have of the ! l
-( l!
4 entire process. And that is his point, as I understand it. i i
His major point is what is the perception of the process.
5l i i 6 And right, wrong, or indifferent, I think'that is !
I i i
- j. 7 'the perception, and I do thins what leads to it is the basically ^
i 8 late date at which the intervenors are let in; still late.
I a i
9 MR. TOURTELLOTTE: I don't necessarily agree with l
- )
! i 1 10 that. I think that may be a contributing. factor, but I -- 1 l 1 11 MR. DIGNAN: Well, I said to the Commission, and I !
l 12 ' was telling them the truth. We had $10 million stuck in l l' ( ) 13 Seabrook.before an application even was filed. ,
I I :
14 Now, when a company has $10 million sunk in something, i i
i i
15 they cre not amenable to change. And if you have got $30 l l l 16 million sunk in it before you get before a hearing board, l l
1-7 you are not very amendable to change. I 18 But if all you have got sunk in it is a letter to 19 the Commission saying an application is to come, and somebody i
20 comes over who really honestly says, " Gee, can't you go to this 21 other site?" as the chief executive, you might' listen to him.
() 22 MR. TOURTELLOTTE: Yes, okay, that's good and well, i'e 23 Tom, but there is also, as you yourself pointed out, there ;
4
, ()
l Ace.Fedual Reporters, Inc.
24 are.a good many people v.n' aren't interested in having it at 25 all. .They are simply interested in frustrating the construction
128 :
1 of!any nuclear plant at all. ; i
.() . i 2 And I can't believe that your executive or any other !
,/ } -3 utility executive executives are going to invite the lion into l
4 their homes.
as j
5! MR. DIGNAN: I can't say what they would do, but ;
l 6' I will tell you what I would advise them to do. Iwouldadvisel j L -. .
7 them to invite the lion in -- I told you the price I want back I 8 for it. The price I want back for it is a set of rules that l
i l 9 are being rigidly enforced on how the hearing is conducted. f
.l 10 In30daysyouare. ready,andifyouarenotready,f; 11 , you are out. No appeal, no nothing, you are out, you are 12 ! gone. - '
i l (])
. i !
13 MR. TOURTELLOTTE: There is no question in my mind i 14 ; but what the overall rule is being overhauled, (a) ; and (b), j t
they should be enforced in an entirely different way'than !
l 15j i
15 } they are by either the . licensing boards or the appeal board.
17 1i And I believe strongly that anybody who agitates i I i 18 can be required to (unintelligible) and not come in and move l l
19 through administrative processes as a fishing expedition. But 20 that isn't likely. to happen, j I i F
21 3 MR. SMITHe Both versions of the regulatory reform' '
r
. (h '
l j
\_) 22 bill now being considered provide for some form of intervenor ,
i !
l 23 funding. And I think that before the year is out that the law !
[
r
()~ 24 will give (phonetic) some type of intervenor funding. l l Aes Federal Peporters, Inc,
- 25 -And I am sure that the industry doesn't look forward i
i l , ~ . .
m . . . - _ , . .. _ , .- - , . -,__,_m_. .
'{
129 i 1 to that particularly, but .when that happens there is going to ;
.O be more possible licensing boards and the adjudicators at the 2
I
.[} 3 NRC (phonetic) to demand (unintelligible) that they do enforce 4 the. rules.
t
'5 Many of the reasons why you are so, they tend to be O I
'6 so-liberal with them is that they simply cannot afford -- l 7 MR. DIGNAN: I'm not talking just about intervenors, 8 you have got the Staff, too (phonetic).
9 MR. TOURTELLOTTE: Let me say this to you. ,
1 10 Licensing boards don't even look into that, though, 11 in a reasonable fashion. And I can criticize, although
, 12 (unintelligible), I can cite specific ehamples where we have ,
)
'13 PeoP l e who are intervening and they have millions of dollars , '!
14 behind them in their organization. ,
15 You can look to the size of the organization and l t
i 16 you know that it has to run over $1 million budget. And in an , -
i 17 : ordinary federal court, if you go in and you claim that you I.
18 are indigent, the federal judge doesn't just sit there and :
I i
19 say, "Oh, you are indigent, I will appoint you an attorney." ; ;
20 He makes.you'show why you are indigent.
I i' '
21 And there isn't a single time that I can think of 22 .two or three-who are professional intervenor groups who are well-funded who have been required by any licensing board to 23 l 24 show what their balance sheet is. And if they were in federal l +
A&FMmi Reponm, f nc. .
l 25 court,'they would be required to do that before they would 1 - . -. - )
l 130 <
l L i -
! - 1 be entitled to anything.- ! .
! )' l l 2 People come in and ask for transcripts because they >
3 can't afford it, and yet they have got multimillion dollar -
! 4 ' budgets. -Hundreds of -- w.11 over $1 million budget. l 5
And that, in my' view, my personal view, it is not l
6 the Steff's obviously, that is reprehensible.- i
{;
1:
7 And' it all comes out as a Santa Claus complex that l 1
we have developed within the agency, and I can't say who is i 8 ;
I 9 responsible for that. But every time.an intervenor says, 10 "I am poor," we automatically believe that he is ' poor. j 11 I had one intervenor who was complaining that they 12 were poor, and that they couldn't afford this, they couldn't I
() 13 afford that.
And we went out for a plant site visit and 'they -
1 14 drove up in a Lincoln Continental, you know.
15 Now, of course, a Lincoln' Continental is maybe not ! i i
16 $1 million budget. But then the question that came into my j 1
171 mind, just how poor are they. Can they really afford a j' 18 transcript or can they not afford a transcript. I i
i i 19 MR. BUTZEL: My point is that the taxpayers of the l
20 . United States would have to finance you and the agency.
L. 21 MR. CHO: Just a minute, Al. Thereporterneedsto--l
( 22 (End of Tape'2.) :
I
- .T351 23 MR. CHO: All right, A1.
l
- ~24 MR. DIGNAN
- I must admit that the utility executive, !
l A*FM*rel Reporters, Inc.
j L :25 as a utility lawyer, I have some sympathy, because what has l
1
. _ _ . . _ . . _ _ _ _ _ _ _ _ _ _ _ _ . . . . _ . _ _ . _ . . . _ _ _ . . . _ _ _ .. .__.s 1 131 :
L !
1 l =1 always bothered me on charitable groups claiming that they 1 1
! l l 2 are. poor -- and I have no doubts that they basically are poor, i l
! l
( 3 your' balance sheets are poor compared to utilities, j 4 The problem that worries me is that I have seen in l
l 5 New England, not necessarily just in NRC practice, .either, , j l i t
l 6; that some very wealthy people form a tax-exempt group, give
]
I l 7 it $10,000, and then the tax-exempt groups come out, "We are l
8 Poor." j
! l 9 Well, yes, if the Rockefellers and the Kennedys 10 get together and form a charitable corporation and finance it i
. i 11 l with $10,000 and $20,000 and tell them to go out there and )
, 12 ! oppose.an oil refinery up near family' property in Maine, now l
)
13 l the group is' poor. ;- {
i 14 But I do think if we are going to play this l l
15 financing game we ought to take a look at who is this group, ;
l .
i a
- $ l and are they really out of money. ,
j i
17 ! The court of appeals, interestingly enough, did J i
18 that in Seabrook, and refused to treat the intervenors and !
1 1
19 the appellants there as poverty-stricken and in being awarded _
i 20 costs against them, for just-that' reason. They would not i
! i
- - 2f, come forward and make a showing that their individual members f
() 22 { were without funds.
i i ;
.y MR. BUTZEL: If all (unintelligible) lawyers give j 23 l '
-OE- 24 your time for pro bono causes that a lot of lawyers give to 7 A&Fent Reconm, Inc. ;
25 intervenor causes, I would have a lot more sympathy with l r
. ..-- -- . . . . . .- - , . , - . , . - . - - - . - , , ~ . . . . - . - . . . . - . - ,
l 1
I
! 132 i r I l t
! -s 1 arguments of this sort, i
( i l l \/
2 As far as I am concerned, I just want to say for the t
(Ni 3 record, if I weren't here on a professional basis, I would walk l !
i !
N/ j l
4 out. )
l i
5 I think this ad hominen attack on intervenor groups I
61 and the levels of their financing is a disservice to what I :
1 I !
I l understood the purpose of this conference was to be. And I, 7l !
I l
\
8 for one, resent it personally, and don't really have much more l i
9 to say. ;
I e ,
10 I am honest. What began today as a very contructiveh j i
i l 11 interesting dialogue on how we could deal with certain aspects l '
l 12 i of the NRC rules, recognizing the limitations which Tom has ,
l (3
\'
I l 13 identified,*which I agree with, has since deteriorated into a I l 1 14 seriesofpersonalimpressionswhichIlargely--anti-intervencrl o n i 15 ! and I think it is too bad. l 16 , MR. DIGNAN: I think that is not a fair charge.
]
~
i 17 1 Mr. Smith brought up the fact that -- I thought i
la which you weren't disagreeing or upset about. I agree, it i'
19 rings a little outside the scope we originally anticipated, I l 20 but we were talking about the question of whether the rule ,
I 21 enforcement would have done a' with this problem. l
<3 V
u 22 !! Mr. Smith brought up the point that maybe this o l l h l
23 l, would change if there were intervenor funding, that the ,
l 1
/- i ;
i
- (3 > 24 enforcement would be more rigid, which naturally led into l !
iAm.Fettsim,perwriinc. -
25 a discussion, I suppose, to some extent of the wisdom or unwisdom I
i l
133 1 of that.
O .
2 My only -- I did not consider my attack ad hominem. i i
- ~3 Believe me, if I.want to make an ad hominem attack on what I l
4 have faced, I can make it.
~
5 On the other hand, I don't see any reason fort you I
6- to take umbrage with that, 'other than if you want to, you know, !
1 7 that we are on an irrelevant subject, which maybe we are. 1
(. Interference stops from air conditioner.) )
8 MR..BUTZEL: I take umbrage at that, i
9 MR. DIGNAN: Okay. ;
'10 MR. SMITH: Let me just say something there.
]
11 I take some responsibi.lity for, of course, intro-12 ;ducing the subject matter. Certainly it was not intended', -
o 13 i as' matter of fact it was intended' the opposite, to explain why 14 intervenors may sometimes have received a more relaxed treatment.
15 by presiding officers.
.16 , As the conversation progressed, because I am a I.
17 member of the board, I didn't think -- of the panel -- I didn't' , <
18 think it was appropriate for me to begin a defense of inter-19 venors or be involved in the conversation any more.
20 MR. BUTZEL': .I understand. I didn't take your l
21 , comments -- !
j l^ l 22 ,! MS. CARON: Let me say -- I did find what Jim said l )
i
. ), ;
23 a little bit strange because with money or without, and to 1
>24 a certain extent, all of us who are state employees whose f Ace.Fedart Repoiters, Inc.
25 expense accounts never quite cover, have funded these things I
l i
l 134 I
I 1 ourselves, we didn't ask special consideration.
?
! I
\ i 2 MR. TOURTELLOTTE: Well, let me say, too, I was -- i i >
7, 3 the point I was trying to make was about the general prevailing j 4 attitude within the agency of not enforcing procedureal rules.
5, And that is -- and what I said -- it may come out sounding i I very disagreeable, but it is in point in fact, neither the 6l l 7 licensing boards nor the appeal board holds intervenors 8; generally to the same standards that they would be held to in 9 federal courts, although usually the Staff and the applicant ;
1 10 are held to the same standards.
11 MR. BUTZEL: I don't either agree or disagree with !
12 that. It depends upon the judge and upon the administrative )
(~ l
()) 13 law judge; they are individuals and all that. - i la I think that the criticism of tactics that are 15 pursued by intervenor groups have a considerable amount of I I
i l justification subject to one major consistent omission on the 16 i 17 part of agency Staff and utility lawyers and the like. l I i 18 And that is the complete inequity of resources l l
1 19 that has existed. And I agree completely with what Ivan said. l 20 I think that when there is decent intervenor funding, it will 21 be much easier for licensing boards to be more insistent on
()
(/ 22 compliance with the rules.
23 And you will also find that intervenors who are ,
(~'s l
(/ 24 responsible, notwithstanding that some of them drive up in l AmFe:tst Reporters, f nc. l 25 Lincoln Continentals, which will be part of this record, are !
1 135 J i
l 7s 1 prepared to abide by that. And it might interest you to know , i
(-) 2 I
that some of us, for example, in New York, where we have been l
{} 3 trying to deal with this problem for about 10 years now, not I
4j only at the federal level but the state level, have advocated j i i I' :
5; and have passed in our legislature procedural reform that ,
)
4 i
i l <
l '
6l would limit us in the kinds of cross-examinations that would !
l !
7' be available to us in the time of cross-examination that would -
1 1
1 8 be available to us. I i ,
9 That would recognize specific time limits on the l
10 overall energy plan in the state. And we were prepared to do ; j l'
11 I that, and we specifically went before the committee and spoke ,
)
- l l '
12 1 about it, because for the first time the legislature was I
- rg ,
(-) -13 willing to appropriate fun'ds so that intervenors coul,d hire 14 decent experts so they didn't have to make their cases on i
15 I cross-examination or depend upon volunteer witnesses and the !
i 16 , like. :
n
- 7 .! And when this agency reaches that point, I think ,
18 that you will find that it is much easier to control your i
19 l own procedures. ,i iln 20 'l If you want to talk about reforming the procedures,
!i 21 0 it will be a good deal easier to do after that reform act is d
/~} 22 h passed and money is available.
N 23 '! MR. CHO: Let me suggest a break here. I understand!
(T e <
l
\s' 24 the' coffee section is open for business. Let's break for l Ace. Federal Reporters, Inc.
25 about 10 minutes and maybe come back and wind up our session
, . - - . . . - - . - - . - . - . . . - - . . . . _ ~ . . - - . . - . ~ . - _ - - - . ,
11 136 1 w'ith trying to give thought 'to the report that we might give
-2 tomorrow. j i
3 (Brief recess .) )
(w)
(- i 4 MR. CHO: Back on the record, i
)
1 5 .The last task for us today is to develop a. report
]
6 which.I asipanel chairman can give tomorrow at the general i
i i' 7 P l enary session.
i 8 MS. CARON: How long do we have to appeal? ;
.9 MR. CHO: ' No appeal, I am afraid.
10 Fortunately for me, it is not a report that I will
. i 11- develop myself, but this will be a mutual endeavor on all our 12 part. .
l O: 13 i
~
I think that what we need to do.is develop'the l 14 significant points that we covered in our discussion today*, try
.15 to note those areas in which there seems to be a consensus, P
16 where not, the differing points of view. Ultimate recommenda- i I '
17 tions that we would like to make as a panel.
18 So with those just few words at the start, we might :
1 19 begin with the process of developing the report. ,
i i !
20 I think the first point we might make is that we ! ,
21 start off with the premise that the system, the present overall ;
i I :
O- 22 system perhaps needs overhauling. But since that is not our ;
I i 23 task .to go into that, we start with a given of the present i
( 24 -immediate effectiveness rule. Is that okay for a start?
Ace Fed ral Reporters, Inc.
25 :(Interference from noise from air conditioner.)
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1 l
l !
137 i
,- 1 MR. CHO: Well, given the present immediate effec- 1 N_)s ; '
2 tiveness rule, then the question of stay'. I understand that !
l 3 there is consensus on the point that a fair shot ought to be !
/)
4 given to those people who wish to challenge the licensing I
l 5 board's decision.
6 Well, this raises the question, then, of what is a 7' fair shot? And raises the proposition that perhaps given so j i l 8 many days, X number of days to one wishing to challenge the l l 1 9 decision, would be a fair way of giving the shot, the fair I l l l 10 shot. Is this a fair exposition? i i
l l
} i 11 l MR. BUTZEL- Given a fair number of days before the l '
l 12 ! discussion would begin (phonetic). !i '
r~' l l
(_) 13 MR. DIGNAN: ,Yes. In other words, it could be '.
t i
14 , done one of two ways: !
I l 15 It could be either to say, the initial decision l
I I 16 ;j will not become effective for X days; or, the Staff will not l i
)
17 issue the construction permit for X days, and shall issue it 18 within Y days if they want to -- I don't understand why that 19 mandatory provision is in there because nobody pays any l i i n *
- 20 l attention to it anyway. l.
21 In other words, all I am trying to do is set a O
22 reasonable period of time for an intervenor to get in a motion, 23 ' a response to be filed, and the appeal board to rule before ,
So fd 24 the bulldozers take the trees down. (
- s. ine.
25 I think I would favor the concept of saying the !
. .~ .. - . . . . .. . . ~ . -- - - - - - - - - - - -.
l 137 i 1
I 1 MR. CHO: Well', given the present immediate effec- ;
.O. - !.
'2 tiveness rule, then the question of~ stay. I understand that l l l
, 3 there is consensus on the point that a fair shot ought to be 4 given to those people who wish to challenge the licensing I 5 board's decision. ;
I l )
6 Well, this raises the question, then, of what is a
.7 fair shot? And raises the proposition that perhaps given so 8 many days, X number of days to one wishing to challenge the 9 decision, would be a fair way of giving the shot, the fair 10 . shot. Is this a fair exposition?
11 MR. BUTZEL- Given a fair number of days before the i 12 discussion would begin (phonetic). l O
^
1 13 MR. DIGNAN: ,Yes. In other words, it could be 14 done one of two ways: :
15 It could be either to say, the' initial decision 16 will not become effective for X days; or, the Staff will not 17 issue the construction permit for X days, and shall issue it 18 within Y days if they want to -- I don't understand why that 19 mandatory provision is in there because nobody pays any 20 attention to it anyway.
, 21 In other words, all I am trying to do is set a 3
22 reasonable period of time for an intervenor to get in a motion,'
i 7(
li 23 a response to be filed, and the appeal board to rule before A 24 the bulldozers take the trees down.
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[\ . 125 I think I would favor the concept of saying the '
\
\
'hc 138 I
i I construction permit will' not issue for X days after the initial' 1(:) 2 decision. And it probably, as you indicate, ought to be an i
i q
3 out to allow one to issue immediately when it is uncontested 4 and nobody cares or good cause is shown. l 5, MR. TOURTELLOTTE: I dissent. l
- (
!" 12. CHO: What are you dissenting from, Jim? .
t I
7 MR. TOURTELLOTTE: Well, because I believe that 8 you can accomplish the same end under the rules as they exist. ;
i i 9 MR. SMITH: But we have excluded that. Didn't we-K) , exclude that -- because I agree with it.
11 Hadn't we at one time decided that there is dis-
. i 12 ! agreement as to whether a change is warranted under the present,
! i
- O-13 g rules? i
, t* i 14 MS. CARON: Ivan, I thought we went one step 15 further and said tha'. even if it could be done, it would be i 1
16 ' well to have it clear on the face of :he rule so that people ,
I )
I i 17 4 would feel that -- i l i 18 MR. DIGNAN: The answer is that it definitely can i i t
4 19 be done by the Staff for up to 10 days. l 20 MS.-CARON: But not longer. .L 1 21 MR. DIGNAN: But not longe r.
~22 , MR. MC GARRY: You are saying, Tom, the Staff can 23 0 delay it for 10 days.
- rn j 24- MR. 'DIGNAN
- Sure.. i I I
l A&Fuletal Reprters, Inc.
25 MR. TOURTELLOTTE: 'And what I am saying is that if
! 139 !
l 1 'a licensing board chairman can decide to issue an initial ,
I l
/^i ,
('/ 2 I decision today, the 18th, he can also make the decision to '
I 3 issue that decision 10 days from now, or 20 days from now.
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4 'And since he has that (unintelligible) to issue the construc-i 1 5 tion permit either today or 10 days from now, he can in fact ; I 6 have the simple publication made today with the effective Il ,
l t
7 date to take place as some future time.
8 MR. SMITH: Would you agree to this? l
! 4 9 And I agree with you that one way or the other he 1
10 could do it. But assuming that we are wrong, you and I are 11 wrong, would you then agree that some other method of giving 12 ;
i a fair. shot at a stay should be resolved?
/~'s l k-) , 13 MR. TOURTELLOTTE: I would want to be a little more :
l \
14 specific. I would say that if I am wrong, that it can't be !
I n 4 i i i 15 1 done under the rules as they exist, that I would suggest a ! l l
16 set period of not X number of day, but of 10 days. l l l '
(
1 I7 l; MR. SMITH: So we are pretty close together.
l 18 MR TOURTELLOTTE: And then -- l 19 MS. CARON: Well, I am not close to that at all, l l
20 because I really think that you are dependent upon a chairman il '
21 , whose sentiments you don't know, you have nothing but sand
/^i
\_/ 22 in your hand (phonetic).
I I l 23 MR. SMITH: Well, that is not what he said. l
\
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(t')eral Reporters,1nc.
24 I still have the feeling that there is hardly any A !
25 disagreement among us on what theultimate,whatwearereallyll
l 140 l 1 agreeing upon, what we really believe. And we are getting I i
f;
l bogged down in --
2 I
l 31 MR. TOURTELLOTTE: I believe it is desirable to i
( i a have regulations which are reasonably designed to achieve 1 l .
S their purpose. And certainly I believe that people shoule i I
6 have a reasonable time to respond to get an action. l l l l
7' But I also believe, as Mr. McGarry pointed out, i i l
8 that the attorney who is a good attorney is going to be ready j for an adve:se decision. And it really doesn't take all that 9
l 10 much time, and I believe in a definite amount of time, being 11 10 days which is plenty of time to be filing a stay after l l l 12-i the initial decision comes out, assuming that I am wrong on i j i1 I
["N isJ l 13 the evidence (phonetic).
l 14 MR. SMITH: Then there is consensus that a reasonable 15 amount of time should be available to (unintelligible), but i
16 ' there is not a consensus on what that reasonable amount of ;
i 17 time is.
I 18 MR. DIGNAN: That is why I have been saying X, ,
i 19 because . didn t think we would be able to fill a number in 20 t i this.
21 Eut. TOURTTLLOTTE: Well, I think it is important, ,
j- 22 , though, to point out that to me when you say X amount of time, ti 23 you are leas it or'n. ;
i t
<g ;
I want it clear for the record I think 10 days is 4
(_/ 24 j Ace.Fedtral Reporters, Inc.
25 a reasonable amount of time.
}
141 gg 1 MR. DIGNAN: But we are not going to get a consensus . i Q); \ '
2 on 10 days, that's the problem. I i 1
3 MR. TOURTELLOTTE: But it is important to understandj 4 we get a consensus-that a reasonable amount of time ought to 5 be allotted. It is also important to know that I think 10 days i
6~ is reasonable,-maybe Mike thinks 7 is, and maybe Sandy believes! ;
7 20 days or six months.
8 I And I think it is important to let them know the 9 range of what we think is reasonable, as well.
10 MR. MC GARRY: Let me just say, when I came into 11 .
this room, where I was coming from, I thought the rule was '
i
- - 12 I ' adequate; I agree with, Jim in that respect. .
! I
([) 13 ' However, having heard this discussion, people '
l 14 voicing concern about service here, where I am basically coming 15 from is that you should have a (unintelligible) so you can make )
I 16 l your appeal.
j 17 l Again, I think the rules, my experience has been l
18 that'the rules are adequate. If they aren't felt to be ! ,
l 191 adequate,.then we have to come to grips with that. And I .i f
f:
20 ' would say somewhere around 10 days, from my point of view.
j i I
21 i MR. PIGNAN: 10 days from.what? .
i 22 !! . IOR. MC GARRY : From the issuance of the decision. li i: h 23 MR. DIGNAN: Okay. So for an intervenor group
( 24 located in New England you.are giving them essentially at the !
Aes-Federal Reporters, Inc.
~
25 most five days to work with. i
.j
-- - . - - . - - . . ~ . - . - - - . - - . - - - ~ . - - - . . . - - . .
i I
L 142 ;
1 .
MS. CARON:
Or from an intervenor group located in l
} 2 New York you could be given minus three. 4 i
3
,1 MR. MC GARRY:
Where I base my 10 days is,
() '4
_five daysLis reasonable for service, rightly or wrongly. Just I say
- I 5
).
so you know why I pick five. And then I say --
i i
6j MS. CARON: Well, Mike, i
i 7
I would like to have five..j That'is why~I am asking for 20. l 8
MR. BUTZEL:
! Ultimately the time that ought to be 9
l given if you were consistent is the time that it would -- I 10
.there ought to be X number of days which I would agree might 11 very well be five'after receipt for the person.who gets their 12 i i
paper, but the real basis ought to be -- !
i
~
13 l
t Okay,_ assuming that test was made, then the stay l 14 should be until the appeal board has acted. l f.
.i No one is going ;
15 ll to agree to that, >
presumably, but that goes to the logical 16 thing.
i i 17 ! 2 If-the intervenor or whoever it is does his job ,
18 '
i
.of meeting the time schedule'Lunintelligible)1to get a decisioni.
19 j
, you would expect to wait for --
I I 20 i MR. DIGNAN: Oh, I am not so sure I wouldn't -- I i i
21 mn not so sure I couldn' t, at least, agree with you that if X -
22 [
E.CI) t n days -- and I keep using X because everybody goes bonkers t-23 L :
i as soon as 10_or 5 or 20 is thrown out -- !
i l Ej 24 l M l
j yv- ) n mon m inc ;
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,. If within.X days an opponent files his motion, then l 25 j the' construction will not start until the appeal board has y i
l
'l C-
I 143 '
,s
- 1 decided the motion? I am not so sure that isn't acceptable. ,
L
(. 1 2' MR. BUTZEL: I_ think that would be the logic for it. t 3- And then it would be easier, it might be easier'to reach a l 4 consensus on that.
5 MR. SMITH: You are refining it so closely that you 6l are destroy your consensus.
7 MR. DIGNAN: Well, I am trying to think through --
8l 7~ guess, I suppose I am like every other. applicant lawyer, i
9 the reason I like 20 days being the'effect date or the date 10 the permit issues, unless som'ebody is saying 'something, is that j 11 I like to keep the heat on the appeal board to decide it.
12 l, I don't lik'e the idea of throwing them an open-ended ,,
/'% .
13 situation. I may not be upset at throwing it to Rosenthal, '
i 14 Ferrar, and Buck today who is my appeal board, but I don't know 15 who is going to be sitting on my next appeal board, and I may 15 not be happy without some pressure on them to decide.
17 MR. SMITH: Not to mention -- I may have .done this -t I,
18 they have rejected it simply because it hasn't gone through 19 licensing first.
i
! s 20 MR. BUT"EL: That's the one thing that I would like i 21 to add to this (unintelligible) the request would not have to l
() 22 be made to the licensing board first. l l
23 I mean, the licensing board, I would like to give l \ 24 'them authority.
I Aca-Federst Reporters. Inc.
25 MR. SMITH:- That is very well entrenched in the law.
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144
, 1 That is the -(unintelligible) --
'2 MR. BUTZEL: No, you don't have to go in the
~3 district court.
(
-4 MR. DIGNAN: Yes, you do. By (phonetic) injunction. j
.5 By injunction is either denied or granted in a federal.districti 6, court, and you must go back to the federal district judge !
l 7 before you can go to the court of appeals.
8 11R.- SMITH: Under the theory that a decision could 9 be made faster in the forum (unintelligible). And our appeal 10 board (unintelligible), as a matter of fact, in one case they l
11 specifically rejected it cn1 that account alone.
12 MR. MC GARRY: I am in favor of something that O- 13 l speeds up decisionmaking.
14 MS. CARON: That would be a wise move, to give a 15 limited time on the decisionmaker as well. i 16 MR. DIGNAN: Well, that is why I .say the rule has i
17 ' to'be X days.and it goes out, unless it has been stopped.
18 Now, what is! going to make an intervenor unhappy 19 is :Lf you say 20 days it goes out unless it has been stopped, 20 and he goes to the licensing board, and the licensing board 21 sits ~on it 18 days, he is going to be. unhappy. l
('T - l
'il 22' But you could also refine it by simply saying if l i
23 you start at'the licensing board and the licensing board hasn't'
! O- :.
24 given you a decision in X days, you can go to the appeal board.
I Ace Fed Eral Reporters l Inc.
25 In other words, give the licensing' board its shot L,
. - , , , _ , , . - , m . , , - , - . , . , , . . . ,,.
145 l l
I and then send it on up.
('s !
2 MR. SMITH: Of course, the rule as it is, it can r~- 3 be filed (unintelligible).
i (_)3 ,
4 MR. DIGNAN: Correct. l 5 See, I thinx it is a lot of wisdom to this, to the ;
6l feder al rule which is more absolute, that you go to the 7 federal district judge first. I am one of the few lawyers who 8! thinks that is a good rule, but I have thought so even when i 9 I have lust, I mean, I had to go back there.
I 10 Because then you get your shot at a hesitant judge. l l t 11 i MS. CARON: At a what? l i
12 MR. DIGNAN: You get your shot at a hesitant judge. i
<8
' l ,
\/
- 13 If the judge went against you, but really had some doubts, l
14 you would go back to him, you obviously get the stay pending i
! I 15 ! appeal. He will say, " Gee, I will give them that. Let the i 1
16 court of appeals decide whether I should have or not (phonetic) 1 " . ;
J 17 ll MR. SMITH: To go back to the (unintelligible),
I 18 would also require then there be some relaxing of the rule ;
19 that you have to show a probability of success in the field l 20 (phonetic), because that is almost insurmountable when you i
gl i are going back to the person who has just decided against you.
!l ;
(\ 22 11 MS. CARON: That's right.
23 MR. SMITH: It would have to be some relaxing --
(~'g ! i
(/ 24 ! you are trying to do too much. !
l aasemn enwnm. tec. l 25 MR. CHO: Well, let me raise this suggestion: Just i
/
)
l
'146 i 1 coming out with the number of days as representing X, can we
. ()
I '
I 2' lsay some of the f actors that ought to be considered in deter- l 3 mining.what X.is, and just leave the size number open?
4 MS. CARON: John, measuring --
5 MR..BUTZEL: But.if the minimum is seven or whatever i
I 6 it is, and that might -- go with your number, 7, 10.
1 l 7 If that was the lowest, set 10 from:the time that 8 the licensing board was issuing, and the higher is an undefined 9 number which takes into account factors such as do you have to I
10 .go back to the' licensing board; if the stay application is i
11 I filed within the required period, or a required period, should
( 212 you await the action of the appeal bodrd on that?
f l
13 And there is no' consensus on that. The lower one ).
14 was.10, and the upper one which some of us might say --
15 MR. TOURTELLOTTE: An interrogation (phonetic) which!
16 alsc is my previous decision which is that I believe that the I i
17 licensing board has the power to stay the effectiveness of its ;
I 18 own decision. If that isn't clear in the rules, perhaps that i l
19 should be so made.
l l 20 MR. DIGNAN: It is clear they can stay it; it says '
\.
But they can stay it only for good cause !
l 121 so in ' the rules .
L()
- 22 shown.
I l
i !
23 That is why I said at the start, that if there is 24 going'to be intellectually honesty by a licensing board
) Aes Federal Reporters, Inc.
25 . chairman, he'has to go through the Virginia Petroleum tests e . . . . . , - .
n l'
l ,
147 I l
1 because there are a legion of. decision that have defined good l 0- 2 cause for a stay in the NRC as equally the Virginia Petroleum l
l 3 Jobbers test.
4 In other words, he must -- sure, he can stay it, 5 or the board can stay it, but they have got to meet the same .
6 standards to do it.
7 And as I understood what you were saying, you thought 8 that there should be a relaxation of the standards for the 9 . licensing board --
(End of interference from air conditioner.)
10 MR. SMITH: Maybe we are talking about two different 11 things. Maybe we are talking about the equivalent to a TRO 12 and a permanent, I mean, a more or less permanent.
O 13 Anct I rea'lly think we are trying to accomplish ,too i 14 much, because it is, it is very complex, and I don't think j i
15 that in the time we have that the committee approach can do it.!
16 I think that our consensus is that if there is any 17 doubt about the authority of the presiding officer to defer 18 the effectiveness of the decision and the issuance of the CP, ,
19 that should be resolved to make it certain that there is the 20 opportunity to defer for asreasonable time to permit the filing l
21 of the. stay, and we simply can't agree upon how much time there, O 22 is, beginning with a minimum of 10.
l j
i MR. BUTZEL: That doesn't go far enough. I l 23
('
24 MR. DIGNAN: I can't go with that.
f AceJederal Reporters, Inc.
25 MR. BUTZEL: Then we retreating from the consensus v ._ . . . - - .
_. . - _ . . . _ . _ . . _ ~ _ _ - . . _ _ . _ _ _ _. _ .. _ __. _
i 148 l (phonetic).
l l 1 Because our position here is, there ought to be
()
2 something, simple, straightforward in the rules that says it l l
{
3 does not become effective for so and so. And I understood (w
l 4 that to be agreeable to everyone except Jim. I i
5 i MR. DIGNAN: Well, if I didn't say that --
6!' Well, what I think what I would rather do -- I am I I
7 not saying that I will break the consensus. I still think the l l
8 simplest way to do it is to take in 2764 (b) and say the Staff j 9 shall not issue the permit for 20 days af ter the initial 10 decision. Then leave the lawyers to figure out where they 11 want to go, take their shot.
12 The important thing is to give them time to take t'
13 a decent shot somewhere without the bulldozers opera' ting. , i 14 That is my only point. ,
15 MR. BUTZEL: I would describe that as a minimum f I
16 consensus, only in the sense that that -- at least, I sub- i l
17 ; stituted X for 20 b. ause would say that should be 10. ,
l 18 MR. DIGNAN: Yes. I mean, X'for 20 (phonetic). ,
i 19 MR. MC GARRY: And again, so the record is clear, f I i 20 j my position, my experience is that I agree with Jim. But that l '
l i I
i 21 !, is a dissenting opinion, so be it, that I think that the system'
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T- -
'22q work. But if the system doesn't work, then we have to come i
23 to this thing. l
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, (_/ 24 MR. DIGNAN: Oh, I understand that. I think the .
l AwFMwW Reponen, inc. f 25 system works, too. I am saying if you want a consensus, that l l l l !
u
, _. .__i
. - . - - _ . - - . . ~ . . - . ~ . . . - . - - .. . - - -. - .. .. . . _ .
149 isn't going to get us a consensus. l 1- And I can at least give ;
7\q > ~2 to get a consensus, and I have given about as much as I'can J
f n i '
3 share, because I will dissent if there is any talk about
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4 relaxing the . stay _ standards.. .
5 MS. CARON: What?
6 -MR. DIGNAN: I will dissent from any relaxation ,
I*
7 of the stay standards; I think they should be stiffened up.
8 MS. CARON: Now, then, is it possible to get a limit 9 on the time that the licensing board has to decide?
10 MR. MC GARRY: I would like to see one.
11 MS. CARCN: So'that it can go up to the appeal board.
.. , 12 , ,
.MR. BUTZEL: On a stay application?
( 13 MR. DIGNAN: ,Yes. Or you can just leave the rule'the-14 way it is. You can go either place, take your choice. :
15 MS. CARON: Yes, but I kind of agree with Mike.
16 I would like to see -- what did I do?
17 MR. DIGNAN: You didn't do anything, but I want to i l'
18 see if I -- maybe I am just reading or misremembering a rule 1 19 here.
20 MR. CHO: Are you suggesting that if a person goes j.
l 21 to the' licensing board first, there ought to be a time limit !
I e T) 22 within which the licensing board must act?
23 MS. CARON: Yes, so they have a chance at the appeals h 24 Aes Federal Reporters, Inc.
boa'rd. You see, if you are not going to be able to jump to 25 the appeals. board because, as Ivan said, they turn it down if v , ;- . . _ - . . _ _ _ . . - - .
,._m __ . _ . . . . _ . . . - _ . _
l l l p 150 '
.. . 1 it hasn' t gone through the licensing board, then you ought to }
l L (7')' _
L 2 have some assurance that the licensing board won't just use j i l l 3 up that time and' you would be left without a remedy.
, 4 MR. SMITH: Or, to the contrary, if they don't act 1
l 5 within the time allocated, then the thing comes to the 6, jurisdiction of --
7 MS. CARON: Right. That's what I mean.
8 MR. MC GARRY: 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />.
I'I 9 MS. CARON: Boy, you would be a great judge. ,
10 MR. DIGNAN: It says here clearly that you can go 11 straight to the appeal board, you don't have to make a stop i
l 12 at the presiding officer.
i 13 MS. CARON: But Ivan said they turned it down.
- l. '
14 MR. SMITH: That's exactly right, you can go wherever l
15 you want to, the rule is clear on that. But the appeal board 16 has disfavored. accepting them directly.
17 MR. DIGNAN: When did they do that? Since this rule j l
18 was out? .
19- MR. SMITH: Well, how old is.that rule?
. 20 .MR . DIGNAN: The 2788 came in -- May 2, 1977.
21 IG. CARON: That's true.
( 22 i MR. SMITH: Well, then, I don't care, it was still ;
4
[ t j 23 possible under the old rules for a stay motion to be filed at i (f 24 the appealLboard -- I don't know --
l Ace Ftdiral Reporters, Inc.
I 25 MR. DIGNAN: No. Before this rule came down, the L
i
t ,
i i 151 '
I case Davis-Dessie was the law in which they had sent it back.
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2 One was filed, and this is what gave rise to this rule, one i i
(~T 3 was filed in Seabrook, and I argued that they had to go to the f
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4 presiding officer, and the appeal board took the position 5, that would be the more proper way to go, but that they would I
6; take it anyway. And then later this was rewritten to make it ,
I I 7 clear.
8i MR. SMITH: Okay. l l
9 MR. DIGNAN: Now, maybe a decision has come down l
10 under this rule saying we still don't favor them, but I haven't 11 seen it.
, 1 l
12 ! MR. SMITH: .In Davis-Bessie the appeal board said,
(~)
\- 13 >
- 1. ,
as I recalled, and I was on the case, that, sure, you can file i
l 14 a motion for a stay with us, but you should have filed it with )
- ! i 15 the licensing board first because they know more about it.
I i So we are going to deny it until you go through there.
16 l t
17 0 But I'think they recognized that the notion for a l 1 J 1
18 stay was not invalid solely because it was before the appeal !
)
19 l board. It was just in their discretion they thought it should ; !
l i !
20 ' be done first at a lower level. ;
i F i "U "-w, it could very well be that the new rule lays S ll
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\- 22 A to rest any doubt about it. I don't know, I haven't figured I l l !
l 23 l that out, I haven't read it that way, but maybe you are right. ,
1
, em :
- 24 MR. DIGNAN: But I don't see any reason wPV if the i Ace-FM4rst Renners. Inc.
25 rule doesn't put it to rest, then we could couple it with a j j
~ _ . . . . . - . . . . - . = - - . - . . . _ . - - - . - . . ~ . - . ~ . . _ . . . . . - . - - . - . . ~ . - - . - - - . - . .
I 152 l t 1 regulation putting it to rest, saying you can go either place. I
-() 2l I
In other words, what I am saying, is why isn't it j 1
3 fair to.say to the opponent of the decision you get 20 days to 4 make up your mind where to go and how to go there; I think l
-5 that's legit. You can take your shot. If you think the i ,
l 6; licensing board is being more sympathetic, because you think, 1
7 -gee, you know, they had some doubts on this with a dissent, 8 maybe I can get a stay out of it, then you go there; if you 9 think the appeal board is more sympathetic, you go there.
10 MR SMITH: And the appeal board certainly would 11 .have the discretion, if they elected, to say, well, this is a 12 factual consideration, and we are going to send the issue l
, n' ~
. l
- 5) 13 down~to the licensing board for consideration. . j j 14 MR. DIGNAN- Right. And you maybe grant enough of l i
15 a stay necessaqr. -t
. i 16 Because I don't have any problem with putting i !
17 lawyers in the bind of having.to make decisions, tactical l f'
18 decisions, as long as they have got a legitimate amount of time; I
19 to make them.
20 MR.'TOURTELLOTTE: But if you did that, though, you 21 mightalso'wanttoestablishadifferentstandardfortemporaryl' 22 type of order in the event that if you wentito the licensing i
L 23 board and didn' t get the right decision, you go to the appeal i
(-
1
-24 board and get them~to grant a short-term TRO while they ;
h AwFMmt Rumnus, Inc. l 25 . reviewed the matter, j i
l 1
- 7-
-. , ,. - - - -- . . , . - ~ - . . .
i I
153 l 7, 1 of course, that would fly in the face of what you
(_) I i 2 ll are saying about you make your choice and you live with it. I l
! I r')
V 3l But for Sandy's purposes, what Sandy is saying, it '
4 wouldn't be unreasonable.
53 In other words, what you are concerned about, Sandy, 6; is that if you pick the licensing board and lose and they take ,
7 up to 19 days, on the 20th day everything -- l 8l MS CARON: Jim, it is not just a matter of getting i
9 two bites of the apple, either; they have already ruled 10 against you. ;
11 l MR. TOURTELLOTTE: And it also is consistent with 12 what Al says, which is that the licensing board isn't ultimately,
(~)
\/
13 or isn't determinative of the issue, necessarily. .
14 l MR. DIGNAN: Yes, but my point of why I don' t want !
l 15 l to relax the stay standards at all under any circumstances is f i
16 because I am trying not to think like a lawyer, now, but like l:
I 17 a legislator. And I am trying to see what is fair.
18 And I think it is fair for somebody to get a clean !
l 19 ; shot at a stay, trying to get their best shot. But I think it -
l 20 is also fair to the utility to start building that plant as l
i 21 fast as they can,
('h k) l 22 l And what I am trying to do is to accommodate those I
j 23 two interests and say, okay, you are going to get your X days j
("i l
(/ 24 to take the good shot, but if you happen to pick the wrong Aa-FMua Reporters, tnc. l I
25 forum and you boot it as a result, I am not going to have any I
}
154 ,
4 1 sympathy for you.
(q
/ i 2j And I don't think that that is an unfair solution i
3 to the problem, to say that you have got this many days to V
4 get the stay or not get it. And if you can't get one within --
5, MR. MC GARRY: I don't either, and what happens, it j 1
I i 6
I very may well end up that you pick the licensing board and on i t i I I i 7! the 17th day the licensing board says no, you still have three 8 days to go before the appeal board.
l t 9 It may be on the 20th day that the licensing board l 10 says no. Well, then you have lost one day, but you can still l l
11 go to the appeal board, i
12 ! MR. BUTZEL: I would assume the appeal board has
(~) . .
(J 13 inherent power, explicit power to grant the stay themselves 14 at that point if they want.
15 , MR. MC GARRY: Exactly.
! I 16 l t
MR. BUTZEL: You are just taking your risk on having!
l i
17 i the applicant start on the 21st day.
I 18 MR. DIGNAN: And also, to worry about the licensing ;
i I
19 , board sitting on it, let's say, beyond the 20th day, you know, I
i 20 1 and now it to permit, is to attribute to any judge 21 i something that I hope isn't attributable in this agency, and l
'I k'~/)
- 22 li I certainly have cever seen a federal judge just sit on one H '
23 of ' the s e ,
r
(.)) 24 MR. SMITH: Boards are a little bit more cumbersome -
AceJtdtral Reporters, Inc, 25 than judges, you know, and these university people go sailing
155- l 1 off to'the Pacific and --
HC) 2 MR. DIGNAN: Yes, but the chairman can act. You i
i gg 3 could say the chairman could act all alone if necessary.
(_/ . -
4 I.mean, I have never known a federal judge to sit ,
5 on one' of these, and I have done a ' lot of them. Usually'you !'
6 get..them right from the bench. I used to' sit there, and when .
i 7 the injuction came down, said, "I move, your Honor, to stay.
8 the injunction." .And he would say, " Denied."
9 (Laughter.)
10 MR. BUTZEL: But that's what you would hope would 11 actually happen if -- I mean, I am a little bit disconcerted 12 by.the idea -- not disconcerted in the sense of being upset, 13 'but when you are in front.of a judge'in federal court, he 14 makes his decision, you ask him right then and there. I 15 LIf he has doubt, he knows it right then and.there, !
I 16 and he says, "I'am going to grant your request for stay," and-
! e 17] he looks at the othe counsel and he says,."You know, I think ;
! l 18 this raises an important issue and I think they have got to l
19 have a chance to do their appeal." So you know right then.
20 Pad if he doesn't de it, you are right in front of I
21 , him, he says, "I am denying it, go upstairs." And that is how '
22 it happens, i
23 And the problem -- I am thinking out loud -- is herel i
() 24 A a s e a si n .por m s,ine.
you just don't have the ability, you are not right-in front of l )
25 the judge, you are not in front of the board, you are up in
1 l
I 156 I gs 1 New York, down in Washington maybe you have a little better
(_) '
2 chance, but you still don't know.
f
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3 And you are going to submit some kind of paper, I i 4 whatever that takes a little time, and then the board may have il i i
l 5t to, the chairman may have to find the other members if he can ;
1 i
I i 6l or whatever. , j l
7 There ought to be -- I don't think we can put this 8 in the rule, I am not suggesting it -- but it would be nice r ;
9 if you could get an equivalent system: Yes, you are required 10 to go back to the licensing board, but it says right away, yes ;
i 11 or no. That would be one way -- .
i i .
12 ! MR. DIGNAN: No, no, I wouldn't require,you to go !
6 1 k- 13 back. That is the point.
~
l 14; l MR. SMITH: There is another consideration.
i 15 MR. BUTZEL: Yes, well, that's gambling, and I don't I '
16 , object to that, and (unintelligible), but the reason that you I 1 I l 17 ask the guy in federal court there is exactly for the reason I I 18 that the appeal board says ask the guy down below first, because 19 he knows the record, he knows whether there is enough doubt l i
20 there to grant a stay.
l 21nl Now, he may, he has probably made up his mind, but I'i !
22 ylthat is why you are supposed to ask him.
s 23 l MR. MC GARRY: That is why I say, turn it around in l (N -) 24 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />.
Ace Fedsrt! Reporters, Inc, i
25 MR. . SMITH: May I suggest another problem with a j
157 1 very,-very short for seeking a stay, and that is the rule now 2 anticipates that the proponent and the mover for the stay 3 may submit affidavits in support of'it which anticipate facts
{ }.
4 which were not made on the' hearing record, bear appear upon 5 the merits of the stay.
.6' Well, a few days is not really enough time for a 7 person to'take advantage of it.
8 Now, when they have that opportunity, I think that 9 Davis-Bessie case made that point, when they have that oppor-10 tunity to present affidavits and evidence for the stay and 11 they failed to do it, that is a little bit of a problem, too, 12 which was observed'in the Davis-Bessie when the appeal board 0 13 turned down the stay.
I 14 Just complicated it further, but it doesn't antici-15 pate evidence of affidavits that accompany the motion-for a ,
I 16 ; stay.
17 MR, MC GARRY: Maybe I am offbase, but I look at 18 as a stay as a TRO. And then if they grant the. stay, they grant 19 the TRO, but they are going to say, in a very short period of ;
' 20 time we are going to get to this, we are going to get to what i
21 'is troubling you folks, we are going to get to your preliminary,'
O 22 injunction.
I 23 MR. BUTZEL: I think of it as a preliminary.
O
\~/ 24 MR. MC GARRY: You see, that is what I think maybe Aes-Federal Reporters, Inc.
25 most. people do.
i 158 I
1i MR. SMITH: We ll , that is where the confusion is.
2 That should be -- !
(~ 3 MR. BUTZEL. They are really saying, we are going to!
(-)/ l 4 grant the stay until we have a chance to decide the case on I
5! the merits. .
6l MR. DIGNAN: Let's understand what it is. In the !
I 7 federal court system it is called a stay pending appeal. That 8l is what they call it in the federal system.
9 MR. BUTZEL: And it means pending the decision on 10 _
appeal. i 11 ! MR. DIGNAN: That's correct. And that is what you '
i
! . I 12 ! are basically talking about here, except what the appeal board !
i
('T 'l j
/
does when they grant them, almost every time . is then they 13 [ .
l 4
14 single out the issue on which they, which convinced them to i i t i 15 grant it, and they get it decided. And they shorten up the ;
i 16 h briefing time and go. l 4
17 9 But so do the courts of appeals. Our court of i
18 appeals hands out one of these things, and it really means l
19 1 something. Like, you know, some guy was going to build ,
20 something, they then snap down an order that says the appellant's 21 a briefs will be in in 10 days, and respondent's briefs will
/~'% 41 t/
l 22 " be in 10 more days, and we will hear an argument this term.
i 23 MR. BUTZEL: But they don't bifurcate the appeal, t
/~T' l 24 do they? l l A&FMical Rewrters, Inc. !
25 MR. DIGNAN: No. I mean, they just take the case - !
i l
159 l l.
MR. BUTZEL:
l 1 They hear the whole thing.
)' 2 MR- DIGNAN: -- real quick. And that is what the ;
3 appeal board'does. '
() 4 MR.-BUTZEL: Then, that I think is what it should lI J
5 be. !
i 6 MR. CHO: Now, where are we from the standpoint of l
-7 our report? I 8 MR..DIGNAN: I still would like to just see it '
I 9 handled, just to put a proposal for us, is hhat what we do is 10 alter 2.764 (b) to say that the Staff will not issue the permit 11 fGr 20 days after --
12 , MR. BUTZEL: X days. .
. i l
()
- 13 , MR. DIGNAN: Excuse me, X days after the decis, ion, 14 and then --
15 l MR. BUTZEL: Unless good cause, unless the licensing l'!
I 16 board --
17 MR. DIGNAN: -- right within the same ambit of the l ,
i 18 rules, let everybody take their shot when they think they ought! i 19 to'take it.
20 MR. BUTZEL: Then there are going to have to be some
-21 additional comments. That is the consensus, all right, but i
( )- 22 then there has to be some notation that X can range anywhere i
l l 23 from 10 days, which is -- you know, minimum some people feel , ,
! I
() 24 AnFwee anamn. Inc.
.very strongly about that is the maximum amount of time that l l
25 'should be granted, to longer periods that would allow for the i
- . . _ . _ . . ~ . _ . . , _ -
.. _ - . _ __ - . _ . _ _ . - - _ _ _ _ _ . _ _ _ . . ~ _ _ _ - _ .. _ ._. ._ _ _ _._ _ m- _ . _ _ _ . . ._
160 I es 1 appeal board to render-a decision after the thing has been l
.V 2 expedited.
{) 3 MR. TOURTELLOTTE: You know, come to think of it, l
4 'I don't think that is terribly important, because if we are j
5 going to suggest a change in the rules along these lines, the 6 number of days is already established there, and the change is 7 going to suggest some number of days to change to.
8 And then you can put the rule out for comment by 9 the public, and this is when all die public is free to say 10 whether_they think it should be 20 days or six months or 10 11 days. )
12 MR. BUTZEL: But I think we ought to state what we C:)
13 think the factors are for reason's. ,
14 I understand Tom to be suggesting the rule would be 15 changed by saying that the Staff will not issue the permit any l 16 sooner than X days after the decision, or any later than Y ,
17 days.
1 18 MR. DIGNAN: I don't even care about the later, ,
I i 19 because Howard Shapar informs me that the Staff has never j 20 paid =any attention to that command and never*will.c I
21 (Laughter.) ! ,
(N
}
\- 22 MR. DIGNAN: And they won't. Well, if the Staff l l i 23 honestly thinks' they have got a safety problem they have just I. i
- l. 24 discovered up there, they are not going to listen to any I Aca-Fcd2ral Reporters, Inc.
25 regulation that tells them you shall issue a license in 10 i
. ~ - _ . _ _ -._, . _ , ,_ _ _ , _ . . . _ . - . . _ . . _ . _ _
_ _. . . . _ . . _ . _ _ . _ . _ , _ _ _ . . ~ . _ . _ _ . _ _ . _ _ _ _ . _ . _ - . _
l-l I i 161 1
1 days, they are just not going to issue it. , I
~
L 2 MR. TOURTELLOTTE: There is also another section i 1
y 3 that says that'before you issue a license, you have to have 4 reasonable assurance that it can operate a safe plant (phonetic)' . )
5 MR. DIGNAN: So'what we could do is to put it in i 6; words, is 2.764 (b) .
i 7 MR. CHO: But I thought Al's point' was in determining.J 8 X, you either have 10 days, or some longer period, but the i
9 longer period would depend on certain factors. f 10 MR. BUTZEL: Some people believe that 10 days should 11 , be the maximum, and other people feel that effectively as long as the procedure goes quickly, it should be until the appeal 12 l O'
13 board acts upon that request for a stay.
l 14 That is as far along as I think is necessary. !
15 MR. TOURTELLOTTE: Licensing or appeal.
f h 4 16 H MS. CARON: That doesn't quite fit together. l l
17 '; MR. DIGNAN: I just wanted to put an X -- I am l l
18 staying'on X, because if I say anything -- l i i 19 l MR. BUTZEL: Okay, okay, all we are doing is defining l l l 20 ! disparities in opinion as to X, just to give people an idea i
21 n of upon.the one side is X would be acceptable at 10 days, I i
' ()
l
~
224 4
i mean, but that wouldn't be acceptable to me --
i i
23 MR. DIGNAN: Bargain lower, say five (laughter.) { ,
/' i 24 MR. TOURTELLOTTE:
It shouldn't be less than 10 l ;
AeFMwat Rmorters, tec. '
25 days, end the upper limit is undefined.
i ,
l 162 MR. DIGNAN: l 1 Well, I don't like going that way; I
-( / I 2 really don't. If you are saying it shouldn't be any less than,' ,
ls i
3 I will say it shouldn't be any less than three days, and the 4 upper limit is-undefined.
l l 5 VOICE: (Unintelligible.) ,
1 ;
6l MR. DIGNAN: That is the point. .That is why I I l
7 want to leave it X.
8 MR. SMITH: Why don't we just use the explanation 9 of what the time is for.
i 10 VOICES: (Participants assent.)
11 MR. DIGNAN: And the other thing, at least, my I
1,2
! going along with this consensus is on the basis that this applies 13 to. construction permits only.
14 MR. BUTZEL: I think that we caid that there is no 15 I
consensus on operating permits. SoIwillsaythatthisapplieb 16 to construction permits only.
17 MR. CHO: Well, the charter, the study is on con-t
-18 struction stays only anyway, so whatever recommendation we
'17 come up with applies only to construction stays. f I
20 Well,'okay, now what is the next point we would likei l
i 21 , to make in our report? j l I 22 l MR. MC GARRY: That was it. ;
I 23 MR. DIGNAN Well, did we get an agreement that there
( l 24 was no agreement on Option 7-A? ,
l _ A*Feercl Rmorters,1N, i 25 l(End Tape 5.)' l l
l
- - + --w, n- ,
F 163 I M. . CHO: All'right.
13 l V 2 MR '. DIGNAN: No consensus on on 6-A.
I 3 MS. CARON:
i g B, or C. l l V 4 MR. BUTZEL: No. No consensus on 6-A, and it was 5
generally agreed that 6-B and 6-C were not worth pursuing.
6 MR. DIGNAN: Right. I 7 Okay, now how about going to 7?
MR.. CHO: .
8 MR. DIGNAN: You know, on 7 we discussed A and B !
9 and D, and maybe just because the answer was so obvious we !
10 did not discuss 7-C as a separate topic. l II MR. CHO: All right, taking A',; B, and D, I understood 12 our earlier discussion was that neither of these alternatives 13 are worth pursuing; is this correct?
'I4 MR. BUTZEL: On 7? l 15 MR. CHO: Yes.
I0 MR. DIGNAN: I thought we decided in A, other than I7 possibly writing the so-called Seabrook into the regs where 18- .everybodywwould know what it was, rather than just being in the 19 common-law decisions, the rules as-now interpreted allow all
'20 of the* interlocutory appellate room that is needed.
2l MR. CHO: Is this everybody's view?
22 MS. CARON: I don't know how much they allow, Tom.
I 23 What did you get out of the Seabrook?
24 MR. DIGNAN: Well, the point is, prior to ALAP 271, Ace-Federal Reporters, Inc.
25 the' rule' was there was no interlocutory appeal of anything othe::
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164 I
than that one given in the section about issues, of intervenors 2
being excluded or included, 3
In that case, we hung our hat on a regulation which p/
y 1
4 talked about certification and said that, well, everybody l 1
5 thought of it as certification up from the licensing board, 6
but in fact,the Commission has'the power to order things 7
certified to it. And since the appeal board stands in the B
shoes of the Commission, the appeal board may order certification.
9 And then we went on to argue this doesn't have to 10 be sua sponte, and we are bringing it to your attention, it is 1
11 not an appeal we are asking you to certify.
12 And they held that such a petition was legitimate, j 13 because it wasn't an appeal or an attempt to ap' peal a,s a right I#
which would have violated the reg on interlocutory appeals, 15 but that they could direct certification, and it could be 16 brought to their attention by a party.
I7 What it amounted to is creating a method for getting 18 to the appeal board on an interlocutory basis, but giving them I9 their total discretion as to whether they are going to take it 20 ~
or not.
21 And what it did is supply you with something when q
- V 22 the licensing board refused to certify, that you could bring 23 it tc the appeal board's attention, m'
24 And I am just suggesting for all the reasons that Am-Federal Repo,ters, Inc.
25 Mr. Smith:said it, as well as others, that I think that is L
I
165
! I enough interlocutory ability. I don't think there should be
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2 interlocutory appeal as of right.
l 3 MR. BUTZEL: I have a different -- I don't think we 4 will have a consensus, though. I think there is a consensus.
5 I am moved by, and think what Ivan said regarding ;
6 transfer of power in a sense from the licensing board to the 7 appeals board, raises some difficult issues. But if that is 8 true, and none of us here, or the general consensus don't 9 necessarily want to support that --
10 But if it is true, then it seems, from the point of Il view of people who want early determination so that they know l
12 where they stand as,early as possible before commitment to
/~N kJ 13 resources are made; one would encourage more interlocutory a 14 appeals of certified questions.
15 MR. DIGNAN: It is one thing to say that you are 16 going to encourage them, it is another thing to say that you 17 are going to write a regulation. !
l' 18 Because, as I said, they are dependent on the 19 attitude of the judges involved unless you are going to make 20 an appeal of right.
I i
I 21 MR. BUTZEL: I guess they can't make an appeal as
() 22 l
l\/ of right interlocutory -- '
\
l 23 MR. DIGNAN: Well, you could, but I think it would l l
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(,/ 24 be a bad thing. I pce-Federal Reporters, Inc, 25 MR. BUTZEL: We have an interlocutory appeal statute
166 1 regulation on'our siting law. Everyone takes the interlocutory
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\# 2 appeal, and the Commission sits tnere and decides whetheriit i 3 is going to take them or not. And it' applies the standards, 4 says this isn't important enough, and throws it all, that's )
l 5 all.
l j
6 We don't have to ge to the --
l l
7 MR. DIGNAN: Well, that is what you have now on 8 directive certification.
9 MR. BUTZEL: Well, that is what you describe and j 10 say we have got, but it sounds to me like a"relatively ,
I 11 cumbersome procedure.
12 MR. DIGNAN: No, that's not fair. There is a lot l 13 of them up there. A lot of them 9 up there. Not very many 14 of them get granted, but a lot go up. j i
15 MR. BUTZEL: Well, then, why con't we just -- if I 16 you think it is there, why don't we just straighten out the 17 rule: no interlocutory appeal shall be grantad, permitted 18 unless --
19 MR. DIGNAN: What you have to do is write directive 20 certification in.
21 MR. TOURTELLOTTE: What Tom is talking about is ,
( 22 putting the Seabrook rule into regulatory form, or into a rule l
.23 form, and putting it right in the regulations-so that nobody
' (~)
's, 24 has to' read Seabrook to find out how to get directive cert.
l Ace Federal Reporters, Inc.
(Interference from noise from air Conditioner.)
j 25 MR. BUTZEL: So directive cert would accomplish
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l 167 !
l 1
1 that and do the same thing as an interlocutory appeal for the l
2 reason that I am familiar with, does, which is effectively -- j 3 you can take one, but if you do, the Commission or the appeal 4 board will decide whether it is going to accept it or not 5 based on any standards.
6 MR. DIGNAN: Yes, okay. Be,cause when I think of j 7 an. appeal, I think of it as being of right. And your appeal 1
8 is not of right.
9 MR. BUTZEL: It is of right, but --
'10 MR. DIGNAN: But it is a petition for cert.
II I MR. TOURTELLOTTE: You have an appeal which is of 12- .right, but its reception is deeply dependent upon the discretion i
.U 13 upon the persons to whom it is directed (phonetic). !
I I4 MR. BUTZEL: I think in our case, the standards we 15 are trying to set forth'there, would have to be on issues that
].
i 16 would have substantial impact on the conduct of the hearing,
! 17 and (inaudible).
18 MS. CARON: Now, we have sort of addressed the I9 (unintelligible) of A and B. That is, we are not going to do 20 A, but we are going to do B more often, right?
21 MR. DIGNAN: No, I don't think you are going to do n
22 it more often.
23 MS. CARON: We want to make it more explicit that 24 B can be done.
Ace Federal Reporters, Inc.
25 MR. DIGNAN: Yes.
. _ _ _ _ _ . . _ _ _ - _ _ . . = . . _.__.__.___.__._.._.___._.___._._.m._.... -
l 168 I MR. BUTZEL: Well, that's the issue, though. That j O 2 is the real question. How do you deal with the problem when 3
you -- I believe most people agree that there are some very O'
4 serious consequences if more and more decisional power is taken i
5 away from the licensing boards, just in terms of their. ability 6 to ma_ntain good personnel.
7 MR. SMITH: I believed B as the consensus being 8 that there should be no impediment upon a licensing board to 9 certify if they elect to.- It doesn't require regulations 10 (unintelligible), because otir statement of what we believe II to be a salutory situation --
12 I also felt, however, to balance that out, that O
%/ 13 the person who certifies should also have a termination by the . 1 14 licensing board before it certifies. This isn't a regulation, b
15 a policy standard (phonetic).
I0 (Simultaneous conversation. )
I7 MR. DIGNAN: The only change I would make is to l 16 i take the Seabrook. rule and stick it in the regs so that every l9 lawyer -- one of the gripes of a lot of lawyers who come to 20 this Commission for the first time is they don't have the 21 decisions of the appeal board, they don't have the service. l 22 And they read the regs, and there is a lot of common , -
i 23 law'that has gotten in on it.
- 24 And that is all 1 am saying, really, take the Seabroo t ,
l Ace Federr) Reporters, Irte, 25 ' rule, print it in the regs where everybody can read it. And )
i
n t-l
- e 169
! I otherwise leave the system as it'is.
O ,
2 MR. BUTZEL: I just don't know. It seems to me, 3 from'myjpersonal point of view, the decision is going to be 4 immediately effective subject to 20 days, and that is what we l 5 are. working under (phonetic). ' But I still got to go through l l
6 the. appellate procedure or:into the court internal to our j
l 7 procedure (phonetic).
8 The clients want to have as much decided in advance 9 as possible -- certification.
10 MR. DIGNAN: 'Okay, that's right. What I am saying 11 is, then there is no middle ground here. You either leave it l
. 12 essentially the way it is,
- where there is appellate inter- -
1
, m .
13 locutory appeal, you rewrite the reg that way, which will 14 stick in some people's craw; or you take the Seabrook term of 15 directive certification which won't stick in anybody's craw. j 16 Or , in the alternative, you make the interlocutory 17 appeal to the decision on the merits a matter of right. And 18 I don't think you are going to sell that one, and I don't think 19 you should sell that one, because what is going to happen is ;
l !
20 that the appeal board is going to be so choked up they won't be i 21 able to get out of their own way if everybody has a right to
~
A- 22 trke every ruling --
t 23 MR. BUTZEL: I agree with you, as of right, and 24 interlocutory can't work.
fce Feder:4 Reporters, loc.
l 25 MR. DIGNAN: Because there is no middle ground; L _
{
l
[ 170 l
l 1 you have to go one way or the other.
O' 2 MR. TOURTELLOTTE: I don't really see how you can
- - 3 just simply endorse as kind of a blank statement we ought to !
4 certify more questions. l l
L 5 MR. DIGNAN: I don't think we can.
6 MS. CARON: Absolutely not. I i
l 7 MR. DIGNAN: I thought we had covered A and B. l 8 MR. TOURTELLOTTE: There are cases, I think, the i
9 issue that I have to take up is the most important thing that 10 has ever come across the desk', you know, and people disagree II with me. But I was still not in favor of changing the --
12 I mean, what does it mean, anyway,. certify more
) 13 questions? It is kind of a --
14 MS. CARON: Whether they are good or bad?
i 15 MR. TOURTELLOTTE: Yes.
16 MS. CARON: Well, why don't we just reflect the 17 availability of the process that was endorsed in Seabrook, 18 and not tell people whether they certify more questions or !
i 19 not? i I
20 MR. BUTZEL: Well, there might be a policy 21 (unintelligible).
22 LMR. TOURTELLOTTE: You might -- we talke/ earlier l 23 about the reluctance both on the part of some licensing boards l'
) 24 to certify, and the. reluctance to accept certification by the
' Aas-Federal Reporters, Inc.
25 appeal boards. And 7 guess that is -- there may be a legitimate
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r i
171 i 1 question as to whether past practices have been too inflexible
.2 toward certification. Essedtially I have no opinion on .that.
3- The problem is, is it is variable as the licensing
- 4 board chairmen and the' appeal board feel (phonetic). .j I
5 MR. DIGNAN: I suppose.the one improvement you could 6 .make in it, although I am'not sure of improving it much, is 7 that you could say that the appeal board had to accept for 8 certification any question which the parties unanimously 9 desired to certify.
10 Because at that point, when the licensing board II has certified and all the parties are agreed it should be i i
12 certified, whether the. appeal board thinks so or not, a fair )
O
- i 13 number of legal minds at that point have decided,this is a 1 14 question on which a lot of the future of the case can turn.
15 Because you are very rarely have a utility, frankly, 16 that is probably going to want a question certified when the 17 intervenor also wants it certified. And when all the counsel !
1 18 -have agreed that the darn thing ought to be up there and the l
19 licensing board has put its endorsement on it being up there, .)
j 20 boy, it-seems to me they ought to do it.
21 Maybe we ought to say they have to accept anything ,
j O .
22 the licensing board sends them, take away their ability to turn i 1 23 down certificat d ons that the licensing board has sent up on I p -
24 its own motion or on the request of the parties. !
- Ace Federal Reporters, Inc. I 25 MR. MC GARRY: Of course, you know the problem there
- a
l i
172 i 1 is -- I like your first idea, though, and that is consensus ;
2 of the parties and the licensing board.
1 p 3 But then is there a variation on that theme that
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4 if anything the licensing board sends up --
5 MR. DIGNAN: I know what your worry is, and it is 6 (unin telligible) .
7 MR. SMITH: I think we ought to keep it soft.
l 8 (Laughter.)
9 MR. SMITH: I mean, they.
I 10 MS. CARON: Ivan, you are so honest.
Il MR. CHO: The first suggestion here is if all the l 12 parties incluSing the licensing board agree, then the appeal (U- ' l 13 board must accept. Is there a consensus on that idea?
~
14 VOICES: (Participants assent.)
15 MR. CHO: Now, do you want to comment on 7-C in 16 our session?
17 MS. CARON: Yes. I want to know why it is e 18 obvious that we didn't talk about it.
19 MR. DIGNAN: I thought it was obvious because my 20 first question when I saw it is what is the mechanism, and 21 then I really began to contemplate -- this is an ad hominem
)
22 argument, all right --
l 23 The present make-up of the Commission, and I am
/\
V 24 not sure I want them down there every day beating on licensing Ace Federst Reporters, Inc.
25 and appeal boards. Because they very rarely get a consensus i
1
173 n 1 on s6me of these issues themselves, and the whole concept of U 2 the hearings being subject to sort of daily inquiry by tne p 3 Commission worries me.
LJ 4 And if what instead we <re going to do is interject 5 some new group, like opinion wri' ;rs at the SEC to sort of 6 saunter around the hearing room to report back to the Commission, 7 I don't want that either, because there again is some faceless 8 character that I can't argue with or fight with.
9 MR. MC GARRY: I would not be in favor of C. If 10 the Commission wants to get involved, just like Commissioner II' Gilinsky did, go sits on Palo Verde.
12 MR. DIGNAN: I think Gilinsky decide'd that was going O
kJ 13 to be a rough one or} appeal, and he was going to get himself 14 taken out of it.
15 (Laughter.)
l 10 MR. TOURTELLOTTE: I think it interferes with 17 separation of (unintelligible), and that is what they have l
18 licensing boards for. And I don't think that the licensing 19 board ought to have to be, ought to have to put up with that
~ '
20 kind of over the shoulder --
2l MR. MC GARRY: I agree.
p]
22 MR. DIGNAN: I would just like to hear a definition 23 of the mechanism. Maybe there is something I could go along 24 with that I hadn't thought of, but I just don't understand Sce Federal Ceporters, Inc.
25 what tne mechanism would be.
4 I
174 (
l
'l I-am'sure it isn't going to be that the Commissionerd 2 are going to ride circuits.
3 MR. TOURTELLOTTE: The Commission would appoint a
() 4 licensing board shepherd who would stand behind with his staff i
5 .in hand.
6 (Laughter.) [
7 MR. SMITH: They already do this in a very kind of 8 informal way. And I don't think it means anything for us.
i 9 MR. CHO: Yes. And I think C is directed more to 10 internal procedures more than regulations.
11 Well, let me just say that I will try to report 12 what we discussed as accurately as I.can tomorrow.
- ,m iss) 13 Bu't everyone here will be given a chance to'make 14 their own statement if they think that anything I have said :
15 is either inaccurate or inadequate.
i 16 So, with that, I think we can close the session. l 17 I would like to thank all of you for a very good 18 and lively.and meaningful discussion.
19 -(Whereupon , at'5:15 p.m., the workshop was concluded.)
20 21 l h ' 22 1
23 24 Ace Federal Reporters, Inc.
2:
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