ML20196K450
| ML20196K450 | |
| Person / Time | |
|---|---|
| Issue date: | 10/19/1979 |
| From: | NRC - ADVISORY COMMITTEE ON CONSTRUCTION DURING ADJUDICATIO |
| To: | |
| References | |
| NACCA, NUDOCS 9903260216 | |
| Download: ML20196K450 (188) | |
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MUCLEAR REGULATORY COMMISSION
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I I IN THE MATTER OF:
12TH MEETING OF THE ADVISORY COMMITTEE ON NUCLEAR I POWER PLANT CONSTRUCTION DURING ADJUDICATION OL .
E Place . Bethesda, Maryland 5 Date - Friday, 19 October 1979 Pages 1 - 187
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CR7706 1 1
UNITED STATES OF AMERICA b
V 2 NUCLEAR REGULATORY COMMISSION 3
12TH MEETING OF THE 4 ADVISORY COMMITTEE ON NUCLEAR POWER PLANT CONSTRUCTION 5 DURING ADJUDICATION 6
7 4*
Room 450 8
East-West Towers 4350 East-West Highway 9
Bethesda, Maryland i
10 Friday, 19 October 1979 11 The Advisory Committee met, pursuant to notice, at 9:25 a.m.
4 12 PRESENT:
l 13 MR. GARY MILHOLLIN, Chairman (O/ MR. JOHN FRYE 14 MR. CARL KNIEL MR. BILL LOVELACE 15 MR. TED QUAY MR. STEVE OSTRACH 16 MR. GEORGE SEGE l MR. MYRON KARMAN 17 MR. JOHN CHO ,
- MR. BRUCE BERSON l l 18 19
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24 era neoonen, inc.
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CR 7706 2 MELTZER t
,-1 mte 1 1 PROCEEDINGS 2 (9:25 a.m.)
3 MR. MILHOLLIN: This meeting of the Advisory 4 Committee on Construction during Adjudication shall come to 5 order.
6 Ted, would you like to give us a status report?
7 MR. QUAY: Okay. What I've handed out this morning a
8 are two segments. The one with the staple through is, in 9 essence, a second draft of Section 1 and Section 2, which are 10 very near completion. The other, which has a clip on it, is 11 Section 3. It is essentially, ror all practical purposes, 12 the first draft of that section. When I say first draft, it
(~N. 13 was the first CRESS draft of it, with a couple of minor O
14 exceptions, such as Section 3.5 and 3.10, wh_ch had already 15 been through CRESS once. But for all practical purposes, the 16 paper-clipped section is pretty much all new. I 17 There ara blank pages in the first segment, and 18 those were intended to be left that way for figures that 19 will be supplied at a later time, such figures as cash flow j 20 figures for all the various cases, j i
21 There are several missing items from the first P
22 section which I might go over -- do you want me to go over l
l 23 what's missing?
24 MR. MILHOLLIN: Sure, so people can simply append ;
wW Regnners, foc. j 25 to this the things that haven' t been included in it.
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c- MR. QUAY: Gary, you owe me some stuff in addition L] 2 to page 7, which is pulling forward some materials from 3 pages 16 and 17. There as some difficulty on page 28 with 4 a table and that was to be resolved. There's no resolution on 5 that yet. When I say 28, I should check this --
6 MR. MILHOLLIN: Excuse me, Ted. You're referring 7 to the stapled one now, right?
8 MR. QUAY: Yes. As a matter of fact, ins +.ead of 9 page 28, it should be page 39 now. We have jumped that much.
10 I will give you the page at a later time on the first one.
II Alsv. there was an explanation of several tables-12 that was on the old page 39, Gary --I don't know where that 13 is extended to now -- that you were supposed to put a paragraph
)
I'- in also.
15 My head is hanging in shame.
MR. MILHOLLIN:
16 MR. QUAY: Okay. Item 2.5.1, which is apparently 17 a summary of the interviews with the Commissioners, that's !
18 on page 137. CRESS has made a mistake and not entered that l
19 We don't have it and I guess you're '
l particular item in there.
l I
- . 20 doing that, is that correct, Steve?
l l
, 21 MR. OSTRACH: The same applies to 2.E.2.
22 MR. QUAY: 2.5.2 is there.
23 MR. OSTRACH: I thought I was also going to be ,
24 providing a little summary to put in there.
A w9 Reponen, Inc. l 25 MR. MILHOLLIN: 2.5.2.1.
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1 MR. QUAY: Okay. 1 2 MR. OSTRACH: _Okay, 2.5.2.1, 3 MR. QUAY: Okay, 2.5.3, Gary, John Frye and 4
Steve are to provide various portions o f that, that summary i 5 of interviews of members of the appeal panel. That's on 6 page 140.
7 MR. OSTRACH:- I'm sorry, that's what I was talking.
8 about. My apology.
9 MR. MILHOLLIN: Yes. We were talking about --
10 MR. OSTRACH: I didn't know that you had the 11 licensing panel between the Commissioners and the eppeal 12 panel. What I am supposed to be doing is 2.5.1 and 2.5.3. I
(} .13 guess it will be .2.
14 MR. QUAY: Would you like that order changed? Shall 15 we go Commission, appeal panel, and licensing board? I would 16 think that would be more sensible, wouldn't it?
17 MR. OSTRACH: Yes.
18 MR. QUAY: Okay, I'll make that note.
19 MR. OSTRACH: I see that 2.5.3 tis assigned to
.. 20 "Milkhollin" and Frye.
.21 MR. MILHOLLIN: I hope those two guys send us 3
22 something.
23 MR. FRYE: Never heard of them.
24 MR. OSTRACH: How come when I owe something you've
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3 25 got it neatly written out?
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mta 4 5 1 MR. QUAY: 2.6.2 has just been supplied. 2.6.1, 2 I guess you are writing those up?
3 MR. MILHOLLIN: I've been. informed by Burstein that 4 the version of his remarks I gave to you is correct. He I L didn't have any changes. So we now have the final version of 6 all his interview reports, with'no summary.
- . 7 (Laughter.)
8 But don't we have -- didn't you write something on 9 that?
10 MR. QUAY: No', we wrote a planning section 3.9.
11 That was completed, but'not in this form here.
I guess what 12 we could do is just add just a small paragraph in there
,() 13 referencing that section, and I'll'take care of that.
14 MR. MILHOLLIN: Okay. 1 15 MR. QUAY: While we're on the subject, Shannon was ;
l i 16 contacted. He preferred not to have Bechtel referenced in 17 tnere. Ite alternate which we discussed may be a footnote or i i
18 something stating his position that manager of energy planning o
19 or architect-engineering firm -- we can work out the language.
. 20 That's a preferable alternative to him, so at least it somehow 21 qualifies his credentials and why he was asked for comments on t
l 22 it.
23 MR. MILHOLLIN: All:right.
1 24 MR. OSTRACH: Ted, on the appeal panel summary, hei neoonws, Inc.
4 25 which is now 2.5/3 and will become 2.5.2, you don't have any ,
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f~ 1 language about the interview reports are in appendix such and
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2 such?
3 MR. QUAY: I have omitted that.
4 MR. OSTRACH: Intentionally?
5 MR. QUAY: No.
6 MR. OSTRACH: I was just saying, if you.do that, H 7 I guess that will make.the appeal. panel Appendix N and present
! )
8 Appendix N, which is the licensing panel, would become )
l 9 Appendix 3. l s
10 MR. QUAY: Okay, I'll make that.
11 MR. MILHOLLIN: We'll need another appendix for the .
12 planners.
l
() 13 MR. QUAY: That will be Appendix P. Okay, thank !
14 you.
15 MR. MILHOLLIN: While we'ra on that subject, 16 John Frye, have you heard anything from Alan Rosenthal?
17 MR. FRYE: I haven't' heard a word, which indicates 18 to me that he probably approved it. But I'll check with him 19 just to be sure.
l
! I
- l. 20 MR. QUAY: 264, which is on page 141 --
21 MR. MILHOLLIN: Before we leave that subject, 22 Steve, have you had a chance to work on the other interviews 23 with the appeal board members?
24 MR. OSTRACH: No, but that's not a very big job.
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25 I had to choose between doing that and doing 3.7. 3.7 was a i i
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mte.6 7 1 lot' tougher. That will be easy to do.
2 MR. QUAY: The next page is 2.6.4. Steve, I gue.is 3 you're going to supply that?
?
4 MR. OSTRACH: As I said before, I'm holding.off on 5 that as long as poseible, hoping I'll have'some more 6 Commission'information.
~
e 7 MR. QUAY: ~That'one's easy becaus? it's an add-on 8 right to the end of the section, except for the page-numbering 9 after that. q
'10 MR. OSTRACH: Why don't you just give me a certain l 11 number of pages, just assign me pages 141 and 142, and I'll 12 give you a two-page summary?
() 13 MR. QUAY: What if I assign you seven pages?
14 MR. CSTRACH: I'll give you seven.
15 MR. QUAY: You'll give me a seven-page, summary, 16 okay. No, I'm not concerned about that. I think the page-I 17 numbering will fall out in the wash, because we'll be adding 18 pages elsewhere.
19 That's all I had on Section 2. ;
l*
20 MR. OSTRACHf 'hapter 27 21 MR. QUAY: You want to call them chapters or 22 sections?
23 MR. OSTRACH: I don't think it matters. I don't 24 think we ever refer te large units like that. We always a n.corws, inc.
25 refer to t he little things , and they're certainly sections. ;
- i. l 4
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MR. QUAY: Okay. (Mi Section 3 or Chapter 3, we now 2 have 3.3 from Steve, and that's, I believe, referenced --
3 MR. OSTRACH: It would go on page --
J
! 4 MR. QUAY: Page 153. .
- 5 MR. MILHOLLIN
- Okay. ;
4 6
]* MR. QUAY: The 3.4 writeup in there was the latest i !
i, 7 thing, and that was supplied by John during the week and was a
8 typed by CRESS just recently. So that should be considered 9 the latest version of 3.4.
4, 10 MR. MILHOLLIN: So that's 10 what, John, 10/15 or i
11 something like that?
j 10/16, 10/17? !
4 12 MR. FRYE: Something like that, 10/16.
i 13 MR. MILHOLLIN: So that's supersedes everything
}
! 14 before that?
/ 15 MR. QUAY: Yes. I think we can just consider that 16 the latest version. 3.5 is the latest version.
17 MR. MILHOLLIN: What page is that o n?
18 MR. QUAY: That starts on page 174. If you look 19 at the agenda, that would satisfy Item C on the agenda under
, 20 note, reference options 3, 4 and 5. That would be the latest 1 21 version on that. 3.6 was not entered in this copy. Gary, 22 you're going to be discussing that?
23 MR. MILHOLLIN: Yes, John and I discussed that, 24 and the reason for not putting it in was that I thought Aggpesmoorwn.w.
25 perhaps the writeups on stays could discuss other changes in l l
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l mta 8 9 1 in the criteria, and I thought we'd talk about that today.
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2 I have suggested another change which you might l
1 3 evaluate in the option material I passed out. But a lot of
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4 that material will go in because it's especially useful for 5 describing the present system in both cases, describing the 6 present system of stays and the present system of proceedings 7 other than direct reviews. So far as I know, we don't have j 8 anything in the report which describes the present system, 9 do we, John? John Cho?
10 MR. CHO: I don't believe so.
Il MR. MILHOLLIN: You have a good introduction in 12 both, I think in both of your writeups, which explain how the I
(J 13 present system works. And we will need that, of course.
14 MR. OSTRACH: Are you talking about 3.7 as well 15 as 3.6?
j 16 MR. MILHOLLIN: Let's see, 3.7 --
17 MR. OSTRACH: You haven't seen anything on that
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18 yet, j i
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19 MR. MILHOLLIN: Yes, we do. You should have 3.7 !
- l. 20 and 3.6.
l 21 MR. OSTRACH: 3.7 is my section.
l 22 MR. MILHOLLIN: Oh, I'm sorry. I'm talking about l 23 3.6, excuse me.
4 24 MR. QUAY: There were two segments of 3.6.
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25 MR. MILHOLLIN: I'm confusing the second segment i
._ - . . _ . _ . _ _ . _ . . _ __._ _ .. ._- _ . . _ - . _. .. m i ,
L mto'9 10 I~ I of 3.6 with 3.7.
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.2 MR. CHO: What I did in the second part of 3.6, 3
appellate' procedures,.I sort of left some pages to be filled 4
in if that approach is to be followed. You could have a 5 separate section, also.
6 MR. QUAY: 3.7 I guess Steve is to supply, and 7
- you're close to supplying that?
8 MR. OSTRACH: Yes, I'>n close to supplying it. But 9
I think I would'very much like it if I could spend some time 10 either at a meeting or you-people could-call in your comments Il to me, because I'm very unsure about whether the direction 12 I've taken is the right one.
1 .
13 MR. QUAY: Okay. Has that been distributed yet?
I# MR. OSTRACH: No.
15 MR. QUAY: When it's distributed, you want 16 everybody's comments on it?
! I7 MR. OSTRACH: Yes.
18 l
MR. QUAY: -That pretty much completes what we've
- l i
I9 got to date, with one exception, Gary -- !
. 20 Excuse me a second, Ted.
MR. MILHOLLIN:
21 John Frye, on number 3.8, what version is that in 22 the CRESS materials? Is that the same version that we all 23 have?
- 2d MR. FRYE: No, that's a new version that was given si neporwes, Inc.
25 l to Ted on Wednesday. So that's new.
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I MR. MILHOLLIN: So that should be 10/16/79?
2 MR. FRYE: Yes, 10/17, actually.
3 MR. MILHOLLIN: Is there anything else in here 4
that anybody has supplied recently that we should all know, 5 that supersedes other things? ,
l 6
MR. FRYE: Yes, you would probably want to look at I 7
, my section of Chapter 2, which is 2-point-son:ething.
I 8 MR. MILHOLLIN: Oh, yes.
9 MR. FRYE: That's been slightly changed. I 10 MR. QUAY: 2.2.1 --
II MR. MILHOLLIN: It should be 2.1.1, is that right?
12 l MR. FRYE: Yes, 2.1.1.
l 13 MR. QUAY: That's part of it. There were changes I4 in that whole general area, right, John?
15 MR. FRYE: Yes.
l l 16 MR. MILHOLLIN: On page 14.
I7 MR. QUAY: 2.1.1, yes.
18 MR. MILHOLLIN: Can we carry the date the same,
. i 19 '
10/16?
i 20
. MR. FRYE: Yes. f 21 MR. MILHOLLIN: It's page 14, so make a note that 22 that's a 10/16 draft.
23 MR. QUAY: I would say probably all the way up to 24 I about 28 or 29, somewhere in there, and those pick up the
.r i n pormes. inc. I 25 corrections that John had made, and somehow they had missed !
no
I mtall 12 I I this particular version. We went back and located those l 2 additions to this draft and John made a few others.
3 MR. FRYE: Plus some other changes that I made as 4 a result of our last meeting.
5 MR. MILHOLLIN: Yes. You were thinking about making 6 some statements about the criteria for categories?
,- 7 MR. FRYE: Yes, I elaborated slightly more on that.
8 MR. QUAY: I guess the last thing I've got, then, 9 Gary, is the analysis section or all the.writeups for the 10 cases. We had some holes in those and we delayed any discus-Il sion on those pending this entire option discussion. Then 12 we'll determine what we're going to have to do for those.
13 But various individuals might have to do something to clean up Id those if we decide our avenue of approach on,it.
13 So far no one has submitted anything MR. MILHOLLIN:
16 newer than what we had in the first draft.
I7 MR. QUAY: Yes. Carl Kniel supplied funding flow 1 18 writeups. Bill supplied some stuff on Midland.
I9 MR. MILHOLLIN: The environmental impact.
I
!, 20 Funding flow writeup was supplied for i MR. QUAY:
21 l Cherokee. And what was the other one?
l*
22 MR. KNIEL: Catawba.
23 MR. MILHOLLIN: Is that all in here?
MR. QUAY: That's all in there.
e neoomes, Inc. j 25 MR. MILHOLLIN: Can we note that, then?
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mto 12 13 I Okay.
-MR. QUAY:
2 MR. MILHOLLIN: I'll note it anyway. . This helps 3
me remember which version'is the most recent one. So we have )
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an update on. Catawba which is' included in this, is that right? !
__- - _ ..._ _ I l 5
MR. QUAY: Yes , that 's 2. 2. 6#-- .
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6,- MR.MILLHOLLIN:That's all right. I can do it in the
- ' 7 index.
8 MR. QUAY: Well, the problem is the exact page.
9 I don't have the pages in the index.
10 - Okay, 2264 is on page 112. It's 112 and 113, II actually.
I2 MR. MILHOLLIN: So those pages are new?
13 MR. QUAY: Yes, are new, supplied by Carl.
Id MR. MILHOLLIN: As of 10/16, shall we say?
15 MR. FRYE: Yes.
16 That's the new writeup MR. QUAY: 2274 on page 118.
17 for Cherokee. And Midland, I'm looking for that --
18 MR. MILHOLLIN: 73? j 19 MR. QUAY: 92 on Midland. 2234 starts on page 92 l
- l. 20 and finishes up on page 94.
21 MR. MILHOLLIN: Starts on 92 and goes to 947 l
22
- 1. MR. QUAY: Yes.
23 i 24 el Repo,ters,Inc.
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MM i '4R. QUAfs' So as I stated earlier, those sections 2 are in good shape with the exception of the very last 3 analysis. section, and that will depend on what we do here .
4 today. T:.ac's all I had. !
6 Bill has handed something else to me. There are a three tacles at the end -- I think Table 2.1 at the very end
/ of the stapled portion, the Chapters I and 2 segments.
8 There's a Table 2.1, a Table 2-3 and a Table 2-7. Those are i 9 out of order and will be put into the text in the proper 13 location.
1 11 MR. MILHOLLIN: Okay.
12 AR. QUAY: So those tables should os interspersed 13 in tne proper position in tne text.
14 MR. MILHOLLIN: John, did you all'make any changes la in the things that you mentioned to me concerning the taoles la in which -- it seems that almost every case was an atypi:a1 le case, ana you saio in some of the tables the ' figures didn't 13 seem --
19 MR. LOVELACE: No, Bill and I have not had an 23 opportunity to sit down and talk aoout this. There may oe i
21 something we mignt want to talk aoout today. I don't kn)w.
l' l
22 There do seem to De perhaps some problems in the data we 1
i- 23 have which is a subject we might want to t ak e up.
l 24 '4R. MILHOLLIN: As you can see, I have spent tne 23 week writing advar.taoes and disadventages down for the
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!f/06 02 02 15 !
c 4M I i various options. I'm sure I haven't caught -them all, but I
'd tried to get most of them.
i 3 So f ar you should have in front of you advantages 4 and disadvantages by option for all the options.
5 MR. QUAY: What about 1.
1 l c MR. MILHOLLIN: The 1:ption I is 3. 3, which S teve
. 4 just distriouted.
8 MR. QUAY: Okay.
9 MR. MILHOLLIN: So Option I is Item 3.3, which IJ explains the present system. Option 2 is repeal, given that
- 11. numoer really for purposes of discussion, and then Options 3 through 5 are discussed in the Section 3.5 of the report.
12 13 So you should have that in front of you also.
() 14 3.5 discusses all the options from option 3 to 15 Option 5. The options I'm ref erring to are the options are ;
la dis:ussec in George's draft range of options considsred, 1/ which is Item 3.2. So you should have Item 3.2 in your 13 clipped version of the second draft.
19 MR. QUAY: Starts page 148.
. 20 MR. MILHOLLIN: Then I have written advantages ano
'21 disaavantag3s for Options 6 't , 8, and 9. I did Option 2
,' 22 first, and then I did Option 9 so oy the time you get to 23 Options 6, 7, and 8, you notice they ref er osck to Option 2 24 and Option 9 for shorthand purposes.
20 MR. SE3E The Option 2 tnat you wrote uo o.
t l.
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f 02 03. 16
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MM ?! corre sponds to Option 2E7 2 . MR. MILHOLLIN:- It corresponds to Option 25. Ine 3 -other options under Option 2 are intermediate. options .
4 oetween Option 1 and Option 2, Option i being retain the d- . present system ana option 2 Deing to abolish it totally.
o Shall we take a few minutes to read through -these 4 advantages and disadvantages? dould that be a good -
8' procedure?
9 MR. QUAY: We discussed, for the most part, the 10 present system last time, didn't we?
11 MR. MILHOLLIN: Yes, for the most part, we 12 discussed the present system. Perhaps if there is something 13 in here which Steve would..like to point out that might save i 14 time that he's added over our discussion last time?
15 MR.-0STRACH: Now are -we talking about 3.37 16 4R. MILHOLLIN: Yes.
14 M9. OSTRACH: 'If I did, it was by inaavertance.
~ 13 My intent was to summarize the very lengthydiscussion we had 1/ from Gary's notes. Gary, took notes of it, and I oelieve i 2J they were very f air notes. They correlated with my 21 understanain) of it and the notes tnat Ted and I took of the j 2.d m ee ti ng. I think tnat all of the advantages and
.- 23 disadvantagss were listed to the extent possible, even with 24 tne terms tnat were agreec upon - matters like " clearly 25 shown" and language like that, so I think it should oe
60 02 04 1/
r i WM i satisfactory. I did add -- the very first paragraph was 2 written by-me directly. It was an attempt to sunmarize the 3- cackground of the rule ~ in the sense of the operating license .
4 discussion we had, the LWA discussion, but it mi j.it not oe 5 ~particularly clear,- but at 'least I think it's acc0 rate.
6- So, no, I don't think that - . unle ss someone has.
I problems with 3.3 I think it's fairly oland.
8 MR. QUAY: So can we just skip right on past that?
9' I don't see any need to consider it now at the meeting. We 10 can look it over later. I il MR. MILHOLLIN: All right. Have you all had a 12 chance to raad the advantagss and disadvantages under Option q 13 27 Would you like to take fifteen minutes to do that. )
M k/ 14 MR uSTRACH: It's all right with me. j i
16 , MR..MILHOLLIN: Okay.
16 (Pause.) ,
1e MR. MILHOLLIN: Let's get back on the record.
I 13 Last time George suggested that tnere were certain-19 options that he felt through inspired intuition would be ths 23 ones which were the most promising. Is that not right, 21 George?
- l. 22 MR. SEGE: Yes. That is correct. It's a good
. ~23 summation.
24 Md. MILHOLLIN: As I remsmber, none of the options
!- 22 in 3.5 were includea in that. Is tnat correct?
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't Et0 02 05 18 o - T4 i Ma. SEGE: That is correct.
2 MR. MILHOLLIN: Options 2 through 5, and they were 3 the options -- excuse me. _
4 MR. SEGE: 3 through 5. i 1
6 MR. MILHOLLIN: 3 through 5. This would be 5 restricting effectiveness to certain cases, restricting the
. e amount of work and attaching conditions. For purposes of S discussion, I would like to propose that we agree tnat tnose 9 options are not options which we should pursue.
IJ Any response to that?
11 (iio response. )
12 Md. MILHOLLIN: No personal offense intencea, Ted !
13 or Myron.
( 14 MR. KARMAN: I was just writing them, not pleased 16 with them.
la Md. QUAY: I'm not all that pleased with them. I Il think they involve just too many complex issues to De really 13 viable. It would take anotner Boara to determine whether 19 the options apply or not.
- 2J Md . MILHOLL I F's John, do yo'J have any --
21 49. FRfE I have no proolem with it.
24 MR. MILHOLLIN: Ocay. So we get rid of Options 3 l, 2J through 5, ut least, which leaves us with one, two, three, (w
l 24 four, five, six options left.
l 2a M4. 'S EGE: Mr. Chairman, one clarification.
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- 706'02 06 e 19 c f4M l- Ge tting rid of those options doesn't meaa that we get rid of d the write-ups on them.
3 MR. MILHOLLIN - Not at all. .
4 MR. SEGE: Rather in the na rrowing of the options o fore Commission consideration, those would not be included j 6 in the narrowing.
4 44. MILHOLLIN: The next candidate for Category 2, 8 -
whien is the category to which we just assigned options 3 to 9 5, I would propose might be option 6, which would be 13 changing the stay standards while leaving the immediate.
-11 effectiveness rule in place.
12 In my write-up of Option 6, I tried to analyze i
13 what the advantages and disadvantage would oe of a change in
() 14 the stay standards other than those which John Cho wrote up to in his treatment of Option 6. What I came up with was tnat 15 changing the stay. standards would be about the same as some 14 of the other options. That is, changing the stay standard 13 would be similar to -- well, Option 9, for example. I've 19 listed the advantages here. I realize that all this is
. 2J conjectural and certainly suoject to deoste, but I notics 21 that at least in my opinion I thougat tnat the advantages 22 wers pretty much the same as the advantsges of Option 9, and
^
23 even the disadvantages were similar to Option 9.
L 24 Of course, there is one advantage here that I 26 l
($)
[
I 20 DO^ 02 07 t '4M .l_ listed, which would oe superior to Option 9 --
2 MR. FRYE Can you really separate those two?
3 Md. MILHOLLIN: I'm not sure you can.
[
4 MR. FRYE I don't think so either. ,
5 MR. MILHOLLIN: Option 9 and Option 6 are very
! 6 close , except Option 9 contemplates a decision oy the I
- / Licsnsing Board, whoreas Option 6 doesn't. If we could make !
8 the assumption that the decision by the Licensing Board 9 would make Option 9 superior to Option 6. mayoe we could IJ Just concentrate on Option-97 11 MR. FRYE Option 6, it seems to me, is just an 12 attempt to f ormulate some sort of standard by which you would judge whether construction should go ahead. Option 9 13 !
/'T k/ 14 simply says the Licensing Board is to make that lo detsrmination.
15 MR.. MILHOLLIN: So really they are the same.
Ie MR. FRYE -Yes.
%1. MILHOLLIN So we have really I suppose now, 13 j 19 if we could agree that Option 6 and Option 9 are similar, 20 then basically we have Option 9, Option 8, Option 7 -- well, let's talk a bout option 7, if we mignt f or s moment. That 21 22 would be a good thing.
f.
l Lla 23 Under disadvantages, I have indicated tha t --
1 '24 well, I guess what I thought was the most significant ;
m 26 disadvantage, and tnat was that there are only 3 limited j ()
- _ . . _ _ _ . _ _ _ _ - _ . _ _ _ . _ . _ _ _ _ _ - _ . _ _ . . _.. _ _ ~ - -
'706.02 08 21
)cMM i numoer of questions you can really handle this way through
~2 accelerated treatment on appellate procedures. You couldn't 3 expect to gat a referred ruling on the question of whether .
4 the evidence was adequate on a certain point, for example.
6 You could get a decision on a referred ruling on a question 6 of law or policy, but that would 'still leave a number of a questions for disposition af ter the hearing ends.
8 Agree, Myron?
9 MR. KARMAN I do.
10 MR. MILHOLLIN: So maybe this would be a devics 11 which could supplement some other recommendation, rather 12 than being in itself sufficient to -- I 13 MR. FRYE I woula vote for leaving this one out
()' 14 for purposes of discussion. l 15 -MR. MILHOLLIN: Okay.
16 MR. QUAY: That's 7?
17 MR. SEGE: I have one question, Gary. On the 19 second page in Advantage Number 3 in parentheses, you 19 distinguisn between " certified" and " referred" questions.
20 That certified and referred questions, I don't know what the 21 diff e rence is. Maybe everyoody else does, out I don't.
22 MR. MILHOLLIN: As I understand the device of 23 certified questions, the Board would certify the question --
24 the Licensing Board would certify the questions to the .
25 Appeal Board without making a decision on the question, I
()
l l
"7 02 09 22 7
- HW I whersas a referred ruling would consist of a decision by the ,
1 I
2 Licensing Board which can be ref erred.
3 MR. SEGE: I s e e , --
4 MR. KARMAN: The Licensing Board, in ef fec t, would 5 say, " Hey, let's not even waste time with our even ruling on 6 this let's get it up so that the appellate body can work on
. e, it right away."
8' MR. SEGE: They ask, "What shall we do?* Where as l 9 on the referred ruling they would ask, "We are thinking o. l l
10 doing this 't is that right?"
11 MR. KARMAN: No, they would have done it usually.
12 MR. SEGE: Okay. "We did this t is it all right?"
13 MR. MILHOLLIN: They would say, "Here's our 14 opinion on this questions do you agree with it?"
16 MR. SEGE: All right. Unde rstood. I have no 16 proolem witn dropping out tne assumption.
I, MR. MILHOLLIN: Which leaves us with four options, 13 and it's only 10:15, and we are down to f our options.
19 MR. KARMAN: And the option numbers are --
. 2J MR. QUAY: Present system -- 2, 8, and 9. 1, 2, 9 21 and 9.
22 '4R. FRYE I would include 6. I wouldn't
.. 23 eliminate 6.
1 24 MR. MILHOLLIN: Well 9 --
25 MR. KARMAN: 9 and 6 we used as one.
n l '.
N06'02 10 23 l ' s-f)4: WA 1 MR. QUAY: Didn't we say 9/6 together?
l 2 MR. SEGE: I thought we were trying to eliminate l 3 6, because it has no clear advantages over 9, but it has a 4 disadvantage of what happens if nobody asks for a stay in 5 comparison with Option 9, and that on that basis we could l= l 6 simplify the discussion by dropping out 6 also. .
l, / MR. CHO I lean toward focusing on 6, and then 8 adding a modification to 6 if we want to by including some l
l
) of the features of 9. 1 lJ MR. KARMAN: Using 6 as your nucleus?
11 MR. CHO It seems to me that makes sense, because 12 casically I think 9 adopts 6, except they're saying we will 13 add one additional factor.
() 14 MR. FRYE: If you adopt 9, for instance, you have 13 still got to focus on 6 because you've got to focus on wnst 13 standard is a Licensing Board going to apply in making a le determination. You can't avoid 6. You've got to look at IS it. 6 is the guts of it. 9 is mainly procedural. 6 1v focuses on the standards that would be applied by the l, 23 Licensing Board or the Appeal Board or both.
21 '42 . KN IEL: I'm a little surprised at your saying 22 tha t becauss I would think that 6 is an enfringment on i
l, 23 established legal standards, whereas 9 is easier to 24 accomodate on the basis of changing internal requirements 23 and c ritaria. I thought this Virginia Pe troleum job i-F -
' '4 0 02 I1 24
. 1 MM I crits-ia are well' established legal precedent.
2 MR. MILHOLLIN ' 6 is proposing that they oe 3 changed.
4- MR. KNIEL: It's much easier to change those, I 5 would think, ' as a part of 'our internal system rather than to 6 go out into the legal Jungle and suggest that they changs
. 4 them.
8 MR. FRYE I think part of 6 ought to. not change !
l
> them. It ought to be a subject for discussion. ]
~
13 MR. KNIEL: That doesn't oc anything for changing 11 the immediately effectiveness.
12 MR. FRYE I'm not so sure. I think that's 13 something we ought to talk about.
() -14 MR. QUAY: I'm confused, John.
15 MR. KNIEL: So am I.
16 MR. FRYE We're ge tting aneed of the discussion l 17 right now. It seems to me that the important thing here is 13 that when you are talking' aoout a determination of whether 19 construction should go ahead on the issues, you have to put l
. 20 down some standards by which that determination is going to 21 oe made. And it seems to me that 6 focuses on that in terms 22 of stay standards.
!. 23 MR. KNIEL: I agree with exactly what you have L
l 24 statsd. I just thin'< it's easier to - do that as a part of j 2s 'our internal system, rather than to try to change those stay
()
^705'02 12 25
.(~
O)c MM i standards es applicaole, you know, other legal cases.
2 MR. KARMAds You're getting to the merits.
3 MR. FRYE ' I think you're ahead of us.
4 Md. KARMAN You see John is not taking a 6 particular position now. -
o MR. FRYEs I'm not taking a position. I'm just 4 saying that it seems to me that's what we've got to focus 3 on.
/ VR. MILHOLLIN: John, I guess I was assuming that 13 not changing the stay standards would be included in Option il 1.
12 -MR. FRYE Well John Cho has come up with a very 13 interesting proposition on the stay standards that I hope
() 14 we'll discuss, and that is leaving them in effect but noting 13 pernsps in a regulation, perhaps in a policy statement, that li- they are to be flexioly applied.
1, MR. MILHOLLIN: Tnen it would be useful to talk 13 a bou t that in connection with Option 6 and 9.
le MR. FRYE It seems to me that's the guts of it 20 really. If you're ge tting away from -- if you're talking 21 a bou t something other than a repeel of tne rule either in 22 who19 or in part, and you're going to focus on some sort of 23 a sslec tive approach to the question of whether L 24 construction should go forward and review an initial 1
1 23 decision, then you've got to focus on wnat we now call stay A
, \_/
I t
. . _ _ _ . . _ . . _ . m. ... . . _ . _ . .
E/06 02 13- 26 Os
(_A.'04 i standards and whether they should oe kept in place, modified 4 say by a notation that they are to be flexioly applied, or 3 :ompletely discarded and replaced with something else. It 4 seems to me that's what you've got to focus on, and I 5 wouldn't include it for that reason in Option 1, leaving the a present system . in place.
I l4R. MILHOLLIN: Otay. So the discussion of Option 8 6 hare should also include the discussion of 6-9, snould 1 l
9 also include the option of keeping the present stay IJ stancards with some kind of a notation tnat they oe flexioly 1
11 applied.
14 M7. FRYE Yes.
13 VR. MILHOLLIN: As John su ggested in his writing.
i r
() 14 MR. FRYE As John Cho suggested in this l
- 1) write-up. I nope we will discuss that.
> la I r'
1o la 1)
, 23 21 22 23 ;
24 22 i
l
...m +me ememm-
~- .- . .. . .~ . _ . - - .. .. . - . - - _ . - .
l l
"7 03 01 2/ I
\
kap I 44. MILHOLLIN: Can we call that option 6A for l l
2 purposes of identificationi is that okay? j 3 MR. CHO Why don't we just stick with 6. It is 4 easier to remember as 6A, in fact, a lot easier. l 1
5 MR. MILHOLLIN: Okay. Well, what about option !?
5 Can we make a decision about that, whether we think it's 4 viaole to keep option'I?
3 -
MR. FRYE In other words, our bottom line would l 9 be, everything is fine, don't touch a thing?
13 4R. MILHOLLINs. Wall, I'm just trying to figure 11 out some way to begin this ciscussion. We could discuss 12 option 2, perhaps we've discussed option 1 cefore. We can 13 discuss option 2, wnich would be just straight abolition. ]
() -14 Mayos that would be a way to begin.
15 MR. FRYE 2E.
16 VR. ItILH3LLIN: Yes. Just discuss straignt 1/ aoolition of the rule.
15 Md. KdIEL: I think.we could do away with 19 discussing option 1 on the casis that I think we have
. 2) developed a factual record. Certainly starting on the oasis 21 of this fectual record and the first principles we ought to
~
l 24 be aole to .nake a oetter decision tnan that one that is 23 presently in force.
24 43. CHO: I would discuss option 1 along these I
! 2; linssa one. I thin.< the f act -- I think our study has O
706 03 02 28
( kap 1 indicated tnat the present system has not caused any real 2 aifficulties. When I say tnet, I mean in terms of 3 prejudicing appellate reviews, but I think I wculd also say 4 that there is legitimate concern about the public perception a of allowing construction to go on while you still havo your 6 adjudication going on.
I Because there has to be sone sort of accommodation 3 . of that concern, we can drop -- when I say drop -- recommend 9 against retention of the systen, completely without any 11 change. Ano then going to option two and the other options.
11 ttR. KNIEL: I agree with that very much. I think 12 we all agree with that.
13 MR. MILHOLLIN: Okay. We coula agree as a f actual
() 14 matter, then, that the biggest disadvantage of the present 13 system is tne one of public perception. I think our data 15 indicates tnet.
- 1. 'tR. FRYE
. It seems to me that's a conclusion that 13 we ought to 09 aole to come to.
l/ '12. MILHOLLIN:
That's a factual conclusion which
- 2) seems to me to ce documented. The licensing board members 21 who are closest to the action tall us taat that's a proolem, 22 puolic perception is a problem. ,ie've heard it from other 23 quarters. On the other had we've also neard -- well, from 24 our own studies we have concluded that we haven't found any 25 -- that we haven't found cases in wnich you can say that O
f e6 ** ** wem w wm e We w m a mhw ese che ao 4 ga M e e egne ue d _ - _ _ _ _ _ - ._ _ - . _ _ _ _ _
'to$ 03 33 29 haJ l there is a definite disadvantage to the way the present 2 system operates in the processing of the cases with the 3 possible exception of Seabrook.
4 Does everybody agree with that? Is there any ,
5 other case in which a psychological pressure was documented?
6 MR. FRYE I guess I have to object to the term
, / dpsychological pressure." It doesn't mean anything to 3 -
me. Everyoody's got psychological pressure. You can change 9 the systems you may get rid of some psychological
-10 pressures, not you're going to have new psychological 11 pre ss ure s .
13 '42. KARMAN As a result of TMI we're going to 13 have psychological impact coming into play, too. Plho knows
() 14 where that's going to be iciading us?
13 MR. FRYE I thi.n?. we ouga t to foc us , if we're la going to talk acout things like that, we ought to focus on il something that's a good deal more concrete. And that is 16 did the system result in some tilting of a cost-benefit 19 calance because of the . investment oeing mace in a site? cies
. 23 the issue one whi.ch the outcome could've bee n influenced by 2: the fact taat construction was going on? Not psychological 2d pressure, out influence by the nature of the way the issue 23 is.
24 M.4 . MILHOLLIN: In Seabrook we have statements by 22 three commissioners to the ef fect tha t they think the 0
.. - .. - . - - . _ - . ~-- . _. . . - - . - - - ~ _ . . . -
l706 03 04 30
()kao I outcome was influenced --
2 MR. FRYE But apparently no one asked for a stay.
3 '4R. QUAY: It was the stay, but not the outcome.
~
! 4 MR. FRYE Steve tells me they took the time on a the ultimate site issue so they couldn't have-felt any 5 pressure on that.
, MR. OSTRACH: dell, I said they took their time. l 8 I dian't say they took their time on the ultimate site 1
> i ssue s. The only. merit decisions the commission issued were
. 10 not site decisions. Well, that's not entirely true, but for il purposes of this discussion it's true. In one of their stay 12 decisions -- in oath of their stay decisions, in fact, they 13 either. terminated or breathed life into the site issues, but
() 14' they weren't really the principal issues of their 15 consideration either time.
15 In the second stay decision, for example, they 1/ terminated the Southern New England investigation. In tneir 13 first stay decision, they -invented that issue. But in 19 neither case was it a matter where they actually comparea on
- 2) the merits, site one versus site two. Jhile the dollars 21 were ceing scent, tnsy just dian't 20 that.
24 1R. FR(Es I-thin 4 in terms of Seacrook -- correct 23 me if I'.n wrong -- out it seems to me the issue there isn't 26 really psycnological pressure. The issue there ist was the 23 f act that staying construction woula force a lot of people
(
v e e me em n
L l
31 l706 '03 05
( kap i out of work and have other economic adverse consequences? A 2 f actor which the commission f elt it had to aeal with.
3 MR. OSTRACH: Yes, but there was also the f act 4 that the last stay decision at Seabrook --- and commission o opinion make s it very clear -- they felt they had to get the t .
o decision out by a certain time because they were rapidly --
I they had been told in oral argument by the licensee, at that 8 point, that the plant was 10 percent complete.
? It would be 10 percent complete at the end of the 13 month. Witain three months it would be 20 percent complete, 11 and I think the opinion makes it clear that the commission l 12 thought that more tnan likely once the plant was 20 percent 13 complete there was no conceivable set of circumstances under l l ()
1 14 which' an alternate site would be preferable on environmental lo grounds.
15 1R. FRfE That's exactly the kind of inquiry we 1a ought to be focusing on. Not psychological pressure.
]
13 MR. OSTRA0H I guess you could say that that 1/ leads to psycnological pressure, to decide that stay case
- .. 2J very quic kly. Because if it's going to take them three 21 moncas to decide the stay case, they've deciJed the stay 22 casa.
23 Asyce it isn't psychological pressure. Maybe i t's j,
24 just pursly a mechanical --
I 23 Md. FRYE Pressure that results from the way the
- O .
I - . .
. _ . . - = . - . ,_ ._ __ . .. _ _ _ - . - _ _ _ . _ _ _. .
l
'405 03 06 32
(~h
\_/ kap i l eg a l, system operates.- But psychological pressure is just a t
l 4 vague --
I l 3 MR. OSTRACH: It's a matter of definition. -
l 4 MR. MILHOLLIN: So all would agree , then, that 5 option I can be relegated to a non -- an option not to be
$ pursued. .
I Whien le aves us with options 2, 8 and then 6-9.
J Could we discuss a comparison of option 2 and those other 9 optio ns . J
\
is M.4 . SEGE: Well, it loods liks science reigns li s upre me . One advantage of option 2E -- I gue ss rhen we say l
14 " option 2" now, we're talking aoout repeal. The advantage 13 of the repeal of the immediate eff ectivene ss rule is that
() 14 ~ it's simple and clear-cut. It .leaes to experience l
I:5 involvement of the higher tribunals in the licensing l
la process.
Is So there would oe en opportunity of that involvement ,-
)
13 _.. itself, to suggest possiole intermediate options for 1/ later adoption.
. 23 MR. QUAY: You say that's an advantage? It's 21 . iso a disaavantage. ;
~
22 47. SE3E It's a disadvantageness in the sense of 23 -
if you tnink of it in terms of creating a system that is 24 going to enaure forever, in that sense it may have a l 2a disadvantage, because if there should b2 a large numoer of l
l
, ~. - . - - . .. - -. . . . -- -- - . . . - .
F L
7 03 O ~t 33 kap I casas again, that would clearly be limitations on the 2 possible involvement- of the commission, and perhaps even the
{ 3 appeal board in e ssentially all the cases.
4 MR..CHO George, why is that any more simple than 6 the present system? .
l.
6 MR . S EGE Oh, no, I thought you are not comparing
. , repeal with the present system, but you are comparing repeal l 6 ' with the other options that have' survived for further 9 discu ssion.
! la 49. CHO So you're saying it's simpler tnan the 11 other.
1
! le 1d. SEGE: Well, the simplest thing to do is 13 notning, ooviously. That would be option 1. But I was ;
( I4 comparing now with the other options, comparing options --
15 the repeal option with the other options. l 1
I
- lo MW. QUAY: Am I to e usume when you say a repeal l l
1/ you're talking aoout going all the way up tnrough commission 13 review before you can get a final decisions is that 19 correct?
= 2J Md. MILHOLLIN: Yes.
21 4R. QUAY: On all issues, in substance?
~
2c MR. MILHOLLIN: Yes, every issue on the merits.
i
- l. 23 Md. QUAY: Okay. Ori page f ive , tnen -- of option
! l 24 2.
22 MR. MILHOLLIN: Okay.
l l
lL L
_ . ~_ - . . _ .. _
l l.
706 03 08 34
/m k-) kap i 14R. QUAY: Item numoer five. The lest sentence in 4 there,"If immediate effectiveness rule were repealed l
l 3 construction could not oegin in any case until the
~
l
'4 commission hac decided all the iscues in that. case."
l 2 MR. MILHOLLIN: Okay yes.
6 MR. QUAY: That's a big difference.
. 4 MR. MILHOLLIN: Yes, it is. I agree.
3 MR. QUAY: Is there an implication here that the
/ commission ocards would get involved in every case, t hen ?
10 MR. MILHOLLIN: No, I guess the assumption would 11 be that we would just have the present system but no
- 12 immediate effectiveness rule, so that the commission, as I l
13 understand it, under the present system, has an opportunity
) 14 to review appeal board rulings. And if it doesn't review 1; them, then they become the final agency actioni isn't that 13 rignt?
l 1. 4R. FRYE Yes.
13 Md. QUAY: O kay.
l 19 MR. MILHOLLIN: So the appeal ocard basically
. 2] woulo have the same review power es it has now. Everybocy l
2s woula have the same power.
~
22 '4R. QUAY: I don't understand what George is i
l, 23 saying. It gives them more of a chance to get involved? I
-24 think that they have that enance now. If you're saying 23 cefore a final agency decision, I concur in that. 3ut I (1)
, .-~ -- . . . . , . . -
- Ft 06 03 OY 35
-\ kap. i aon't know --
4 Md. MILHOLLIN: I think tne advantage would be 3 that they would have an opportunity to get. involved oefore ,
- 4. construction commences.
6 MR. KARMAN Before construction commences.
5 MR. QUAY: I agree. -
. / ' MR . S EGE: The opportunity would os more likely to 6
be used when it is clearly presented for the purposs of
! v cecoming involved before construction begins.
10 Md. KNIEL: That's con jecture, I think.
! 11 MR. SEGE: It is.
l 14 MR. QUAY: I don't know if I can agree with that.
13 MR. KNIEL: There's no casis for that.
i
() 14 MR. QUAY: How is the commission going to pick out lo tne 5eaorook unless it can see it coming down the road?
\ \
i i la Noula it pick out a Bailly? !
le '4R . MILHOLLIN: Excuse me, Ted. You are sayino -- i i
13 I'm not sure I understand which point we're on now.
11 -42. QUAY: Well, George is saying that he sees if I
. 23 you repeal the immediate eff ectiveness rule, it gives the 2 commission more of an o.oportunity to get in oefore 22 construction Degins. And he sees tne commission using that
- j. 23 option. I don't know --
24 '4R. MILHOLLIN: So the question is whether it 22 would oe 'more likely that the commission would undertake t
,\_)
4
% +
-~.
_ _ _. _ . ~ _ _ _ __ _ _ _ _.. _ . . -
l "s o 03 10 36 Kap 'l eppellate review if you abolish the rule.
2 MR. OdAY: Yes, I don't know if I can support 3 that. I tnink the advantage --
4 MR. KNIEL: I saw there's no basis for saying a whether they would or they wouldn't.
6 MR. QUAY: I think we should present it to them
. 4 that they have that option oefore construction begins and )
3 leave it at that.
i MR. SEGE: Let me counter that argument. I t's not IJ that abolisning the immediate effectiveness rule would 11 require the commission to insert itself more of tent but la rather, if the commission decides tnat it would be good to 13 insert itself more of ten, it should abolish the immediate
() 14 e ff ec tivene ss rule.
15 MR. QUAY: Why?
Id Md. SE3E: So that repeal of the inmediate i 11 effectiveness rule in that sense would reflect a change in i
l 13 commission policy from more or less an aloofness to s
19 licensing to an attempt to oecome more substantially
. 29 involved, oecause they ao went to get involved. They're not 21 goino to say they want to get involved in licensing out in 24 the meantime spend a couple of hundrec million dollars
. 23 and then --
24 MR. QUAY: That's the distinction. I think they 23 can say if they want to, rigt.t now, with the present O
V 4
'70 03 11 37 kas i syst3m, they can get involvea. But they would oe ge tting 2 involved with construction ongoing, and that's the only 3 difference.
4 They can decide that they want to get involved ,
o noW.
6 MR . S EGE: That's the only difference.
. 4 MR. QUAY: And that's a distinction.
3 - MR. SEGE: But that's a distinction which is at
/ the heart of the charter of this committee. That's whers 13 construction during adjudication is involved and the 11 dif ference ostween the two is construction during 12 adjudication is involved in one case, and uninvoled in the 13 other.
() 14 MR. QUAY: Fine. But I think we have to state it 15 in tacse terms, that it allows the commission to get to involved with construction not onooing.
Ie MR. SE3E Right. Understood.
13 Vd. QUAY: dot that the commission has more of an 19 opportunity to get involveo. They have that ooportunity now
. 2) if they elect to use it.
21 '42. S EGit Okay. iore of an opportunity to oe:ome 24 involved oefore construction.
23 Md. KNIEL: Recognizing tnat most of the issues 24 don't relate to -- are not impacted oy the ongoing l
l
, 2; construction. Many issues taat the/'d be involved in aren't
/"T V
I
+
l D06 03 12 38
.f'}
\- kap i impacted by ongoing construction, only a limited numoer of ]
i 2 . issues are impacted oy ongoing construction. l l
3 Md. MILHOLLIN: That's true. Other advantages of l
l 4 -- other discussion of this option compared to the others?
a What did you think of my advantages? Probaoly not much --
a that I put down here.
. / Md. LOVELACE8 I've got e' comment on your 3 disadvantages.
9 MR. MILHOLLIN: I know John Fryes' comments on 10 numoer 2 have already been made, of my own advantages.
11 MR. SEGE: Your advantage and disadvantagss are s
12 really in relation to option 1.
13 Md. MILHOLLIN: Yes, they really are in relation
, O)
(_ 14 to option 1. They are not designed to be advantages or la disadvantages in relation to other options.
15 i4R. K ARMAW: There is an interrelationship between
- 1. I and 2.
13 'U. MILHOLLIN: Yes. I gue ss there's no --
19 MR. QUAY: Did you want to polish this up or
. 23 something? There's a lot of things implied here, that if we 21- wers to use this I nave a little heartburn over it. ,
,=
- . 2/ '43 . LOVELACE Some stateme nts, I don't agree
. 2a witn, too.
24 MR. MILHOLLIN: Oxay. I'm not sure what the 25 pro:saure should ce. I was assuming if I push you real harJ (vD l
l' l
l
- 3406 03 13 39
/
\ kay i mayoe we can come up with some kind of tentative 2 con:1usion. Then we could go back over this and straighten 3 it out.
4 MR. QUAY: O kay. Mell, I don't think it changes 6 any of the conclusions but the way it's stated here I have 6- trouole with it.
. I MR. MILHOLLIN: All right. Why don't you say what 3 they are? We've had comments on number 2. I take it that v most people would agree with advantage numoer 3. !
IJ MR. CHO: Except for the last sentence. I don't 11 know why uniqueness is necessarily - you know, not being 12 unique, necessarily is an advantage. In other words, you 13 run with the herd -- why that would ce an advantage.
O)
(_ 14 MR. QUAY: I think he's saying it all under the 15 puolic perspective sspect. You know, if you're different to then the puolic views you dif ferently. {
li MR. CHO -I'm not that sure that's a concern of 18 the puolic.
19 MR. QUAY: I tnin4 it is, to an extent.
. 20 Md. CHO: Not the uniqueness. I think they're 21 con:erned with tne fact of allowing wor % to go on while tne
!' 22 matter is still --
l, 23 M.4 . KARMAN: But they bring in, Hey, how come 24 nocody else coes this ?
23 44. CHO That's more lawyers.
't I
- . . - -. - - -_- . ._~. _._ .. ._ -
t
"/06 03 14 40
(> kap I '41. KNIEL: Wait a minute, now. Tne public 2 perception is that an appeal takes place on an issue oefore 3 the action regarding that issue is implemented? That's the 4 puolic perception?
5 MR. CHO Right, not the f act that we are a unique 2 agency in that respect.
, Md. KNIEL: Okay. But since we are doing it 5 differently than that, it doesn't sit well with the public.
/ MR. CHO: Okay. I t may be. I think the ultimate l 13 result may oe the same, but just to put it in terms of 11 uniqueness, I think it sort of creates an impression that's 12 really not warranted.
13 MR. KNIEL: I think the impression I would try to
() 14 create is wnat I just said. Public perception is that there l
15 is an appeal before the action is implemented. In other la words, tne appeal takes place oefore the person is sentenc?J II in a criminal case, or before the civil action is is implemented in a civil case, and therefore this doesn't 19 agree -- our procedure doesn't agree with the general puolic
, 2J perception.
21 47. KAR4AW: I'm inclined to agree with Jonn, 24 though. I'm not quite sure what it really coes. ?inet it 23 says in ef fect here is that the advantage of repealing the i
24 immediate ef f ectivene ss rule would no longer place us in a 2s unique category. '4aybe we should oe in a unique category in f-i
,s
! m .
l l
! i
706 03 15 4
() kap I certain aspects. I'm not certain it does an', ing to
- strengthen the advantage aspect of repealing t h.e immedict i
j 3 e ff ac tiveness rule.
4 MR. SEGE: The uniqueness is in in this ways that l
j j 5 clearly the public perception, that would be -- public -
'N.
!. 's,
- 6 perception would be a searen with what makes us different I f rom anyone else, and that difference historically has ceen l d that the agancy has regulated nuclear power and was also i
j > promoting nuclear power.
f 10 Ine suspicion that we are interested in getting l
l 11 plants ouilt rather than in making sure that they are not 1
F1 12 ouilt unle ss they are saf e, I think the uniqueness could l /
4 13 contribute to that impression.
) f
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13
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- i. 23 i 21
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4' 24 23 1-24 26 O
1
. ~ . _ -. ., - -.- . - -. - ._. . .
42 l A O ' 04 01 MM i M.l. CHO I think this places the emphasis in the d wrong point. When you mention " uniqueness," I agree witn i 3 you there is a relationship between uniqueness and our rule 4 and the impact that rule has on the public, as Carl has 3 indicated. But to just say " uniqueness," this would
- i a indicate the uniqueness, par se, is an advantage.
1
/ 4d. SEGE: Mayoe that could be rephrased to mace 3 the connection more explicit.
9 MA. MILH3LL IN: Oxsy.
- 1) 4f. CHas I have uifficulty -- are we moving to 4?
11 MR. ;4ILHOLLIN: Yes.
1 12 MR. CHas I had difficulty with the third s ente nc e 13 o f 4, which says: "Our cata show it is more expensive to
() 14 oegin constrution, then to halt it, than it is to delay the 16 start of construction."
la I think that woula depend on the time involved ano 1/ the amount of construction tnat's already done. You know, !
13 there are a lot of f actors --
19 '43. QUAf I thin'< all f actors considered, if
. 2) you're talking aoout what I think he's missing here, is 21 comparaole Jelays.
2e '41. MILHOLLIN: Taat's true. This sentence 23 doesn't take into account --
24 M.l. JUAY: It implies thst, and I think all the l 2; planners we talked to indicated it's f ar better to st art O(~\
1 l
.. -- - _ _ - - .- .. . . - - - = . . - . . - _.
43 DOS t 's 04 02 k- W.i i lats by a comparaole amount than it is to delay thr.c d comparable amount during construction.
3 MR. MILHOLLIN: It's cetter to start iste than it 4 is to --
6 MR. KARMANs If you're going to start late for
$' fivs months late starting, it would be less expensive to
., I t' Tem than to start, have a five-month delay, and than start 3 - again.
9 MR. QUAY: "Our data show that for comparaole time IJ oeriods" -- you can put something like that in - "it is 11 more expensive to begin construction" -- aless expensive to 12 oegin construction later." l 13 MR. MILHOLLIN:
Ocay, I will make a note to work s
14 on that one.
15 MR. FRYE: The first sentence, too.
15 'U. MILHOLLId I thougnt I had survived until thi 14 thira sentence.
12 (Laughter.)
It You think the first sentence is misleading?
. 23 Mo. FRYE Yes. I would nave reparased it to says 21 " The possioility of no social or economic dislocation cause; oy .MC's halting of construction af ter they nad started" --
22 l, 23 "The possioility of social or economic dislocation caused oy j 24 .iRC's halting of construction af ter it got started would oe 2a avoided." It's a nit, I grant you. But the way it says it
, /"'s k_/
l i-
! l 44 l'706 04 03
'J1 - I now, it sounds like ey making tnis change we can avoid all 2 possibility of social --
3 MR. MILHOLLIN: I am not trying to imply that we .
l 4 can control everything that happens. Okay. I guess that 5 would also apply to No. 5, since people other than NRC can )
- - l 6 turn down the plant. . j l
j, . Md. FRYE: Yes. i 8 MR. MILHOLLIN: And have, in the past. l
/ MR. CHas I think it's stated a little too 10 strengly, too, when you say " totally wasted." Can't you 11 solve it some -- working funds --
12 MR. FRYE That's a very interesting point, 13 because I read in tne paper (inaudiole).
,() 14 MR. MILHOLLIN: Oksy, we'll take out " totally." ;
1
! la MR. SEGE: Or l arg ely. " )
15 Md. QUAY: rihy don't you just say "may be wasted" 1/ or some thing?
13 MR. MILHOLLIN: I will just take out " totally.d 1/ 14. CHa s And then I would -- the parenthetical
, '2) sentence, wnere you said " permit were reversed," I would say 21- d re vo ke dd ra ther than " reversed." I would s ay, you know, 24 experience has indicated that there have been changes, out 23 not revocation of the permit, so the licensee has had to l 24 make some enanges.
! 26 Md. MILHOLLIN: dny don't we just s ay, "the plant i
[%
r (-
~
?
45 .
l706:04 04 ' ;
f~
'\)e MM i were refused'on appeal." i 4; VR. FRYE You said'the " permit was revoked." -
3 MR. OSTRACH: I tnink " revoked" is better. -
.4 MR. MILHOLLIN: All right. We have to say 5 " permanently revoked. "
6 MR. SEGEs- I don't know. de don't want to go too I far in this. It doesn't take that much of an adverse ruling 3 or prospect of ruling that has adverse elements in it to
/ cause a utility to stop going forward if it hasn't already IJ gone very far. 1 11 MR. MILHOLLIN: That's possible. j l
12 MR. OSTRACH: That's true. !
13 MR. QUAYS What do you mean by "gone very f ar"?
()
14 MR. SEGE: I would think 'that in Seabrook, if they
-13' were 20 per:ent done, it would be very, very difficult for la ~;1R0 to do anything that would cause the utility voluntarily 14 to stop ouilding there. But before they start or before :
13 they have spent very large sums of money, if they perceive 1/ that there would ce a decision that would be adverse, l l, 23 perhaps a suspension of a construction permit until certain -
21 pending resolution of some open issues et a time Stas, tn3y
- I 22 haven't spent that much money yet, that may very well ce
.23 . tantamount to refusing a plant.
24 MR. OSTRACH: Let me give an example, hypothetical 2; exam?le. Say a utility applies for a license, assuming that ,
i
?
t.
l 1 , . . , . _ _ . . - - . . _
_ _ _ _ ~ . _ . . . _ . . _ . _ . _ _ _
h i .
46 N06 04 05
. (-
> MM i a certain. f ault is incapable and therefore .they will only 2 .have to design against a certain level of earthquake. An l
3 NRC determination ~ that the f ault is capable, and therefore ,
i 4 .the earthquake' they will have to design against is a 5 magnitude 9 earthquake. While feasible, the utility might 6 decide that that would distort the course of construction to j
. I -such a great extent that, the heck with it, they'll go ahead 1 3~ and oulid a coal plant. ;
/ Now, this would not be a re jection oy the NRC of l 10 the proposal, nece ssarily. Let's say the fault was 11 sufficiently f ar awsy so that it wasn't automatically
'12 rejected, and yet it would be an example, I think, of what 13 George is talking acout, sort of an affirmative -- the sort ]
() 14 of approval, but with such a modification that it has the l 13 eff ect of a denial.
l
~
l$ Is that what you're talking accut. George?.
1: MR. SEGE: Yes. edhen the applicant is not locted 13 out, but is scarea away.
l/ MR.-QUAY: I thin 4 that probaoly correlates to thi 23 commencement of construction, to some extent. So, I think l.
21 we're beleocring a point.
l*
L 22 MR. MILHOLLIN: Bill, you nad some problems with l2,. 23 " disadvantage"?
24 MR. LOVELACE: The last paragraph --
l l
d 26 AR. CHO Excuse me. Are we through with s
- . ._ . . . . . . - _ . .- - . -. ~. -
V l
L 47
$04 04 06 i
\, / ?H I .daovantagesd? I thought we had item 6 yet.
l 2 Vd. MILHOLLIN: Okay, I was hoping we could l
3 compare this to the others, rather than edit it. But go .
4 ahead.
5 MR..CHO The reason I raise the question of item 6 6. I rememoared in our workshop in our panel, it was the
.- e - unanimous view expre ssed by the panelists -- let's say
^ l 3 unanimously outside panelists, not the commission members --
9 that getting commissioners' involvement in the licensing -
13 pro:ess, at least the way it exists now, was more of a 11 detriment tnan an advantage.
id MR. QUAY: That would be a disadvantage, then. l 13 Okay? You can state that as an advantage --
14 MR. MILHOLLIN: Would you like to write an assent, la indi:ating tnat that's a disadvantage ?
la 44. CH3: I am just reporting hera a view that was it expressed.
13 :44. S EGE: I can think of an option that we I/ haven't even discussed that would exacercate the l
=
23 disadvantage that John pointed out, and that would be to say 21 .ths; the commission will issue licenses and that ths 2' connission will ce deciding in ever/ case whether to issue. I 1
4 23 That would cause that disadvantage to exist and then l l
24 exacercate it further.
25 Repeal alone would make it nearly so es,d, cecause L
(~%
[ (_)
48 l
fi 04 37 44 1- tne option of not doing anything would oe present.
4 MR. MILHOLLIN: John, this just says "will be 3 a bl e . " It doesn't say -- to say that this is a ,
4 disadvantags, you would have to say that it's a disadvantage a to have them be sole to review. And I don't think you can a say thats could you?
- . / Md. KARMAN That's colossal gall.
3 .MR. CHO It may not be a disadvantage. It may ba
/ something tnat we may not want to put either as an advantage
- 1) or a disadvantage.
11 Let me point out what the panelists indicated as 14 the reason for their position. They say, under the present 13 system when there is an appeal, they have an appeal ocard
() 14 that they know they argue persona 11y' before the appeal is ocard I tney know that the appeal beard wno hears the la argument will in fact writa the cecision. 3o, there is n 1/ ouality certain in that respect.
15 Tney say, when you go before the commission tney 1/ are not assured one of the commissioners themselves hearing
. 2) you, that certainly the comnissioners tnemselves will os 21 using ghost 9triters, which is to be expected.
22 'U. MILHOLLIN: Commissioner ><a nnedy made that
.. 23 point during our interviews very well. He said he didn't 24 thint that suostitution of anonymous opinion-writers for the 22 appeal ocard would os an advantage, and he was afraid that 1
i 49 l706 04.08 T
! '(^Js MM i woulo happen on commission review.
2 'AR . CHO : This was a point of view expressed not 3 only by intervenors, but the applicents as well. I think wa 4 ougnt to consider those points before we make a a recommendation on it.
-5 MR. QUAY: Okay, I think you can state it as a
- 4. disadvantage.
3 -
Md. MILHOLLIN: So the commissioners would be aole
/ to review?
10 4d. JUAls Leave this advantage here and state li that as a disaaventage here. Repeal if the concission seeks 12 to ge t more involvement, because 6 is f actual.
13 MR. MILHOLLId But, Ted, if you repeal the rule
() 14 st'rsight out, that woulon't mean that the commissioners la necessarily would oecome more likely to take cases or that lo they woulo take more -- that they would.oe required to take 1/. more cases.
I 16 MR. KAR4AN It just means thdt wnen it got to 19 them, construction would not yet have oeen commenced.
- . 20. MR. MILHOLLIN: Tnat's all it says. It says they 21 will be sole, if they want to, to re'/1.ew the decisions 67 i -
! ,* 2d the merits. To say that's a disadvantage, you would have to i
- , -23 say it's a disacvantage to have them be able to hear a case.
24 AR. SEGE: iie ll, no t really ,
i 25 Vd. MILHOLLIN: I would hate to answer the 4
l l'
i 50 f706 04 09 MM i question coming from the commission saying, "In what way co l 2' /ou think tais would be a disadvantage?"
3 MR. SEGE: In this case, we would have to say it 4 woulc be more of a disadvantage to hear the case before 5 construction oegins than to give them a chance to hear it o after construction oegins. -
. 4 MR. OSTRACH: That's the point. There's no way 6 that we can prevent the commissioners from nearing the case
/ sooner or later, and this option means that they would have 10 an opportunity to hear the case earlier. I don't tnink --
11 the disadvantage that the people you referred to saying in Id the workshop was a general dissatisf action with the l
13 connission having anything to do with adjudic ation, out , j
() 1 -1 there is no way we can avoid that.
15 MR. QUAf That's true. 7thetner we got the la present system or repeal the rule. Okay.
Il 4R . OS TR ACH : And I guess if those people had the 13 choice of naving the commission uo their camage, they would 19 prefer them to co it before rather than issuing stay t
. 2) opinions. I think they'd rather have them issue merit 21 opinions.
22 Md. SE3E Regardless of now the value of
- 23. commission review is viewed, whether it's very good or very f
24 bad or in cetween, it is certainly cetter if they do it 25 cefore construction than af te r constriJCtion is on the w3y.
i
. (~h.
2 s_/ i i
l L-
51 l70*SO4 10
'(_/
, M4 I ne can't argue that it's better for them to do it af ter 2 construction is on teh way.
3 Md. MILHOLLIN: What's your pleasure on a creak? .
4 MR. CHO G ood.
6 MR. MILHOLL'IN: Shall we take a 10-minute break?
$ (Brief recess.)
- 4 MR. MILHOLLIN: Back on the record.
3~ Steve has suggested an additional option which he l
/ would like to present, and I suggested he do it af ter we l
IJ finish talking aosut this document here that I put together. !
11 Bill ana I have gone over some f actual errors 12 which existed in the disadvantages section. First of all, 13 in the second paragraph, the figure f or seven months may not 14 ce correct.
Io MR. FRYE I recomputed that. It's 6-1/2.
la M4. MILHDLLIN: Tne seven months was intended oy ]
me to refer to the 23 cases, not the 40 cases. The way I 14 l 13 interpreted your taole was that tnere was a figure of three ,
1/ montns, which ref erred, if you divide the delay by four you 23 got three, if you divided it oy 23 you got seven or 6-1/2. l 21 Is that rignt?
t .
2d MR. FRfE I noted that I changed it to 6-l/2,
- i. 23 yes. And for the 40 it worked out to aoout three. I tnink 24 it worked out to about 3.3.
26 MR. MILHOLLIN: Aiso, the Jata show that of tnose O
l
52
~
l70 04 11
, tim i tnree months, a good bit of it just could be inevitaole a delay in getting the work force mooilized at the site. So, 3 it's not a delay in the sense that the applicant doesn't 4 need the authorization. Is that also correct?
6 MR. LOVELACE: That was my big point, I gusss.
5 M9. FRYE I guess I was confused on that, mayce.
- 4 But let's talk about that Ister.
3 M.R. MILHOLLIN: Anyway, wnat I am saying is that's
/ kind of unclear, at least, or it is not totally clear, I, !
l) woula say, to wnat the three months means. 3ut if you take 11 all the reactors ano divideo by the delay, you get three 12 montns. If you take the cases in which there was a 13 suostantial delay and divided by the amount of delay, you l
/~N
(_) 14 get seven months' average per case in which there was 13 delay, l
la 1.tR . CHO: douldn't you have to know tne type of is celay, too, that's involved, like if there is a laoor I
16 strite?
19 MR. MILHOLLIN: No, John, this paragraph refers to
- 23 delays between Cp and beginning construction. The next l 21 paraoreph re fers to the celay af ter oeginning construction.
2a And I went througn the taole anc triec to araw 23 some conclusory language together, and I made several 24 mi s ta ke s. aell, they are just actual mistates. Overall, I 22 am not s'fre that it changes the general message of the v(") -
- - - ~__
53 006 04 12 k-s,.) WA I aaragraph. For examole, if you wanted to edit this, you 2 woula, af ter " San Onofre," on the cottom line, San Onofre is 3 a case in which deferral of construction -- I am sorry. San 4 Onofre is tne case which, in f act, de ferral of construction 6 would have deferred operation.
- j 3 MR. LOVELACE: Would not have or would have? Oh, ;
I would have. Yes, I am sorry.
8 - MR. MILHOLLIN: dould have def erred operation. I 9 MR. QUAY: I don't think those changes are
- 1) important.
11 MR. M2LHOLLIN: Those changes aren't important.
12 I think, in general, of the cases we looked at 13 specifically, what woulo you say? Aoout half of th9m were
() 14 cases in which a deferral of construction would not have 16 deferred operation, about half that would have s is that la fair?
le MR. LOVELACE: Pro caoly. Close enough.
13 1.<. MILHOLLIN: Roughly, n31f.
19 1R. FRYE 23 or t of 40.
. 23 MR. QUAY: Oh, .rou're talt ing a oou t the int ensive 21 c ases ?
22 MR. FRfE Oh, the intensive casas.
23 MR. MILHOLLIN: Tne 13 cases. About half of thoss P
24 would have cef erred construction 1 aoout half would not.
I 22 Deferred operation. Excuse me, gentlemen. Je f e rre d O
l l
___ ~ . _ . _ . - . - _ - _ - - - . . - _ _ _ . . _ _ . . _ . . _ _ . ..._.__.._ . _ _ . . . . . . . . -
i r l
54 f70604'13 W l' operation.
4 'MR. FRYE I would have to look.
3 MR. MILHOLLIN: If you look at that paragraph, ,
1 1
L 4 you'll see it's aoout 50 percent.
a ~ MR. 0STRACH: Mayee I have already lost this l
- ' l 6 fignt,- but the last time I recall this discussion I said !
r that it's very--- Icjust don't thin'< that the situation is .
3* nearly' this simple, that the f act tna t there was a celay in
/ the system -- wait a minute, perhaps I am wrong. tie ' re IJ . talking hera now about delays during construction.
11 MR. MILHOLLIN: After construction begins. Delay
( 12 occurs oecause of reduced cemand forecast.
l 13 c.tR . OSTR ACH: These are only aemand forecasts?
() 14 MR. MILHOLLIN: These are only demand forecast la aelays. Those are the only ones which I thought it was f air j I la to assume would not have -- would h4ve canceled out at j i4- deferral at the oeginning.
lo ' MR. OSTRACH: I just wanted to make sure we _
1/ weren't_ factoring in here tnings where --
. 20 Md.'MILHOLLIN: Not labor strikes. l 21 43. OSTRACH: Labor strikes , discovery of ,
- ,' 2d quicksana, i 23 M.?. MILHOLLIN: No, none of tnose. In some of i 1
24 those cases. it could. be oecause of when thsy occurred, they
'20 might have cenceled out a delay in oeginning construction, I
i t
1: . . -
55
'406 04,14 (s
s 1M 1 out we don't know that, so we can't really say anything d a bout i t.
J MR. QUAY: Gary, are we still on that page 4? j l
4 44. MILHOLLIN: Yes. ;
1 o MR.-QUAY: ?aragraph 2, fifth line down, l
$ "diff erence in the ability to forecast demand." ,
/ -
Md. MILHOLLIN: Yes , that's a typo. I must say 1
8 this was dictated by me. I just saw it this morning for the l 2 first time.
lJ Md. QUAf The fif th line down in paragraph 2 on 11 page 4, " difference in the aoility to forecast demand."
12 Md. SEGE: Oh, yes. No, it should have oeen "to 13 make demanc forecasts." Thsre is a word missing.
O i4 Ma. oui <a 0*av- Or "forece t ee,e,s."
15 Md. OS TR A0H My contribution, line 3, " Prairie" 13 is mi sspe lled.
It MR. MILHOLLIN: Well, don't worry about those.
18 Any other proolems with this in the succeeding pages?
19 MR. QUAY: Yes.
. 2J M.l. MILHOLLIN: We caught "conmission" on page 5.
21 Md. QUAft Page 6 --
2e MW. MILHOLLINs I made a lot of conclusions scout L, 23 the appeal ooard here, which I anticipated might generate 24 some discussion.
l 23 John,- woula you have any comments on those -
0>
~-
I i
56 706 04 15 g g statements?
2 MR. KARMAN r I had a little star f or John Cho.
3 (Laughter.) .
4 Md. QUAY: A little question mark for John Cho.
5 MR. MILHOLLIN: Let me pref ace this --
o MR. CHO I don't think you can make these
. 4 conclusions, f or one thing. I don't think there is any 8 oasis to it. 2, I think, cepends on so many factors,
/ particularly the times Jovolved. Well, for example, your 10 second paragraph, when you say, " 4u:h of the board's time is 11 saved by decicing some cases earlier then others. All cases 12 must be decided eventually."
13 I think that's correct, out I am not sure you can
() 14 make that same statement in the second sentence, which says, la " Putting the appeal ooard on the critical path does not ,
la remove the scheduling flexioility." I thin that would 1/ depend on tne influx of the appeals that come in, which ones is are urgent, which ones are not. For example, if three that 1/ come in that are very urgent, all neve to be decidea at the
. 2J same time, as compared with Critical path time period of a 21 spe:ified numoer of days. It makes a difference upo, 24 scheouling.
. 23 Md. MILHOLLIN: Well, if there were no 24 i mmeciate-erf ectiveness rule, why woula that reJuce the .
25 acility of the appeal coerd to scheoule its reviews so as to Ov
57
,706'04 16
,.p take account of the need for a decision early in some cases?
T y. - W4 1 e MR. QUAYS Aren't they all critical?
3 MR. CH0 Assume that the critical path says the ,
4 appeal boara must decide all appeals within six montns.
5 MR. MILHOLLIN: So f ar, that hasn't been proposed.
6 MR. CHas But what's your assumption for making
, that statement, then? You see, I don't know.
8 MR. FRYEs May I interject something here. I
/ think mayce this may have originateJ from something I put 13 in, section 3.4. It misses the point that I was trying to 11 maka.
14 Ine point that I was trying to make really doesn't 13 have anything to do with managing the dockets or flexibility
() 14 in now you go aoout deciding your, cases. The point I was l 16 trying to mage is that, as things are now structured, tne la appeal ocara has as much time as it feels it neeos to go it into a record to oe sure that the record is complete, and 13 that by putting them in a situation wher.e they are holding 1/ up construction while they are writing their decision, woula i
. 2J nave the effect of limiting that time.
L 21 And I think it's fairly clear. I aon't think 22 anyaody hcs really disputed it, that as a result, tne
- 2a quality of tneir decisions would suff er. Inst was the point L
24 I was trying to mska.
, 26 'U . MILHOLLIN: Okay. I was responding to the e /~N.
I \~)
1 J l
l l
l 58 I 106..
p 04 l~t
\ ' MM i point Al had made aoout scheduling, and I was thinking scout 4 that because I was going to list it as a disadvar.tage, and J' the more I thought aoout it the mors I couldn't understand 4 how it would have been an advantage or a disadvantage or i 5 there would be any curtailment in his ability to schedule d the cases.
/ But your point, I think, is a valid one,.and tant 6 is it would oe a disadvantage bec ause there wouldn't be
/ enough time presumaoly for appeal.
IJ 4d. FRYE: There wouldn't ce as much time, and the quali ty would suff er. They have said that themselves, tne !
11 12 appeal ocara has saio that.
13 42. KARMAN: Farrar was of that opinion.
() 14 MR. FRYE So was Rosenthal.
15 Md. MILHOLLIN: Buc k wasn't of that opinion.
l l la TR. OSIRACH: I am not clear that there wouldn't Ie ce as much time necessarily, out tnere would be a constraint 15 upon using additional time. It would oe now that there is I/ no f actor that argues against taking ons more look. If ths/
.. 2a had a deadline, they would os -- they're on the critical 21 p ath, there wouls cefinitely have to .oe a f actor tnet would 22 nave to oe calanced against one more look. So, on calan:e, 23 they might not go into the recora quite as aeeply.
24- Is that a factor?
22 11. FRYE Yes. ihe point I was trying to mate is
~3 (b/ ,
l
59
- 706 04-01
- /T
- (-) MM i that until you - ge t to the appeal board, as the system now L i wor 4s , everyone is- on the critical path. The staff's review 3 is on the critical pathi ths licensing ooard is certainly l
- 1 4 under pressure to get -its dscision promptly. I 6 And I think, putting the appeal board in that same 6 situation would mean ~ that the quality of their decisions 4 would necessarily have to suff er because they would oe 8 pusned to come out with a decision faster.
9 JR. OSTRACH: That's what I am saying. Inere F 10 woulu now oe a f actor that argues against looking at it one 11 more tic).
12 MR. FRYEs Absolutely right.
i 13 MR. MILHOLLIN: Yes. ;
L
() 14 MR. QUAYS Okay.
l la AR, CHO Let me ask you a question, Gary. Do you la still think that there is just the same amount of is tiexibility whether or not the apaeal board is on tne 13 critical path?
19 MR. MILHDLLIN: Ye s . I can't s ee the point, I
. 23 guess.
21 AR. QUAf8 The point of wnat? Tnat there is le ss 22- flexioility?.
! 23 MR. MILHOLLINs Alan's point is that if you were r-l' 24 on the critical path, you have less flexibility in i
23 allocating our time, and I guess I just don't underst and
()
i
60
!70 04 02
'N : tnat point, oecause it seems to me that sooner or later the l 2 cases on.tna osck burner are going to have to come off tne l
- 3 oact burn er.
4 Md. CHos Except they don't have to meet a certain a presc ribe d time. Bdt with the assumption of the critical o patn, they do. So, it would make a difference depending on
- l. a the influx of proolems that came in to the appeal board, the S complexity of the problems involved, the numoer that came in l / at one time, oecause you have only a limited manpower. ?or l 13 example, assuming that six appeals come in today, and the 11 appeal ooard sees it and sees that two percent very urgent 12 proolems yet they may take a year to ultimately decide.
- 13 Iney can go ahead and schedule those two for
( ) f\
~
14 empha sis, for example, in time, and. defer tne others because U But putting l 16 they don't nave the same sense of urgency. I la everything on the critical path would remove that 1/ flexibility.
I 13 l
I/
. 2J 21
- 21 ;
l' 23 l.
i 24 26 l
()
9
l l'7 5 01 61 r MM i MR. FRYE I can see John's point. As things are 2 scheduled now, if we get an appeal from the LWA or a Cp 3 decision, it presents no problem, so there's no urgency for 4 them to decide.
5 MR. MILHOLLIN: By "present no problem", "what do 6 you mean? In terms of construction?
'= 4 MR. FRYE In terms of anything. Construction, 8 anything. l 1
9 MR. QUAY: Let's say immediately effectiveness l 10 related issues.
Il MR. FRYE It's fruitless in terms of any ongoing 12 c onst ruc tion . The way things are structured now they can 13 put that on the back burner, and if you say that the j 14 construction cannot begin until they have decided the 15 appeal, it's going to remove that flexicility.
l 16 'tR. MILHOLLIN:
. But they have to decide at some 11 point.
16 MR. QUAY: But the flexicility of reaching out to 19 t hos e --
- 20 MR. MILHOLLIN: At some point, they're going to 21 have to take away from an urgent case in order to decide 22 that case, aren't they?
. 23 MR. FRYE My perception of what happens now is 24 that it will wait for the time when they're not so ousy.
26 MR. MILHOLLIN: So we have similar periods of,
, (
f
106 05 02 62 et MM i shall we say, less work.
2 MR. FRYE There are peaks and valleys in all of 3 this. It's usually either feast or f amine. ,
4 MR. MILHOLLIN: Okay. So it's a Keynesian eff ect, 6 then. There's underemployment at certain points, and we 6 could use the back burner cases to fill in those areas.
4 MR. QUAY: Yes, and it gets precisely to your 8- point about quality of decision, too. Right?
9 MR. CHO: I agree with you, but I'm not sure that 10 I would nees ssarily characterize it as underemployment.
11 (L aughte r. )
12 There's less urgency.
13 MR. MILHOLLIN: Less of an overload? Shall we say
(') 14 it that way, John?
15 MR. CHO I think less urgency at some periods of 16 time than at others and with respect to some cases than 17 others. I la MR.'MILHOLLIN: Oka y.
IV MR. QUAY: Plus it m1;ht even make the proolem
- . 20 worse in that those cases potentially with immediate 21 effsetiveness related issues might get acted on later, just 22 due to scheculing difficulties.
I 23 MR. MILHOLLIN: In this hypothetical case where l 24 there's only a frivolous appeal or in which there's "no l l l
- 26 problem", could the Appeal Board just bat that one out rial j i i O
l l
l
I i
l lT7 05 03 63 c MM ! quict so that construction could start. You're saying under l 2 the present system they save the time of having to write 3 that opinion by being able to put it on the back burner and ;
4 do.it later.
5 MR. CHO: Let me give you an example.
6 MR. MILHOLLIN: I guess I'm just trying to
. I understand your point.
3 - MR. CHO Let me give you an example. Take the !
9 Hartsville case. The issue is there where do you locate the 10 discharge diff user. Now that issue didn't pose an urgent 11 problem f rom the standpoint of affecting construction 1
12 becaust that comes later one. You can being that, you know, !
l 13 at almest any time. Assuming that there was a seismic issu e- 1
(_)g 14 confro1 ting the Appeal Board in another case, the present 1
15 system allows the Appeal Board the flexibility to def er l l
15 worling on the discharge diff usion case because that doesn't le really affect construction, you know the schedule of 18 construction. Why they can put their emphasis on the 19 seismic issue.
. 20 MR. MILHOLLIN: So the gain would be in respect to 21 those issues in which there is no connection to 22 construction.
- . 23 MR. QUAY
- Right.
24 MR. MILHOLLIN: So what you're saying is that the 25 present system of scheduling, that the Appeal Board makes
l i"405 05 04 64 p/
s_ W4 I that distinc tion between construction or eff ectiveness l 2 related issues and the ones which don't. Is that what 3 you're saying.
4 MR.' FRYE I think so. The impression I have from 5 watching them is that they manage their docket very well,
'~
6 that they try to dispose of issues that need prompt 7 attention promptly, and that issues such as the discharge 8 diffuser which can wait because there's no pressure to get 9 that decision out immediately --
la MR. MILHOLLIN: So if they have as the same il practice but no immediate eff ectivene ss rule, they could 12 still make the same scheduling decisions, but there would l 13 just be an increased cost in the sense that construction
() 14 would be deferred on all projects.
l 15 MR. FRYE The problem would be that if you got is rid of the immediate effectiveness rule, then the Appeal i 1/ Board would be in a position of tmlding up all the 13 construction at Hartsville until it decides tia discharge 19 diffusters, you see. So that would then force them to move
,, 20 that up and try to get rid of it more promptly than they 21 would otherwise.
'22 MR. QUAY: Yes. It would a ff ec t the quality of 23 the decision.
24 MR. FRYE It could affect the quality of the 25 decision as well.
O l \
Ti 05 05 65
- MM i MR. MJLHOLLIN: Okay.
2 MR. SEGE: The absence of comparaole time 3 pressures with the immediate effectiveness rule in place 4 hinges on a presumption that the Appeal Board would 5 ordinarily not want to reverse. It would in general not 6 want to reverse because if there is a reasonable likelihood
- e that the Appeal Board would want to reverse a construction j 8' permit decision, they really properly should f eel under an I
/ awful lot of pressure to do it soon, if like a couple of
- 1) million dollars is being spent every week on the site while 11 they are writing that opinion.
l 12 MR. FRYE I think they do feel that pressure, and 13 I think they act promptly in that sort of situation.
14 MR. OSTRACH: So what you're saying is that if 15 they have the leisure to do it, you would probaoly find that 15 the time between argument and decision or oetween appeal and il decision in cases leading to Licensing Board r' versals is 13 shorter than the time between apneal and decision in 19 Licensing hard af firmances.
. 20 MR. FRYEs I think if you study the cases you'd 21 find that to be true. My impression is thet when they hsve 22 a problem with a case in general - I'm just speaking
. 23 generally now -- when they have a problem with a case, they 24 tend i.o get that decision out very quickly. When they don't 23 have a proolem with a case, it tends to wait.
. . _ __ . _ . . _ ~ _ _ . . _ - . _ _ . - . . _ _ . . _ . . ___.
~'706 05 06 66 eMM i MR. OSTRACH: Speaking as a litigator, it has 2 always been my impression and those of people who I have 3 spoken with that when a' Commission's decisions are appealed 4 to the courts or other agencies' decisions are taken to the 6 courts, the longer the time passes generally the better off 6 you are because of ten the court -- at least if there is e something actively going on, you have the impression that 8 the court if it has problems with your case is going to hit 9 you tconer.
la For example, one of the Seabrook cases languished 11 for a very long time in the First Circuit, and after awhile 12 we figured that they have to be affirming us because so much 13 time has passed that they couldn't let work go on if they
() ?^ were going to rever e us.
15 MR. CHos I think for the reasons 1rm n c'c te ci /1 16 part, too, really cannot stand.
it MR. MILHnrLIN: Okay. Second paragraph.
18 MR . CH3: And I'm not Jure about the point that's 19 being made in the third paragraph, and I wondered why 20 presumably --
21 MR. KARMAN: You mean the last paragraph an the
[ 22 page?
23 MR. QUAY: Top of page six.
24 MR. MILHOLLIN: Oh, do you think the lost l
l 25 paragraph on page five is a valid point generally?
- (a, i
\
i
,7706 05 07 61 1
' '(~
- MM i Apparently they do f eel pressure when construction is going 2 on, whether they are on it or off it. That's my impression, 3 at least.
4 MR. CHO Well I wasn't sure of the point you were 5 trying to make, Gary.
6 MR. OSTRACH: I think the point he's making is I that we can't have it both ways -- that the group was set up 8 - because the Commission felt, at least potentially felt, that 9 there was psychological pressure from construction going on 10 nhile you were making decisions. If that is so, then that 11 ought to counterbalance the pressure of being on the 12 critical path.
! 13 What you are ending up saying it that whether or
() 14 not construction is going on, there's pressure on the lo decision maker, in which case it sort of drops out of ths 16 equation. Right?
Ie MR. MILHOLLIN: Yes, that's what I would sugges t.
i 18 MR. FRYE There's always pressure on the decision 19 maker. That's my point, if construction is going on,
, 20 there's the psychological pre ssure that the Commission 21 mentioned. If there isn't construction going on, there's 22 psychological pressure here on the criitical path. We have 23 no basis whitsoever for distinguishing the relative i
- 24 importance of these factors. I think we should just note i
25 that it cuts ooth ways, and that's what we've done.
j 5
4
l 58 l PtO,6 05 08 ,
N MM i MR. MILHOLLIN: And I think it also may cut both
'2 ways on the quality of the cecision.
3 MR. OSTRACH: Pro ba bly. ,
4 MR. MILHOLLIN: If you assume people want to get i
5 their decisions out- f ast because construction is going on, j
- 6. I'm sure you could show quality of decision is any higher l
. / than it would be if they were getting out fast because 8 construction wasn't going on.
9 MR. FRYE Except you leave out one factor in the 10 squstion, and tnat's the power to halt construction.
11 MR. MILHOLLIN: How does that affect the quality i
14 of the decision? l
-13 MR. FRYE .Well, the Appeal Board has the !
/~N !
(,,) 14 authority if it f eels there is a problem, there is an issue i 15 present on an appeal which could oe influenced in its 16 outcome oy the ongoing construction. It ca7 stop the 11 construction, not permit it to go forward.
18 MR. CHO So what you're saying is that the 11 Appeal Board does not have to be conf ronted with this I
- 20 pressure of ongoing construction. They can stop it in the 21 first place.
22 MR. FRYE That's what I'm saying, yes.
. 23 MR. SEGE: Then by stopping it, they put 24 themselves on the critical path and prefer those pressures 25 to tne pressures of making a decision while construction is w) r l
b ,
l 05 09 69 lil l ;MM i going on.
l 2 MR. FRYEs I think they can review the thing l 3 s elec tively, in othe r words. In cases where you have an 4 issua present which could or would be influenced by ongoing l l, 5 construction, you ban stop that construction. In cases 6 where.those sorts of issues are not present, you don't need
- , to stop it.
8 MR. QUAY How does that make the decision any 9 better, though?
10 MR. FNYEt Well. I think it gives them more time i 11 to review the reg and polish their decision. l 12 '4R . MILHOLLIN: You mean the power to stop it i
13 dusit
- ( 14 MR. FRYE Excuse me. No, no. I wasn't talking 15 about that.
- 16 MR. MILHOLLIN: The question is, how does the 17 power to stop it change the quality of the decision? I 18 don't see the connection between that --
19 MR. FRYE It prevents th'a decision from oeing
- 20 influenced oy the fact that construction is going on. In 21 other words, they don't have to feel tr.at they've got to get 22 tb:. decision ought right now because they can't stop the
. 23 . nstruction that's going on.
24 MR. MILHOLLIN: Oh, all right.
. 25 i42. OSTRACH: It prevents foreclosure of options, 1
l i
. . . . -- - . . . - . . - ~ . . ~ - . . - . . . = - . -- , -, - ,
17 0 05 10 70 7: MM i you're saying.
2 MR. FRYE .Right.
3 MR. MILHOLLIN: Right. It's the power to prevent ,
4 f oreclosure of options. That's true.
5 MR. CHO: I think when we say 8 quality of 6 decision", we're not really talking about the ultimate, l l
- I substantive decisions reached, but how that is expressed in i S opinions. l i
9 MR. FRYEs Yes, aosolutely.
10 MR. MILHOLLIN: Yes. Okay. j 11 MR. CHO: You know, whether it's clear and 12 comprehensive.
13 MR. MILHOLLIN: Well, what do you think aoout j
( 14 Option 2 then in comparison to the other options having gone ,
i 16 through this?
I Io On, excuse me. We're not through it yet, but I'm.
14 willing to concede that my paragraph here on page six in the 18 middle is, well --
- 19 MR. QUAY
- that's why I wanted to ask John if he l
L- 23 likeo that.
21 MR. MILHOLLIN: It's not a very strong paragraph, j
~
l 22 and I don't think the point it makes is terribly important.
t
. 23 MR. QUAY: Can we wipe it out?
24 MR. MILHOLLIN: It can stay in or go out. I don't
{ 25 really care.
i-
.o
T/0 05 11 71
- :304 1 MR. OSTRACH: That's the ebb paragraph.
2 MR. QUAY: I think that's strictly conjecture.
3 MR. SEGE: I think there's another good reason for 4 leaving the argument out, and that is that the Appeal Board 5 panel, unlike the Commission, is not limited to a certain 6 numoe r of people. So if there ten times as much wort.
- 1 they could enlarge the panel .e care of it.
8 MR. OSTRACH: Furthermor although I really feel 9 a little bit guilty of animal abuse in beating a dead horse 10 here, construction permits are not the only adjudicatory 11 matters that the Board has. I'm informed that the Licensing 12 Boards, for example, are keeping busy with spent fuel pool 13 expansion cases and other non-Cp/0L matters that are soaking !
14 up large amounts of time.
15 presumably that dabble will reach the Appeal panel lo sooner or later. j 17 MR. MILHOLLIN: Yes, it's getting harder to expand la fuel pools these days. That's true.
19 MR . CHO I think I have one more disadvantage --
20 is that the repeal of the immediate effectiveness rule has a 21 greater e ffect then necessary. And what I mean to say is I u 22 that a lot of the appeals, in fact most of the appeals,
. 23 really do not involve go or no go type issues.
24 MR. KARMAN: It's an overkill.
l 23 VR . MILHOLLIN: That's really I think a comment in O
l
- . . . . ~ . - . . .
l l
1 I
- 706'05 12 72 l
.f) l
\v/ - MM i comparison of the options.
2' Steve, did you want to suggest another option f or l
3 consideration here?
4 MR. 0STRACH: Yes. This is something that first 5 cams up in the minds of the Cornission. I would say, in 6 relation to the .Three Mile Island Unit-l restart proceeding
. 4 or perhaps even earlier' when they were talking about the 8 restart of the Babcock & Wilcox facilities that were shut 9 down af ter Three Mile Island. And I don't claim to have IJ thought it out very extensively, but I do want to put it on- J li ' the table. l 1
12 It would oe, under the present system, an adjudicatory arm of the Commission under the present rule, 13 ;
) 14 the Licensing Board authorizes issuance of a license. The 15 license is then issued by a ' regulatory arm of the 16 Conmi ssion, I guess NRR. Now it is a fact that the 1/ Commission is the ultimate superior of both of these l 1B institutions. ele in this group have so f ar been thinking of 19 the Commission only in its adjudicatory mode, that it would 23 review the Licensing Board decision or stay the Licensing 21 doarc decision or something along those lines.
~
! 22 At least nypotheti: ally, I would like to suggest
- , 23' that perhaps there would be some room for the Commission to j
l ' 24 act in its regulatory mode, in a sense reviewing or l
' 1 22 supsrvising the action of- the regulatory arm. Now obviously l
! r~T.
V l
I7' 05 13 73 I
- MM i right now there is no action of the regulatory arm to j l
J review. It's mechanical. They have to issue the license l
3 after the Licensing Board decision. l 4 But what I'm suggesting is a potential 5 modification of the rule that would give the Commission some 1e 6- opportunity to, in a non-adjudicatory fashion, do what the
- 4 Commissioners have been referring to as a checkoff or scan 8~ or overview of the process before the license is issued, 9 subject to subsequent adjudicatory review when the case 10 comes up through the adjudicatory arm.
Il MR. FRYE What do you mean by " process", when you 12 said a scan or overview of the process? What would they be !
13 looking at?
( 14 MR. OSTRACH: It depends. In these various cases, 15 various things have been suggested. In the case of Diaolo 16 Canyon -- excuse me, not Diaolo Canyon -- Rancho Seco and 14 Oconee situations, which I understand these are operating 18 cases s these are not at all like present rules, but it's
- IV somewhat similar -- the Commission provided that NRR would L- 23 cons in and brief it on the matter on the record, and it 21 would then issue a decision. Actually I think it would 22 then decide whether or not to alter NRR's decision to permit
- . 23 re sta rt.
i 24 In Three Mile Island Unit-1, the Notice of Hearing 2a provides that af ter a Licensing Board decision, the
.O l
l l
l D06 05.14 74 c WM i effectiveness question jumps up to the Commission for H 2 Commission consideration on expedited review with 3 somawhat -- something like adjudicatory review. There would ,
4 be some opportunity for papers to be filed.
5 But the Commission is ' fairly clearly not going to 6 be bound solely on the record produced in the t.icensing 7 Board hearing. There will also be a full ad,ucicatory 8 review of the Licensing Board concucted by the Commission.
9 But my point is, there are these two separate 10 tracks and the effectiveness review will be the Commission 11 at least potentially acting as a regulatory body.
12 MR. AARMANs Now all of this presupposes the 13 Commission does nothing until a decision has been reached by
() 14 a Licensing ' Board? Because the proolem. involved is, if to you're talking about before this thing goes to a Licensing 15 Boara, then you can see what the proolem is.
I4 MR. OSTRACH: This is af ter a Licensing Board 18 decision. I'm just suggesting -- I'm not even suggesting 19 it, I just thought I ought to raise that there might be some
, 20 possibilities in this ares -- some sort of Commission action 21 bassa on discussions with staff, perhaps in a public forum, l~ with some opportunity for input, whether this case raises L 22 l
23 such substantial issues or cifficult issues or special 24 issues, so that while the adjudication goes on -- in a 25 sense, I'm saying something like a stay.
Tl 05.15 75
?W i MR. FRYEs I can't really distinguish it from a
'2 stay, except to the extent that you mentioned something in 3 there about not necessarily being cound by the record.
4 MR. OSTRACH: Sure. ,
6 MR. MILHOLLIN: Or any stay criteria, presumably.
6 MR. OSTRACH: Or the stay criteria. It's just
- 1 a suggestion. If they went in a non-adjudicatory mode , they ;
8' wouldn't be bound by the record.
> MR. FRYEs But how could you switch having been
^
IJ through a hearing in which an applicant comes in and gets a li f avorable decision, let's say, that under the rules and the !
i 12 statutes he's entitle to restart or whatever, and then this l 13 is going to somehow go up to the Commission who's going to
( 14 get away from this record and make a decision based on 15 something else?
15 MR. OSTRACH: The reason I'm discussing this, of l 17 course, is cecause of the Three Mile Island type matters.
l la But let us say that everything is fine. It gets to the j 19 Commission, and the Commission says, "You know, you're quits
- - 20 rightl the regulations say" and all t.his, but we happen to ;
1 1 21 know or we happen to be planning on instituting a new siting l 22 regulation in a couple of weeks that will ,orovide you just
. 23 can't build this plant. It's not in the regulations.
24 That's what we're going to do. Or we beve got investigatory l 23 information that didn't appear in the record of this cast O
16 l '706 05 16 7MM i that indicates your company president has sold his sould to
! 2 .the concrets manuf acturers or something like that.
3 MR. FRYE I guess my proolem is, aren't you 4 raising-some due process problems?
5 MR. OSTRACH: Sure , maybe.
6 MR. FRYEs Aside from that, it sounds to me like
, 4 basically what you are saying is that rather than make a 8 stay motion to the Appeal Board, the parties would make it 9 to the Commissioners, and perhaps the criteria would be 10 somewhat different than they currently are.
11 MR. OSTRACH: Plus one other f actor. Presently, I 12 think staff feels constrained -- I know the regulations 13 permit staff to act with repect to a license, even though
() 14 matters are before a Board. The regulations provide that.
15 But I expect that staf f f eels somewhat constrained from --
16 MR. FRYE Regulations also provide for the Board il to ove rrule what the staf f does.
18 MR. OSTRACH: Right. Now what I'm suggesting is, 19 let us say there was a case where something goes to the
. 20 Soard. It issues a decision. The very next minute can 21 suspend the permit, you know, the .pe:'mit just issued, and
~
^
22 they could do that not on the basis of record information, 23 on tne basis of new information or other judgments. It l
24 would then have to be tested in a hearing.
25 Perhaps there's some area for the Commission
- O -
A j'70 05 17 77 O MM i getting some of that.
l 2 I apologize. I recognize . this isn' t a very i 3, focused discussion.- It's very late in our proceedings to _
t 3
4 bring.it up, but I wanted at least to say something about i
a it.
6 MR. SEGE: Let me explore this for a moment from a l, e somewhat dif ferent angle. . When a Licensing Board makes a 1
S f avorable initial decision on an LWA, then that is 4 9 permissive rather than mandatory as- f ar as the staff is 10 concerned. It means the staff may issue the LWA but doesn't
! ,, 11 have to do it within 10 days. Is tha t correc t?
y 12 MR. OSTRACH: That I believe is the staff's legal-4 13 . position. Yes. In practice they do it.
(f 14
- lo l
l 16 i
18 19
. 20 21
. 23 24 25 O
4
1
'106'06 Ol' 't 8 MM- 1 In practics , they do it.
2 1R. SEGEs. But they wouldn't have to. So, in that 3 cass,- NRR decides in each case we will or.will not issue- the 1
4 .LWA promptly. They always decide, yes, out they wouldn't )
5 '
have to. <
.a I
~5 Now, that decision is a decision by a program
, 7 office which is. supervised by the commission in its 1 3 managerial capacity rather than in its adjudicatory 1
/ capacity. 30, that decision in the option.that you are l 13 propo sing , that sort of decision could oe reviewed oy the
- 1 1. commission, and the commission could come to the same 12 concl us ion , issue it promptly, or it may come to the H I
13 conclusion, " dell, I will hold off for a while," for any I
(); 14 -rason that is in the record or not within the record.
15 MR. OSTRACH: That's what I am suggesting is 15 po ssi ble.
Ia '4R . S EGE: Now, we could do the same thing with 13 construction permits. The regulation could oe changed so 19 the constrution permit is handled on a permissive rather
. 23 than mandatory basis, and the commission coald do the same 21 thing.
l 1
', 2> '4c w , what nappens if you do this with a
- j. 23 construction permit and the commission says to NRR, " Sura ,
l 24- go ahead ana issue the permit pror.ptly," ana then a few l
- 23 montas into construction the construction permit comes O
i .
m
L 79 lFs060602
- f'
(_%) T4 i before the commission in tha normal course of adjudicatory 2 review, and the comnission Jecides to take review. Would 3 there be proolems then in the comnission reviewing the ,
4 soundness of its own decision to authorize construction to 5 start promptly? .
6 MR. OSTRACH: They wouldn't be reviewing that ,
a I issue.
3 MR. QUAY: Why wouldn't they?
/ MR. OSTRACH: Because that's not what they would 10 oe reviewing. They would be reviewing the soundness of the 11 licensing ocard's initial decision or the appeal ocard's i 12 appel' late decision. They wouldn't ce reviewing their own 13 regulatory decision. It wouldn't ce the suoject of the
() 14 review. It's -like saying the commission --
They said 15 4R . S EGE: It's sort of a legal nicety.
13 go ahead and ouild the plant and six minutes later they 11 squashed it.
IS 4R. OSTRACH: The/ decidea not to exercise their 19 discretion to stop it from oeing licensed or stop it from 20 construction.
2i '4R. FRYE Steve, I just don't understand where 24 fou can have an adjudicatory process where an appli: ant is 23 tola he can come in, meet certain criteria, and get a 24 license; then have somebody in the commission --
23 stru:turewises c o mmi s sioners , itself , staff , or anyoody l .
\_)
- r706 05.03 80
' MM i elsa -- decide on reasons completely colleteral to what's in 2 the record that it can't have a license. ,
1
-3 MR. KNIEL: As a practical matter, the staff I .)
4 don't think can do that undar the way -- the strict 5' enforcement of these -- of the need to inform the boards of i any impending issue. In other words, the sta ff has been ;
l
, s held responsible to inform the boards very promptly of any 8 issue that could operate or affect a pending decision.
> So, the staff would have no reason not to issue a 1] permit that was authorized by a board very promptly unless 11 that issue was generated in the short time interval between
- 12 the time the decision is made and the time we get it over in 13 the Phillips building.
( )' 14 So, the staff doesn't have the discretion to not 15 issue the parmit either for an LWA or for a Op principally iS cecause it wouldn't have a casis uoon which to do that, and 17 if it did have a basis, it would be accused of withholding 13 that basis and the information from that basis from the 1/ ooards.
. 20 !.i R . O S T R A C H : That's true of the staff, but the 21 commi ssion is not under -- the connissioners are not undar 22 eny similar obligstion to inf orm the boards of what they're l
23 thinking.
24 MR. KNIEL: I was woncering about that point.
1
- 2) :42. OSTRA0H: The/ aren't.
C:)
4
. _ ~ - . _ . _ m I
l-l70 06 04 B1 l , ld 1 '4R QUAY: What makes them better qualified --
l 2 MR. MILHOLLIN: Wait a minute, Steve. How can 3 the/ be part of the staff for purposes of deciding whether l
4 the LWA is going to issue and not os part of the staff for 5 purpo ses of informing the boards ?
o 74R . OSTRACH: I am not saying they shouldn't on.
. 4 I am just saying they presently do not now, if commissioner S one receives a report from OI A or his legal assistant or has i
s a discussion with commissioner 2 that indicates that, you i
13 know, he really thinks thers is a problem with safeguards or j 11 something else, they do not send a message to the licensing l l
12 coards now, where the director of N4SS would. :
13 If the comissioner, on the other hand, is the
(~T~ person who oecomes concerned about this or oecomes aware of l
s_/ 14 l
13 this information, he doesn't tell the licensing board.
13 So, your point is quite right. It is unlikely Ia that the sta ff will have an/ basis for not authorizing --
IS for not issuing tne permit that it nas not previously 1/ conesyed to a board and therefore that the coard should oe
- 2) aware of.
21 T.ie co:qmission, on the other hand, might, cecause 22 the/ do not now tell the boards all the reisvant inf ormation
. 23 they have in their possession.
24 MR. MILHOLLIN: The reason they don't is oecause 23 they're adjudicatory officers, and now we're proposing L
(n
_/
.. . ~ . - - . . . _ . . ._. . . . -- .
t "to 06 05 32
'M i changing th31r status to staff offices, which raises the 2 question whe ther they have the obliga tion, it seems to m3.
3 MR. OSTRACH: But they are staf f o ffices.
4 MR. KNIEL: Considering the immensity of the 5 review effort, it's unlikely that the commission, with their 6 limited immediate resources, would have such kinds of
. / i nf or/ n tion, I don't think.
3 HR. OSTRACHs But the commission has a greater 9 opportunity to make changes in policy. Staff would be much 13 mors likely to uncover technical difficulties that this typs 11 of pipe has oecome - you know, it becomes clear that it's 12 going to corrode. But the :ommission might have in mind a 13 factor that, for example, they are going to -- they are very
() 14 seriously thinking about changing siting criteria to provide la that no new nuclear power plant can be ouilt within 20 miles la of a certain size and, by god, this plant is 12 miles away 1, from a city of that size. That being the case,,the 13 commi ssion might well -- you know, they haven't communicated 19 that to the board. Staff has no knowledge of tnis, or at
. 23 least no way of oringing it up. The commission might want 21 just to not issue the permit.
~
22 MR. KNIEL: I cisagree with your statement that 23 the staff would have no knowledge of it. The staff would l 24 not have an/ knowledge of waat the commission's impending l
-decision was, out it would :ertainly be totally 2;
(
NO -06 06 63 "3 .iM i .cnowleogeaole about what tha proposal was to change such a l l
2 regulation.
i 3 MR. OSTRACH: Maybe, mayoe not
'4 MR. KNIEL: Steve, gosh, this just seems to me is 5 f ar into the morass of let's forget about the Administrative 6 Pro:edure Ac t.
If you think the comnission is under !
. / MR . K ARM AN 3 severe criticism now, this would have them before a firing
/ squad.
13 MR. MILHOLLIN: It sounds to me as if want they 11 want to do is mere an informal checkoff on effectiveness in 12 every_ case.
13 MR. OSTRACH: Yes.
r^) 14 MR. MILHOLLIN: That's what they want to del isn't
(_/
13 it?
la MR. OSTRACH: Yes. I want to restate, oy the way, il I am not sponsoring this option. It's sometning the 13 commission is doing in other 2reas that I have some reason 19 to believe at least some commissioners might be interest 3d
- 23 in, and I went to bring it to your attention. If everybody 21 egrees that it's a nonstartir, it's a terriole ides, fins.
22 MR. FRIES So long as they make their decision on
. 23 the recora, I don't think I have any real problem with it.
24 But I think they have to ma'ce a decision on the record.
2; 4R. MILHOLLIN: I don't have any problem with it,
(~)
v
(
i, 1 . _ _
1
'70 05 07 84 M'i I eitn3r. I think I agree with John. I tnink it seems to me 2 that's a legitimate function they could take. They could 3 say, "Look, we think construction is something we should 4 look at." I think that's something that's perfectly within i their power.
6 MR . K ARM AN: Based on what?
. MR. MILHOLLIN: The question is how they're going D to do it.
/ MR. FRYE That's why I say as lona as it's en the 10 record.
11 MR. MILHOLLIN: That's what bothers John. It 12 see.as to me it would be a better decision if it's on the 13 record.
("h
-)
m 14 MR. KARMAN: It seems apparent, from what Steve is 15 saying, that this is not what they have in mind, casing it 13 solsly on tne recora.
i 17 4R. OSTRACH: Not on the record that has been 13 compiled before the board.
19 MR. FRYE: Then I have a problem.
. 20 '{R. QUAY:
I have got a problem tnere, too.
21 AR. SEGE: Let me ask a question in connection 22 with LWAs, the apparent inconsistency between the staff's
. 23 theory ano practice on LWAs. The sta ff's practice is to 24 issue L.1As promptly. But the staff's theory is that they 23 don't have to do it, and that they tie it at their O>
a 6 a,. 4 .e-- 4-,--,- B- J -G aa-~ -K 0- L-4+-- e \ k 3 e. ai 6 J:,-~2.- a'u.wa- -_
i706 06 08 85 (3
\,2 WA I ais:retion.
2 -MR. KARMAN: Is the staff theory or the 3 regulations we're talking aoout? It's not staff theory at .
4 all. It's a regulation.
5 MR. FRYER All the regulation says, George, is if
-6 a CP issues, the staff has 10 days in which to physically
. I ge t i t out. Now, it says in an LWA, that IO-day provision d -
does not apply to the staff.
/ But I think that if the staff took the position, 10 f or i nstance, after an applicant had gotten a favoracle LWA 11 that for some reason it wasn't going to issue that LWA, I 12 would suspect that the applicant would have a damned good 13 case for going down to the cistrict court and furcing the
() 14' staff to issue.
la 13. SEGE: Is there a theory behind the l 13 oistinction in regulations, or is it just an accidant of f
Is crafting?
! i i 13 MR. KARMAJ I think it's just inadvertent. !
J L
1/ .AR. FRYE It may have been inadvertent. I don't l
. 2) know why it's there.
2: Mf, SE3E: That answers my questian.
24 4.L JILHOLLIN: John, I assume the case for the 23 appli ca nt in that situation would be that the comission is l
- 24 not following its own rules. I mean, on what could the 2a applicant ocse his case? ,
A .
l to 06 09 36 l i 'Et I '4R. FRYE Are we talking about the LNA?
~
4 Md . MILHOLLIN: Yes. You said the applicant could 3 go to court and force the staff to issue the LWA.
4 MR. FRYE I would think so.
5 MR. MILHOLLIN: Wnat would his theory be? That
- l 3 the regulations require it? -
. I i43. FRYE He's complied with the statute and the
)
3 r egul ations t he's been through an adjudicatory hearing on 9 the records he's gotten a dscision on the records and now 13 somsoody within the agency says. "For reasons that aren't on 11 the record, I am not going to give you a permit." I just l
12 don't see it.
13 Md. MILHOLLIN: If you change the regulations,
() 14 though, he :ouldn't case his case on those anymore, and 13 that's wnet the connission is considering doing.
la 'Q. FRYE:
. I thin 4 you would also procaoly have to Is change the Administrative Procedure Act and the Atomic l l 15 Energy Ac t.
1/ MR. MILHOLLIN: Is that right?
- l. 23 Md. FRYE The Atomic Energy Act requires a 21 nearing on the recora, and the Adninistrative ProceJure Act
[ 22 tells you waat tnat entails.
l, 23 htR. OSTRACH: It doesn't r'equire a hearing on the 24 record prior to revocation of a license.
- 2) MR. FRYE But there has to be a reason for that.
l l
i TiO 06 10 87 Ml4 I You c an't do it capriciously.
2 '4R. OSTRACH: The conmission's decision not to ,
3 autnorize issuance of a license would be a decision in 4 writing. They wou.id be forced to make a decision. In that 5 sense , it would' be on the record.
6 But I am saying the connission, I guess, does not
. . want to be compelled to base that decision upon the 3 previously compiled record.
/ 'R.
. FRYE That just bothers me.
~
IJ 4R. OSTRACH: I think the commission would argue 11 that they would like to be in the same position as dRR is to IJ suspend the license the next day. They are willing to 13 accept that standard.
) 14 4R. FRYE8 NRR has that power, sure. But NRR Just 13 can't exercise it capriciouslys there has to be some good la reeson for suspenJing.
1/ :JR. OSTRACH: I am saying the commission would 13 f ace up to that, would identify its reason for' not issuing Id the license in this case. What the evidence or information
- 20 that was not previously on the record is that leads them to 21 this conclusion. And I am sure they would oe prepared to
. 22 then allow a hearing to test the valioity of this action.
. 23 just as if NRR suspended a CP because they found out the 24 concrete wes of inferior quality. The commission would say 22 that we aren't suspending -- we're not issuing this license l
(
- (~>\
\ .
!f7 06 11 88 MM & oecause of tnus and such, and they've got a right to a 2 hearing on the legitimacy of that action. Sut they don't 3 want to be cound on material that's already in the recoro.
4 MR. FRYE Maybe we're talking in semantics.
5 Certainly, it's a simple matter. I would think that if they 6 are aware of something justifying not issuing the license or
. a suspending the license, it's a simple matter to get it in 3 the record.
/ MR. QUAY: Get it to the staff.
13 AR. OSTRACH: But what we're talking about is an 16 event to trigger their thinting. Sure, you're quite right.
( 12 It logica11/ would os easy for the conmission, once this 13 matter is in their mind, you should just make sure it gets
() 14 to the right people in the right proc eedings so that it's 15 takan into account oy the licensing ocard.
la In fact, that's not the way the commission le operates. They need an event. They need a licensing board 13 decision that gets them focused on the subject. It's only 1/ then that they wou1J say, " lou know, we really do have this
- l. 20 proolem around that we've never quite gotten around to l l
21 a ddr9 ss ino, out, by god, we c an't let this license issue.
22 .iow it's time to deal with this proolem."
. 23 Md. KNIEL: That's aroitrary and capricious. If 21 the staff did that, they would be horrioly criticized.
23 M7. MILHOLLIN: I would b9t you tnat once t his
/~ .
\ >T
l
!I 70 06 12 89 T.i i alternative is really investigated, most people would agree 2 it's simpler to acolish the immediate-effectiveness rule 3 than to adopt that procedure? .
4 MR. OSTRACH: Perhaps we should say it, perhaps we 5 should terminate this discussion. I am getting nothing out 6 britc bats and catcalls. And my persistence is worn down.
. / MR. MILHOLLIN: Nothing personal, S teve.
3 ' MR. FRYE Let me c:s 11 I can put what you ars
/ saying in a little different framewcrk that maybe wouldn't 10 nave the difficulties I havs with it.
11 If a decision -- I could see that the rules could 12 oe amended, for instance, to take a ascision to the 13 commission in the question of whether a permit shouls issue
() 14 on the strength of that decision. And I would have no 1
13 proolem with that. But I think they would have to case 15 their reasons f or their ultimate conclusions on whether the 1, construction should oe permitted to start, on the recora.
13 And if they had something in their minds that 1/ wasn't in tne recora, I think it would os simply a question
. 23 of ge tting it into the record, giving the parties an 2i opportunity to address the aarticular f s: tor tnat tney had 22 in mind. If it was something that required that
. 23 construction be stopped immediately or not permitted to 24 start immediately because of the severity of the thing that l 23 the/ had in mind, I think they have got the ample power to
('
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_ _ _ . _ . . _ - . _ . ._ .- ~ . _ _ _ . . _ _ _ _ _ _ _ _ _ _ . __ __ _ _ _ _ .
~
i-l l
li 06 l 3 90 !
l
~
44 I say,' "We are going to hold this up pending resolution of thi ;
l l 2 record." ;
I 3 You see, if it is structured that way, it seems to I 4 me we could probably work it out without difficulty. But if 1
l 5 you j ust sort say, " Gosh, we are thinking aoout changing the ,
- i. ,
I 3 rules to prevent siting a plant of this size within 20 miles j i ,
- l. I of a city of this size, and therefore , no permit," I think l 8 you've prooably got a probism.
l 9 4R. OSTRACH: Let me see if I can restate what ,
1] fou're saying. Af ter a licensing ocard decision, the matter ;
11 goes to the commission immeo'ately for a decision solely on 14 e ff ec tiveness. The commission offers perhaps the parties a 13 chanc e to suggest whether or not there are any particular
) 14 . issue s on effectiveness and whether there are any new policy 13 matters or the record needs to De expanded in any way. And la if it itself feels that, it puts them on the record.
ll 'fR. FRYEs Yes.
13 '44. OSTRA0Hz The commission says, "And <
l I/ furthermore, we are thinking about expanding the siting rule
. 23 in such and such a fashion," gives the parties a chance to 21 somenow adaress that- and then makes an e f f ec tivene ss 2d ' decision on the record. Is that what you had in mind?
23 MR. FRYE That sort of thing. I think if they're l.
i 24 talki ng about some thing -like siting, that they would be well l l
23 advised to issue some sort of a policy statement or a 4
l-
970 06 14 91
- 'N
. 1 prooosed rule or interim rule on that suoject when they are 2 read / to act on it, rather than waiting for a case to come 3 up.
4 But I think, Steve, it's really the same sort of 3 thing that I was trying to discuss in 3.8 on making 5 e ff se tivene ss an issue. in litigation, and I think if you
. 4 just substitute the commission _ for the appeal board, we are 3 really talking aoout something that's very similar.
9 M3. MILHOLLIN: Except, Jonn, that the commismion IJ might have a reason for wanting to postpone effectiveness, 11 that the licensing board wouldn't know aoout.
12 MR. FRYE Well, that's why I am just --
13 M3. MILHOLLIN: Or the appeal ooard.
() 14 MR. FRYE They could say, "We're concerned aoout 15 this factor, that's not in the record, whether that 13 justifies holding up on this particular start, and therefore 1/ we're goin) to send it oack and we want a hearing on that."
li If tae factor is of sucn severity tnat construction ougnt to 11 be held up until it's resolvsd, I think they have the power
- 2) to do that.
21 'H. AILHOLLIN: You prompted me to think of this, t
22 anc that is tnat the commission may have reason X for not
- l. 23 wanting to let the permit becoma effective, but there might 24 also be reasons Y and Z in the case for not letting it 2; become effe:tive either, which the cocmission isn't thinkin]
r-(_)s I.
I
L I
l'
!f706 06.15 92
<g k / 'N I about. So that wouldn't replace necessarily what we are 2 considering here.
i 3 MR. OSTRACH: Oh, no. l l
4 MR. FRYE8 Oh, that's in the record, and they 6 would base their decision on that. That's correct.
6 MR. CHO Still, the commission cannot act :
, a rbi trarily. There are due process requirements, like fair ,
3 - notice and opportunity to argue and so forth. So, while it )
l
> 15 co rrec t, you know, the commissioners are our ultimate l-13 superior, the commission doisn't necessarily have the power l !! to ac t willy-nilly. And I still think they are confined to l s 12 the record and to give the parties f ait notice and 1
r 13 opportunity to argue their position. I
-()
~
14 Another problem I have, I think, with the original la suggistion that Steve had presented, is that while it may os i
IS true that staff may do certain things, staff is not a 14 decisionmaksr, but when you talk aoout the commission and
! 13 then say the commission to replace the staff in that s ens e .
1:/ then you're making the commission both a decisionmaker and a
. 2S prosecutor if you will make that kind of knowledge in ths i 21 seme particular case. And I thi n': that would raise very 24 serious due process questions.
23 MR. FRYE I thint the whole thing har to ce l
24 structured to keep 'it within the confines of tb record and 23 to provide for expanding ths record where necessary.
l.
O c
i e
i T106 06 16 93 '
'04 i WR. OSTRACH: Okaf.
MR. QUAY: I f that's the c a se , the n , i sn' t it 3- really repeal of the immediate-effectiveness rule? ,
4 MR..KARMANs I am agreeing with Garys if that's -
5 what this will do in effect, why go through all that 6 nonsense? Just repeal the immediate effectiveness so we
. I don't have to worry about it.
3 MR. QUAf That's it. And they can take it up
> when they review the case.
.13 VR. MIL 90LLIN: But it seems to me also tnat this 11 need that tney seem to f eel for checking off on 12 effectiveness is going to be there no matter what we j 13 recommend because even if we recommendeJ that the rule
() 14 should be soolished, there is going to be some point at 1.> which the decision is going to become effective even if 13 there is no immediate-effectiveness' rule for licensing oserd
-1, cecisions.
13 At some oint, an appeal ocard, under one of these 1/ options, is going to say, "Go ahead and ouild the plant."
. 2) At that point, you still 'come back to the need for a 21 chereoff. So, it seems to me tnat this device is going to 22 os superim,oosed on wnatever system you have if it's 23 implemented.
.2 % 1R. ? RYE You certainly nave got to make a 23 decision at some point in tne process as to when you are O .
l 1
1 i
i' l
l 77M 0617 94 l
g %t I going to permit the guy to go ahead.
I '
a MR. MILHOLLIN: It seems to me as if this process 3 is just added on to that. .
4 MR. FRYE This is .Just simply that the two
- , 5 alternatives basically are look at a decision, an initial 6 decision, and decide whether you think that there is any '
. I reason to hold up construction pending appellate review of 3 some issue in that cases the other option is basically to
/- say we're going to hold up construction across the ocara IJ until we finally decide it in the agency on tne case. l 11 And I suppose you could imagine other interim --
le VR. MILHOLLIN: Pe rmuta tion s. 1 i
13 MR. FRYE: Permutations or combinc , ions of that.
, ,/~g U 14 That's basically the two options.
15 4R. OSTRACH: There are three options: The re i s ;
l 13 the option of the licensing coard decision in tne present -
i 17 syste mi the licensing board decision goes aheads the 13 repael-the-rule option, which is nothing happens until 1/ everything is finisned; and then there are a variety of
. 23 in-cetween things -- stays or resolution of .
21 imm3diate-ef f ectiveness issues or some eneczoff or anytning 22 li'<e that, everything else in this gray area.
. 23 And it's a matter of putting enough meat on tha 24 gray area to satisfy everybody's concern, yet not let the 2; bad cases slow up the whole system.
O l-l
l l
r%
I L 15 lJsG]0631 l
l pv MM l' MR. MILHOLLIN: John's point, there seems to os a -
4 choice between not letting any case go forward by aoolishing .
3 the rule, or trying somehow to divide the cases.
4 MR. FRYE Selectively select those cases where l 5' construction ought te be held up during appellate review.
l
. 6 MR. MILHOLLIN: Somehow weed the cases out.
1 - MR. FRYEs I think those are the two basic choices 3 we've got, and, of course, we have the one we're not
> discussing, about changing --
10 Vd. MILHOLLIN: That, I gue ss, is another method l 11 of weeding out cases.
12 MR. FRYE It also presents a method of weeding
( 13 out c ases. And I think our information that we've got tnat 14 indicates that has oeen f airly effective over the years of b weeding out cases.
15 MR. MILHOLLIN: Yes. I think that's true.
- 1. Certainly, che LdA process has oeen effective in weecing out g 13 go/no go issues, environnental issues and site-related
.. . 11 issue s as opposed to other issues which aren't connected 2J witn construction. ,
21 MR. KNIEL: At least initial construction.
. 2> 'R . MILHOLL IN: At least initial construction.
23 That's right.
24 25 0
i
96 CR 7706 MELTZER t-7 mue 1 I MR. SEGE: A question that' Steve brought up which 2
we have been discussing: How would it be just to ask Steve 3
to write up a paragraph or two on it in his writeup on 4
procedures other than direct review that will capture the 5 essence of the discussion this morning?
. 6' MR. CHO: I would disagree with that? What is the
- 7 purpose of discussing it if we find that it is so fatally 8 '
flawed?
9 Well, there is something rather analogous MR. SEGE:
10 So to it happening in a special case of Three Mile Island.
11 it's not that far-fetched a suggestion. But we considered it, 12 we found it flawed, and I think that not losing the analysis l 13 of the flaw could be of some value. 1 MR. OSTRACH: I have perhaps a better place for )
l putting it. I'm already supposed to be. writing a section on 16 the interim modifications of the immediate effectiveness rule I7 because of Three Mile Island. This idea is an outgrowth of 18 my work on that matter for the Commission. And logically, l *. " therefore, this would be a very helpful way of, say, concluding 20 You know, as a result of Three Mile Island,
[ that discussion.
21
. the Commission has done thus and such and thus and such.
22 This has some possible implications. Or, the group considered 23 whether this had any possible grander implications, but feel 24 thus and such, thus and s,uch.
i
' 25 You know, two paragraphs at the end of that l l-l 1
~. _- - - - .-.
97 mta 2 1
discussion, which hasn't been written yet, because the O 2 Commission hasn't yet finalized what its reaction to TMI is ,
3 Is that a reasonable place for it? !
l 4 MR. MILHOLLIN: It would be a good thing to sum up l 5 what the thoughts are on these possibilities and how it relates 6 to our work, and the Commissioners are going to want to know 7
that, I imagine.
8 MR. KNIEL: You keep Dringing back in connection 9 with what they're doing on Three Mile Island. I think the 10 distinction is, where the Commission wants to function as a 11 superior to the staff, it can do that effectively in areas 12 where the staff is essentially initiating and doing the 13 action, in other words, where there hasn't been a long
[}
14 adjudicatory process that has come after the staff action has 15 completed.
16 All the cases you're talking about, you know, 17 restart of B&W plants, are cases where no additional hearing, 18 immediate hearing before the action was required. So that 19 the staff is doing the action and the Commission is exercising
, 20 their prerogative as the chief of the staff to be involved 21 in that action, whereas in these other cases you have an 22 action that has been preceded by, you know, the staff review 23 and its issuance of its review and the ACRS review. And So that's all on the 24 then the licensing board reviews.
A neomn. im.
25 record.
I f
l
.. . . . . . _ . - .. . - _ _ - - - . . ~_-
98 mts 3 I It's all gone hrough that detailed process, and 2 therefore the Commission action at that point I think would 3 have to be in its adjudicatory role, not in its staff role.
4 So I think -- the reason I'm discussing all this is becaus2 5 I don't think the analogy applies to the case we are discussing 6 here. I think it's a perfectly appropriate thing for them
, 7 to do where the action conte $tplated is one by the staff 8 itself.
9 MR. OSTRACH: But they are doing it in connection 10 with the Three Mile Island Unit 1, which will come up after Il a hearing, and they seem very likely to be doing this or 12 something like this in connection with all new cps and OLs l'h 13 as a result of the analysis of Three Mile Island. Your point V
Id is logically a very good one, but it's flawed in that the 15 !
Commission doesn't seem to be paying any attention to it.
16 I agree with what you're saying. Logically you're I 17 probably right, and I really don't see the need for any 18 further discussion. I think you people have made very sound
' l' arguments against it and I think it can be very nently taken 20 care of in a couple of paragraphs in the section on the 21 Commission's response to Three Mile Island.
22 MR. MILHOLLIN: Shall we break for lunch?
23 (Whereupon, at 12:10 p.m., the hearing was recessed, 24 to reconvene at 1:30 p.m. the same day.)
& s neoonen,sne. .
25 j l
i l
l ,
99
=mto 4 l l
i 1 AFTERNOON SESSION l O 2 (1:30 p.m.) i l
3 MR. MILHOLLIN: Back on the record. j i
4 Ted has given me a note asking whether we might set I 3 a deadline for the remaining writeups. As I recall, ,
I 6 John Frye and Bill Lovelace's materials are pretty much
, 7 finished, are they not?
8 MR. FRYE: I think they're pretty well finished, 9 .but I do want to meet with Bill to discuss some of the figures.
10 As I indicated earlier today, I'm somewhat concerned about 11 some of the data that we have.
12 MR. MILHOLLIN: Okay.
() 13 Ted, should we start shoot:37 for a third draft or 14 should we wait until we get substantially more material 15 before we do that?
16 MR. QUAY: I'll tell you, as far as the first two l'7 sections, the first two chapters are concerned, I think 18 they're in excellent shape, minus eun bits and pieces that 19 we've got, but we've got to get those bits and pieces and get l
. 20 it in to CRESS.
21 What I am really targeting for is I would like it 22 as complete as possible and then turn it over to our editor, 23 say here it is.
24 MR. MILHOLLIN: We have an editor?
. A 3 neconm, inc.
l 25 MR. QUAY: We have an editor. I f i i
i i
l
100
[
j mto 5 )
( \
I MR. MILHOLLIN: Who is ready to go to work when?
2 MR. QUAY: The end of next week and the first part l
3 of the following week. She is unavailable the week of the !
4 12th of November. I think we have to keep that in mind.
5 I. asked her and she does not want to see this thing 1
6 too much before what we're doing here. In other words, we- I
- 7 could have given it to her some time ago, but she just doesn't
. i 8 -- she prefers not to work that way, because she really can't l l
9 . sink her teeth into something if we're scrambling back and 10 forth, l
II MR. MILHOLLIN: Okay. Well, next week I assume 12 that John and Bill's materials will be finished, right?
13 MR. LOVELACE: Yes.
Id MR. MILHOLLIN: What other materials do we have 15 outstanding?
16 A few d.t.cfts, small portions that you MR. QUAY:
I7 need to supply, a few that Steve has got.
- la MR. MILHOLLIN
- Steve, when do you think you could I'
crank out the rest of your thing?
20 MR. OSTRACH: The stuff that goes in chapter 3 or 1
21 the material for chapter 37 22 Both, summaries of the interviews with MR. QUAY:
23 the Commissioners, with the appeal' panel. I guess the appeal l 24 You -- at least what panel is a combination of the three.
! h e n o or w s inc. ]
25 is indicated.
f l
1 I
l
_ ... . . _ . _._.___..__.,___._._.__.._._.__._.._._m _ . . _ _ _ _ _.
101 mta 6
' I MR. FRYE: Right. !
O 2 MR. OSTRACH: I can d o the two summaries rather 3 quickly. .Getting the material from chapter 3 will be more 4 difficult. I'm working on it right now.
5 MR. QUAY:- All you've got is 3.7.
6 MR. MILHOLLIN: So you have 3.7 to do, Steve. '
. 7 MR. OSTRACH: As I said,.3.7 is fairly well along, 8 but it might be a problem. IN other words, unlike the 9 summaries of the interviews, which I don't think anybody is 10 going to have a look at. We'll just put those right in and U have an editor correct my spelling. I think people may want 12 to read 3.7.
() 13 MR. MILHOLLIN: Is there ,anything else outstanding Id 'from you, Steve?
15 Yes, the discussion of the Commission's MR. OSTRACH:
16 TMI-related changes in the rules, which I'm going to hold 17 off until the very last minute.
18 MR. MILHOLLIN: Yes.
MR. OSTRACH: And on some minor touch-up notes
- 20 For example, I believe at one time I was that I have.
l 2I supposed to work on a grandfathering section.
22 MR. MILHOLLIN: We've been putting that off.
t
'23 MR. OSTRACH: We have nothing for me to write yet, 4
so I don't quite know what to do. That obviously has to s manm. ine.
be done after we have some recommendation.
l I
I h:
~ .
l 102 l l
mts 7 t MR. QUAY: Is that a chapter 3 writeup or where 1
2 would that particular one go? ,
3 MR. OSTRACH: Probably at the end -- if the 4 recommendations go in chapter 4, it would probably be part 5 of the recommendations. I was specifically supposed to work l* 6 on that. l 1
I Oh, one other small thing. Someplace we're going 1 7
- [
1 2
8 to have to insert a footnote that will say: Footnote. None j i
i 9 of our discussion has been focused at and none of our recom-10 mendations affect the immediate effectiveness of initial i
4 11 antitrust decisions. I have mentioned this many months ago 12 and someone from the ntitrust and Indemnity Section and
{} 13 called me up another couple of months later and said, you're
)
14 not planning on doing anything about antitrust decisions.
15 MR. FRYE: The same thing will be true of operating 16 licenses.
17 MR. OSIRACH: Except we've already taken care of 18 saying we're not talking about cperating licenses. We haven't 19 said that about antitrust decisions. .I want to make sure ' 1 l
. 20 somebody other than me is aware of this, so if I forget it l
21 again somebody will think to put it in.
22 As I said, that's just a sentence that has to go 23 someplace.
24 MR. QUAY: I guess what I'm looking for to some el Mosw.rters, Inc.
25 extent, Gary, is what are we programming down the road for I
i l
1
103 mts 8' ,
I this thing as far as getting something into final form by the i
2 and of the month. Maybe -- let's see. Very -- a draft form, 3 at least something everybody's pretty much agreed on.
L 4 MR. MILHOLLIN: I'm assuming that after agreeing on
! '5 our recommendations, or at least agreeing on the options 6 which are most fruitful for discussion, that I can somehow,
. 7 from a small group, put together a discussion of those, get 8 them to you for addition.to what we already have.
9 MR. QUAY: Section 4, right?
10 MR. MILROLIIN: Then that will go into a third 11 draft. And the third draft would also pick up all the 12 outstanding items that we have -- the cleanup matters which
() 13 we just discussed. I throw that out for discussion. Does 14 that seem to be an agreeable course?
15 MR. FRYE: I guess I'm not sure what our timetable 16 is. We will have a third draft and I assume -- is this the 17 final draft? Everybody make their final comments off the 18 third draft, and then after that it will go to final?
19 MR. MILHOLLIN: I hadn't thought of it that w'ay, j 20 but I guess yes.
21 MR. QUAY: Okay. What's your target?
22 MR. MILHOLLIN: I'm assuming that we have now to 23 add to the substantive -- our addition now would be what we 24 think are most fruitfully pursued, why we think they are
. he moor =ri, inc.
l 25 fruitful, what the advantages and disadvantages are, and the l
104 i mts 9 l l
l j 1 analysis of findings which we will draw up based on the data 2 we have, put that all into the report, run it through CRESS 3 again and come up with a third draft.
4 MR. FRYE: A third draft will, in essence, be a l
l 5 draft of the complete report with nothing missing?
l .
6 MR. MILHOLLIN: That's right. Then we can all sit l l
l 7 down and go through it for accuracy. And the fourth draft l
l 8 would then be the report.
9 MR. FRYE: When will the third draft be available? j
- i 10 MR. MILHOLLIN: That depends on when we make our 11 decisions and when I can get the rest of it done, when we can 12 get the rest of it done.
.( ) 13 MR. FRYE: I think we ought to have a week for 14 everyone to go over the third draft.
15 MR. MILHOLLIN: .I agree.
16 MR. FRYE: Perhaps followed by a meeting if anybody 17 has any substantive problems.
IS MR. MILHOLLIN: Agreed. I s uspect there will be, 19 judging from history, there will be a number of substantive 20 revisions that will have to be made in the third draft, which 21 we would want to make. So I assume we will have a meeting 22 to do that.
23 MR. QUAY: That's where I'm getting to the question t
l 24 of apparently we go out of existence November 1st, right?
w n.porwi inc.
25 MR. MILHOLLIN: Well, it seems to me that by e 4 m a- - -
. _ . _ . _ . _ _ _ _ _ _ . . . _ _ - . . _ . _ _ _ . . . _ . . _ _ . _ _ . - .2 i
. 105 mto 10~
I November 1st we should be able to -- perhaps I am wrong about
()
1 2 that. If we were to have a week to go over the final version 3 of the report, that implies that the final version will be l 4 ready a week from now, doesn't it? Is that right?
l l ~5 MR. LOVELACE: Correct. .
6 MR. FRYE: The 26th.
. .7 MR. MILHOLLIN: And that's probably impossible, isn't I
8 it?
l 9 MR. FRYE: It would seem so. We have to get the
- 10 rest of this --
l II MR. MILHOLLIN: So it would seem that we need a l 12 couple of weeks in order to do all the work which remains, l
l
(]) 13 and then another week to go over the final draft, the third l 14 draft. What do you think?
15 MR. KARMAN: It would seem that we would have l 16 great difficulty doing it in any less time than that.
l-17 MR. MILHOLLIN: Okay. Shall we agree on that? We
! 18 will shoot for the third draft, which will be the complete 19 report, two weeks from now, and we will get everybody a copy l
. 20 of it -- well, two weeks from now everybody would have a copy 21 of that report, and then we'll take another week to go over 22 it.
23 So we would shoot for two weeks from today for a 24 third draft, which we would then take a week to g'o over.
ei n o orwes,Inc. j 25 MR. Q UAY : What is that? November 2nd. '
l e -- - - - .
' 106 mto 11 1 MR. CHO: I think we ought to have a meeting two G
5l .2 weeks from now. So if you can have the third draf t finished 3 at least a couple of days before that, because I suspect we 4 will be having some substantive difficulties in it.
5 MR. QUAY: What that means, though, John, is if we 6 have a meeting and some substantive issues, it has to be held 7 the 1st or before the 1st, and then you're back --
8 MR. CHO: That's why I'm suggesting such a time 9 frame that would accomplish that.
10 MR. QUAY: Then you're backing the draft up at least 11 two days from that. So we're talking in essence one week from 12 today.
13 MR. CHO: To get the additional materials done.
14 MR. QUAY: To get the third draft out.
15 MR. KARMAN: Why one week from today? You mean if 16 they're going to have it for a week?
17 MR. QUAY: If they're going to have it for two days.
18 MR. CHO: Let me make myself clear. I agree that j 19 before we reach our final conclusion, make our final approval ,
, 20 of the report, that we ought to have a week to study a draft, 21 a complete comprehensive draft. But I am suggesting before l
22 we reach that point it might be worthwhile to have another 23 meeting to'go over some of the things that probably will arise 24 when we first look at all the materials as they are put ga n.conm. inc.
W 25 ~ together and try to get resolution of those main points. I 4
l l
107 i .mtol2 1 thinkitwillbemoreebpedientintheend.
l 2 MR. KARMAN: What you're saying, John, in effect is 3
you're hoping to get that third draft a couple of days before 4
Friday the 2nd, or whatever the date that Friday is.
5 MR. CHO: Right.
6 MR. KARMAN: If we can get that draft Wednesday, say ,
7 we'd have two good days to look at it, so we could meet on 8
Friday the 2nd, it would be a productive meeting.
9 MR. QUAY: That's a week and a half. I'm questioning 10 whether we can meet that. Maybe Steve can address that.
II MR. OSTRACH: I will look into the question and if 12 it's at all -- if the group's feeling is that meetings after 13 November the 1st are very important, I will try and take 14 whatever action is necessary, inc'.uding contacting, if this 15 is necessary, contacting GSA for an extension of our charter 16
.or contact the Chairman to request initiation of such a i
17 request.
18 I would prefer not to do that, but if it turns out
? .
19 that that is necessary -- and I'm not saying it will be -- I'm l'. 20 prepared -- count on me, in other words.
l 21 MR. KARMAN: The charter is good as long as you 22 don't meet, is that it? It doesn't matter when the report 23 comes out?,
i
! 2d MR. OSTRACH: The report can come out whenever it si meno,ters anc.
.wants to. ,
l
108
! mto 13 l l
1 MR. KARMAN: It's just a question of meeting as a i
() 2 committee beyond --
3 MR. OSTRACH: I'm not saying it's improper for us to 4 meet after November 1st. I'm just saying I'll look into it 5 and see if I can find a way to do it.
I 6 MR. QUAY: I guess that's the whole key, if we can 7 do that.
l 8 MR. OSTRACH: I think we should go ahead and assume 9 that it will be very unpleasant and difficult, but we probably 10 can figure out some way. That seems like a reasonable 1
11 operating assumption. It might get either more easy or more 12 difficult.
( 13 MR. KARMAN: Whoever heard of an advisory committee 14 that came out with anything on time?
15 MR. LOVELACE: Even the Kemeny Commission report's c-7 16 going to be late, I understand.
17 18 19
, 20 21 22 23 l
1
! 24 Ag. n nm. ne.
I I
~706.00.1 109 l BW gsh 1 MR. MILHOLLIN. The items to be draf ted will be O 2 done next week. is enat eereeeeie. Steve 2 3 MR. OSTRACH: Yes.
4 MR. MILHOLLIN: Agreeable to everybody.
5 MR. OSTRACH: with the exception of the TMI and the o grandf a ther. ;
I
. l 7 MR. QUAY: That I understand, but there are two 8 other things that seems to somehow need to get resolution if 9 we're going to complete this draf t. That's the option 10 section or the analysis section of those individual cases, ,
.1I their location, whe ther they're in the report or out of the 12 report itself , and the section that we're going to talk 13 about, OLs. We were going to devote some sort cf section to i l
14 operating licenses.
l O is aa at'aout" "nv eoa's we au t =u pead eno e two 16 things for the time being because we can always drop 1
17 material out of the report. We can drop material out of the l l 16 discussion of those write-ups, can't we?
i 19 MR. QUAY: Y.ou're saying administrative - you're 20 probably right. Administrative 1y, even af ter we go out of 21 existence, that's something easy to do, to take that stuff j 22 out and pu t it in the a ppendix. But the actual write-up for 23 that might not be that easy, if we want to change -
24 MR. MILHOLLIN: What I'm suggesting is that we might 25 not want to have an analysis section af ter the write-ups af ter l-i l
l
- O
'706.08.2 110 BW gsh I the case s. Just drop the analysis section.
f I'_d s/ 2 MR. QUAY: Okay.
3 MR. MILHOLLIN: Does that sound t.a Draconian?
4 MR. CHO: That's the kind of thing I was . thinking 5 about. We could readily decide, say if we have a meeting 6 two Fridays f rom now, af ter we see the total picture.
7 MR. MILHOLLIN: Yes.
. 8 MR. CHO: That's why I thought it would be very 9 -
desirable if we could have another meeting.
10 MR. MILHOLLIN: Because I assume we'll cover
.11 everything in those analyses sections somewhere in the report 12 anyway, tha t there wouldn't be anything in those analyses 13 sections now that won't be covered in some part of our 14 wri te-u p, presumably be covered in analysis of the options.
l
() 'l 5 So I guess I see that so f ar as . surplusage, which we lo could just drop out later on.
1 17 MR. QUAY: Okay.
l 16 MR. OSTRACH: I would like to think further about l 19 at least dropping the analysis section of Seabrook. This l 20 might be just pride of authorship, but I think Seabrook is
. 21 a rather special case. And since the conclusions in the 22 analysis section were that the immediate eff ectiveness rule 23 didn't have very much to do with the case at all, I would 24 like to be sure that that point is made explicitly some place 25 on the re port.
1 O
i 1-l l
[
706.0d.3 1.11 2 MR. VA Th t's a good point. The other's prooably I 3 equally well, too.
l 4 MR. MILHOLLIN: It could be that we'll just have ,
5 to do it on an ad hoc basis, case by case. In some cases, 6 the analysis section wouldn't be worthy of keeping and others 7 it would.
. 6 MR. OSTRACH: Perhaps one analysis section that comes v- at the and of all the write-ups.
10 MR. MILHOLLIN: Yes, in which some of them could be 11 treated more extensively than others.
12 MR. OSTRACH: Yes.
13 MR. MILHOLLIN: Okay. Well, before we broke for 14 lu nch, we discussed Option 2 through to the end, and we had
() 15 just begun to compare it to other options that we had 16 identified as still viable.
17 Would anyone like to break the silence on comparison of le options?
19 Jo hn?
20 MR. FRYE We're not discussing individual options
. 21 any more?
22 MR. MILHOLLIN: Oh, sure we can, yes.
23 MR. QUAY: Why don't we go on to Option 6, 6-9 24 MR. MILHOLLIN: We could take them up one at a 25 time if that would be better. Do you want to take them up i
I -
l
'706.08.4 .112 i BW gsh I one at a time or just compare?
2 MR. QUAY: Didn't we do part of Option 8 before at 3' the last meeting, accelerated treatment?
4 MR. SEGE: Perhaps it would avoid confusion to take ,
5 them up one at a time, briefly, and thsn get back to 6 comparative discussions and efforts to focus on even f ewer 7 than we have focused so f ar.
. 8 MR. MILHOLLIN: In Option 8, I think there's not 9 much diff erence between Option 8 and Option 9, except tha t 10 Option 8 uses the existing ca tegories of LWA-1 and LWA-2.
.11 The second difference, a second diff erence is that a 12 decision on the merits would be necessary under Option 8 by 13 the appeal board before construction could begin. There would 14 be no change under Option 8 for the appeal board to decide
() 15 that eff ectiveness should be granted unless a merit decision 10 were made on the LWA issues.
17 I guess I'm saying the same thing twice.
16 Under Option 9 and Option 6, if you split up the process 1Y into decisions on ef f ec tivene ss and decisions on merits, it's 20 possible under Option 9, for example, the licensing board --
. 21 the appeal board could decide that the licensing board was i
22 wrong about -- wrong in its decision to deny eff ectiveness 23 without deciding the merits of the construction-related 24 i ssue s.
25 That's the princi pal dif f erence, I think, between Option 8
f706.08.5 113 BW gsh I and Option 9.
f.
A 2 MR. FRYE Yes. Option 8 would get rid of the 3 immediate eff ectiveness rule as it pertains to LWAs.
4 MR. MILHOLLIN: That's right.
5 MR. FRYEs option 9 coupled with 6 really alters 6 the stay standards. '
7 MR. MILHOLLIN: Y e s, i t doe s.
. 8 MR. FRYE3 And maybe that's a good focus.
Y MR. LOVELACE: Does the immediate effectiveness 10 rule a pply to LWAs?
.11 MR. FRYE For purposes of discussion, I think that 4
12 we can assume it coes. The staff issues them very promptly 13 af ter the LWA ld#E - .
14 MR. MILHOLLIN: Under option 8, it would not be
() 15 possible for -- well, the appeal board to allow eff ectiveness 16 and then later on reverse on the merits.
17 So you wouldn't have the possibility of having construction 16 which could later be disa pproved af ter a review on the 19 nerits.
20 I take it that any time you are going to attack a problem
' . 21 through stays, you have the possibility that a stay would be 22 denied and then a reversal could occur.
l 23 MR. FRYE Yes, theoretically.
l, 24 MR. MILHOLLIN: Theoretically, that's a possibilityi 25 whereas, with Option 8, that theoretical possibility does not O) q f
I
' '706.06.o l14 i -BW gsh I e xi s t .
2 MR. FRYE: That's right because you wouldn't permit 3 construction. -
4- MR. MILHOLLIN: Because you wouldn't permit 5 construction until you had a merit's decision on the LWA 6 i ssue s.
7 So that's a principal diff erence between those two options.
. 8 MR. KNIEL: One of the drawbacks to Option 8 is that 9 it's not clear that, as you pointed out, someone who wrote 10 this pointed out, the perception -- the public will perceive Il tha t the issues concerning construction have been adjudicated 12 to finality within the agency before construction was 13 permi tted.
14 It's not clear that they proceeded that way because I
() 15 think Option 8 certainly has a lot of, I think, a ttractive i lo f eatures about it. I t's a proved way of doing things.
17- And as f ar as the staff and the board are concerned, it's just to a question about the a ppellate proce ss, whether --
IV That part hasn't been implemented to date.
20 I think it's an attractive one to consider.
- 21 MR. MILHOLLIN: It also avoids the disadvantage of 22 putting the appeal board on the critical path as to all 23 issues.
24 MR. NEAL: Right.
25 MR. MILHOLLIN: The appeal board is only on the s
e -- \
I l'706.08.7 115 l l BW geh I critical path with respect to the LWA issues and not with ,
2 respect to the saf e ty i ssue s.
3 MR. MILHOLLIN: Is that right? Yes.
4 MR. QUAY: But I think you're right. It suffers 5 severely from the public perception because you could still 6 be in the hearing and they are out there digging a hole.
7 MR. OSTRACH: But Ted, the public perception would 6 be accurate. Public perception would be -- well, they may 9 be fidoling with the details, but they've gone ahead and 10 made the final decision that a plant will be built here.
- .l l That would be accurate s they would have.
12 MR. QUAY: But do they look at it that way if there's 13 a hearing still g'oing on on the construction permit?
14 MR. KARMAN: I think you're both agreeing with each O iS e t he r .
16 MR. OSTRACH: My point is the public perception 17 would be the important decision has been made, and I'm 16 agreeing. But the thing is the public would be right.
19 Presently, they have that perception and they're wrong.
20 If that's a perception -- it's unf ortunate that i t's
. 21 irrelevant, but at least we would get public perception in ,
22 concert with reality.
23 The commission would, in f act, have finally a pproved that >
l 24 a nuclear plant of the general type proposed can be built on
! 25 t ha t site .
n
(>
'706.0o.6 .116 BW gsh i MR. MILHOLLIN: It would be a final agency decision.
( 2 At that poin t , the public would be right in believing that 3 it couldn't be stopped.
4 MR. OSTRACH: And that all that was lef t was the 5 details.
6 MR. QUAY: I'm wondering if the public would view it 7 as a final agency decision when the hearing is still being l
- , 6 conducted on safety issues?
l V MR. KARMAN: Sure they would and they'd say that 10 the hearing is a sham.
.11 MR. KNIEL: They might or they might not. They 12 certainly could have that opportunity. But I think if it was 13 made clear that the issues regarding whether there's to be 14 a plant have been fully adjudicated --
O(_/ 15 I don't think you could say for certain how they'd view to it. I think it's an opportunity f or them to view it the 17 correct way, or what- we would hope would be the correct way.
16 MR. QUAY: I think one of the public responses that 19 we got to the Federal Register notices indicated that. A, 20 they are out there digging a hole and the hearing is still
. 21 going on, even though potentially, they had gotten either 22 an exemption or, I presume, this type plan, it was an LWA.
~
23 And, you know, I think everyoody had agreed that this was 24 one of the major drawbacks of the present rule -- it's the 25 public perception.
I
l '7 06.08.9 117 l BW gsh i MR. OSTRACH: My point is that the public perception
() 2 would be accurate now. The drawback to the public perception
, 3 tha t there's a hearing going on while work is continuing is 4 that the public says, uh huh, you pretend that you haven't 5 decided whether or not the plant' can be built here in this 6 hearing, and yet, the decision has been made.
7 Well, they might say that now but we wouldn't be pretending 6 anything. l l
l Y The hearing is about details about how the plant will be 10 built. We have, in fact, as you think, made a final agency
.11 cecision. Tne plant can be built here.
12 So there would be no -- I mean, the public may not like 13 that, but there wouldn't be any problem with a mistake in 14 public perception.
() 15 liR. SEGE: I gue ss another way to put it would be 16 t ha t the public would not perceive this agency as being 17 disingenuous.
16 MR. OSTRACH: Right.
l IV MR. MILHOLLIN: Ted, you're suggesting perhaps the i 20 public is going to think the safety decisions also are
. 21 prejudiced by ongoing construction.
22 ?.iR . Q U A Y : Sure.
23 MR. MILHOLLIN: And I think this option doesn't 24 say that safety cecisions are not influenced by ongoing i~
i 25 construction.
O
'706.06.10 118
- BW gsh 1 MR. QUAf Tha t's our ' a ssumption. I think we ought k 2 to point tha t ou t.
3 You know, Roisman would clearly state that he doesn't 4 agree with that. I think several of the intervenors would 5 clearly state that they don't agree with that.
6 MR. SEGE8 Also, in some sense, we would be modifying 7 the apparent intent of the law, which, according to which a
. e construction permit would indicate that NRC believes that Y the plant can be designed and build as though it would be 10 safe at that site.
.I I And now we are saying something like that on the basis of 12 LWA issue _ alone without waiting for the rest of the 13 construction permit issues to be settled.
14 MR. MILHOLLIN: Yes.
O i5 MR. SEoE So im that sense, there is a 16 reinterpraation of the meaning of construction permit by 17 dividing the issues into tnose that are go, no-go, and those Io that are cesigned particulars.
IV MR. OSTRACH: I think that we have already done that 20 by se tting up the category of LWAs. If anything, we are
. 21 slowing the process down. We are presently - an LWA 22 cecision is immediately eff ective. Now they at least have to
~
23 wait a little bit longer. Under this option, they'd have to 24 wait a little bit longer.
25 But I don't think that we have further chipped away at the
. O l
1 7706.06.11 .119 BW gsh I conce pt of the CP. If anything, we went slightly in the c's
-)
2 other direction of putting a little bit of character in it.
l 3 Not directly, but just a CP will presumably be a li ttle i 4 closer to issuance before the bulldozers move in.
5 And apparently, we have -- I don't know if anybody has 6 ever sued on the theory of LWAs, but it certainly hasn't been l i G 7 shown to be illegal to allow people to begin construction on
. 6 an LWA.
9 MR. MILHOLLIN: Well, if the assumption is the NEPA 10 requirements are satisfied by the type of hearing which
.11 occurs before the LWA is gran ted --
12 Also, this option a ssumes that nuclear plants can be made 13 safe in the sense that you're going t- allow construction 14 after you decide site suitability and NEPA issues. Then g
(,) 15 you're going to assume, I gue ss, at that point that that 10 construction would not be wasted since you are confident that 17 you can make the plan t safe through whatever design changes lo are necessary.
IV If you can't make that a ssumption, then maybe it's not 20 realistic to split the issues into two parts.
. 21 MR. OSTRACH: This option doesn't make that 22 a ssum ption. This option says if a licensing board can find 23 t ha t to be true, it can go ahead and do that. Presumably, 24 somebooy has the right to introduce in the very first LWA l
25 hearing under tnis modified procedure, that this site can ever
/^\
E. ,)
- . .--. ... .. ~ ._..~_.. _ . .- - .= - -. . .. . . . _ .. _ - _ . _ _ - . .
!1706.06.12 120 gsh I be made suitable for a plant of this type because --
l Bh v 2 MR. MILHOLLIN: No, Steve. I think you're 3 misinterpreting what I said. To allow construction without 4 deciding the non-LWA issues assumes that none of those issues 5 would be sufficient to defeat the plan t.
6 MR. OSTRACH: Right. That's what we're defining, 7 then. By definition, we're defining non-LWA issues as
. 6 issues which cannot be sufficient to defect the idea of 9 building the plant.
10 Presumably, you had your opportunity to argue in the LWA 11 hearing that there exist unresolved saf ety problems common 12 to this entire class of plant that are incapable of 13 solu tion.
14 The applicant has to show at the LWA hearing that there
() 15 is no disqualifying saf ety problem of this character of i 16 plant.
i 17 MR. MILHOLLIN: Oh, I see. Is that right? !
16 MR. OSTRACH: Yes. !
19 MR. QUAY: Do we do that? Carl , i s t ha t the way 20 it's done now? Is it just mon or less site suitability?
. El MR. KWIEL: I think we do that, but I would have 22 to --
23 MR. QUAY: vo wnat Steve says or site suitability?
24 MR. CHO Both, I think.
I 25 MR. KNIEL: Part of site suitability is is the site i
i i
4 i
C) . ;
l
l I'706.08.13 121 i
BW- gsh- 1 safe for this type of plant?
() 2 I think if you had a case showing that re- ;ype of plant i 3' can't be made saf e, I would think that it would be arguable 4 that it's not suitable.
5 I think Steve is right, but I can't say for certain. I 6 haven't been all that involved in the process. But we can
! 7 do some research to see. .
6 MR. MILHOLLIN: The generic argument that this type I y of plant can never be made safe anywhere would be admissibl~e 10 in the LWA phase of the case.
11 MR. NIEL: I think it would. -
l 12 MR. MILHOLLIN: That's your point, isn't J t, Steve?
13 MR. OSTRACH: Yes.
n4 MR. MILHOLLIN: I did not understand that to be
! () 15 true. I'm glad you pointed it out.
lo MR. FRYE But that still is a f airly limited 17 inqui ry , is it not?
16 MR. OS1HACH: On, definitely. But it does add to Iv Gary's concern. ,
I 20 MR. KARMAN When you say this kind of a plant,
. 21 what oo you mean by "this kind of a plant"?
22 MR. OSTRACH: Whatever kind to a plant i s pro pos ed , l 23 a boiling water reactor or a PWR or D&W PWR.
1 24 MR. MILHOLLIN: An argument that you can never make 25 thir plant saf e anywhere would be relevant in the LWA phase l
($)
['.
l l '706.08.14 ' 122 h BW gsh: I of the proceeding since the site, presuraably, would not be
'2 suitable if it bsd that type of plant on it.
! 3 MR. KARMAN: I've never run into anything like that.
l 4 of course TMI has raised all of these issues.
5 MR. MILHOLLIN: Yes. Tha t's why I say -- tha t's why 6 I brought it up. In the light of TMI, maybe there is
) 7 something, an assumption we're making that we can't make
. 6 any more.
l Y -
But apparently, we don't make that assumption. l
! 10 MR. OSTRACH: No.
MR. FRYE f' .11 I guess the point that I was trying to . !
12 bring up is suppose someone comes in with a position -- this
( l l
- l. 13 ice condensor containment which you propose can't be made I
14 safe at any site.
l () 15 MR. OSTRACH: Right. That would be heard.
16 MR. FRYE I'm not sure. Would that call -- do you i
17 think that that woulu go to the same . site, general site
'16 suitabili ty?
19 MR. KNIEL: It's the same sort of question. I 20 think it would, yes.
- 21 MR. QUAY: I don't know if that's site sui tability 22 or not. Just say that you can't build an ice condensor 4
23 con tainmen t.
24 MR. FHYE Or ice condensors -- say it doesn't
! 25 really -- I don't know.
I
!. O
- l
,. - -- . - . . . - = . . - - - . . - . _- . .--.
'706.03.15 123 BW gsh- l MR. SEGE: Let me ask a question related to this
( 2 ice concensor thing.
3 Suppose that an ice condensor containment plant is 4 proposed for site X and site X is then approved through the 5 LWA stage. And then later on, as a design change, the board 6 determines that the ice condensor concept cannot be use, 7 cannot be used there or just cannot be used at all.
& But it would be perf ectly all right just to redesign the Y containment. At which point the utility determines that 10 that's going to make the plant so expensive, that they would
.11 want to build a cold firea plant, for which that particular 12 site would not be suitable. It would put it much closer to 13 the city.
14 So in that sense, a design change of that magnitude could
() 15 result in the po.ssibility of a site being abandoned af ter it 16 had been worked on.
17 MR. FRYE: Tha t's why I raised it.
4f$[ .
Io MR. KrilEL: It was mentioned earlier that this 19 assumes that all the construction issues relate to the 20 NEPA at the si te, and they don't -- they can't be potentially
. 21 impactea by a revision of the saf ety design, which is not 22 100 percent true.
l ,
l 23 MR. MILHOLLIN: Can you think of an example -- can l
24 you think of an issue which clearly would not be comprehended 25 by the LWA category?
O .
l m .
m .- --
'706 09 01 124 ,
^
f mgetAM i MR. CHO I guess the easiest example is the one he just used where the design modification requires such
{} 2 3 cost that it recalances --
4 MR. MILHOLLIN: Wha t about operator training, f or 5 e xam ple . Somebody comes in and says there is no way you can 6 change -- no way you can train operators adequately to make 7 the plant saf e, either here or anywheres else, so therefore 6 this site is not suitable because --
v -
MR. OSTRACH: Even better than operator training, 10 how about management capability? This utility has such a
~
11 track record of incompetence and bad management that they 12 can't possibly be trusted to build a nuclear power plant.
13 The operator training, af ter all, you can always hire - you 14 can steal them f rom Coned or something.
!5 Pay more?
(} 16 MR. QUAY MR. OSTRACH: Pay more. But if the management's 17 bad, you can't get a new n.anager. What about that as an lo i ssue ?
IV MR. MILHOLLIN: Is that an LWA-type issue or not?
20 MR. FHYE No, it's not.
21 MR. OSTRACH: Perhaps the solution for us, since.
22 we're unsure whether some of the issues are covered in the
- 23 LWA is to indicate that a s we const+- this Option 8 LWA,
. 24 tnis LWA or LWA-like hearing, would include the possibility 25 of raising issues such that they can disqualify the entire l
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' '706 Oy 02 125 mgcMM i utility -- not precluding them f rom being raised later, 2 beca use if we do that, just precluding their being raised
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3 later in an effort to disqualify the entire thing -- f or 4 example, management capability.
~
5 If you want to argue that the management is so l
6 incapable that the plant can never be built, you've got to 7 raise it at the time of the LWA. l l
e MR. QUAY: Financial qualification, is that one 9 that's adjudicated for an LWA? l 10 MR. OSTRACH: Yes. It's part of environmental 11 review.
12 MR. QJAY: Financial qualification is part of I)3 environmental review?
14 MR. OSTRACH: I'm sorry. I t's in SER Part 50.
MR. MILHOLLIN: Maybe we have a de facto breakdown
{} 15 16 between the type of documents the staff files. Maybe we've 17 decioec the question oy where you put the information.
lo MR. KARMAii n Well, to the best of my recollection, IV and of course I would have liked to nave had -- to have gone l
20 through a f ew of the se LWAs. What you have is your total 21 environmental review, and you have af ter that basically what 22 we call your dologie s" -- hydrology, meteorology, geology 23 witn respect to the site. I i
24 MR. MILHOLLIN: Seismology?
1 i 25 MR. KARMAN: Geology, seismology, with re spec t to l
\
U
'706 09 03 126 mgcMM i the site. I don't think we've been going into any of these other tangential matters which might aff ect the plant. I l
(} 2 3 think we may be going a little too far afield.
4 MR. QUAY: I agree with you. The only reason I --
5 sorry I started this discussion really, because the only 6 thing I was trying to say is I still believe that the public ;
7 might perceive this type of option -- they might have 6 difficulty with it, just for precisely these types of l
v- reasons. I don't think they are going to be usually -- I i l
10 don't know of any case where we've had these types of j 11 difficulties.
12 MR. KARMAN We haven't, not to my knowledge.
13 MR. QUAY: But I'm saying that the way the public 1 14 would look at it --
MR. MILHOLLIN: You mean classification
{} 15 16 difficulties? Is that what you're talking about? ;
17 MR. OSTRACH: No, what you're saying is the lo situation where a successf ul contention is raised in a 19 safety area that the plant can't be built.
20 MR. QUAY: Yes.
21 MR. OSTRACH: And I'm saying, are you saying that 22 can't h? open, or at least that the possibility of it p
- 23 happdnih.9 is comething that will have to be taken care of in 24 this LWA hearing? Ana then we've been hearing, well maybe 25 it's po ssible , bu t nobody's ever tried it. So I suggest
- - , y -- -
. . . . - - . - . . - . . . . - - . . - ~ . . . . . -.._ ~. _ . - . . . . - . . - . . _ . _ . - . . ,
'706 09 04 127 mgcMM i that what we do is we say that if our belief that the v- 2 opportunity be put into the LWA hearing, since you are 3 right. The public will assume. that you can't absolutely 4 def ea t a plant on saf ety grounds once construction starts.
5 And I think that's correc t. That's our intent, and 6 therefore if they're ever to have a chance of def eating a 7 plant on saf ety grounds, we better make it clear that their e opportunities are in the LWA stage.
Y -
MR. QUAY: But no matter how you operate, Steve, 10 you're never going to be able to reach out and say, "I 11 didn't know you were going to build a plant this way "
-12 MR. OVAft Realistically, I don't think that's 13 ever going to happen 14 MR. SdGE: Steve, what you said goes counter to
() 15 the spirit of the Atomic Energy Act, which accords safety 16 determination such overwhelming significance that the -
17 Cosaission coulu tell a utility af ter it has built the plant to t ha t it can't operate i t.
19 MR. OVAY: We can tell them that. We can tell 20 them that now.
21 MR. OSTRACH: We can tell them that.
- 22. MR. SEGE: Yes, tha t is right. So to say at the 23 LWA stsge we can determine that there won't be any i
24 saf ety -- that saf ety considerations will not defeat 25 location of that plan t, the location, operation of that
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'706 09 05 128 mgcMM i plant in tha t place. Tha t goes counter to the entire 2 concept of a construction permit, that the utility remains !
3 at risk until it has the operating license.
4 MR. OSTRACH: We're talking about our obligations 5 to the National Environmental Policy Act. Tha.t's all I'm 6 saying is foreclosed. The f act that in the safety hearing 7 they might conclude that nonetheless the plant can't be j 1
- 8 built, that's fine. The same thing with the operating i l
9 license.
'O I'm just trying to justify or remove one possible 11 way of def ea ting the a pplication. ]
12 MR. MILHOLLIN: Theoretically, any saf ety issue 13 could defeat the plant if there weren't a modification 14 po ssible . Bu t the policy is that if it's not possible to
( 15 modif y it so it's saf e, we don't let it operate.
le MR. OSTRACH: Maybe the answer is the LWA cecision l
17 would say, in carrying out its responsibilities under NEPA, lo the Commission nas determined finally that this site is safe 19 or this site is suitable for a nucisar power plant to begin 20 to be constructec here. We recognize in the upcoming saf ety
- 21 hearings, we might turn i t down based cn the Atomic Energy l
22 Act, but we are finally concluding our NEPA review of I 23 building this plant in this place.
24 MR. SEGE: I can't see how determinations of that 25 sort can be sufficient for authorizing construction to l
,/~T l
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l
!706 09 06 129 m cMM i begin. Safe ty considerations cannot be that clearly 2 separated f rom environmen tal considerations for one thing, 3 and for another, the issue of construction during 4 adjudication is troublesome because of the f act of 5 construction at a time of significant doubt in the o adjudicatory process as .to whether that plant should, in 7 fact, be authorized to be built in that place, and whether
. 6 the doubt arises from environmental concerns or f. rom saf ety v concerns is entirely immaterial to the issue that we are 10 addre ssing here.
11 MR. KNIEL: Well, the LWA hearing just doesn't l
12 address environmental terms. I t addre sses site suitability, ;
13 and as Myron said, the main f actors in site suitability are 14 the " ologies", the natural characteristics of the site.
() They are ' the natural characteristics of the site and how
\_/ 15 16 those natural characteristics impact on the design of - the 17 plant. And those things are decided as part of the LWA lo hearing.
19 In otner words, there's a strong attempt being-20 made to include in the saf ety part of the LWA hearing those 21 things that are -- those f actors that are important to the 22 site that can have a significant impact on the design of the 23 plant.
. 24 Now tnat's not saying that you can' t find tha t l 25 it's impossible to think of some hypothetical ense in which l
O -
t l
- '706 09 07 130
! r cMM i the subsequent saf ety hearing might impact the design of the l 2 plant suf ficiently so tha t maybe it's not the greatest plan t 3 for that site. But it certainly a ttempts to address that 4 question, at least 99 percent of it or something like that. .)
5 MR. QUAY: I think recognizing that you can go l
. o forward.
7 MR. MILHOLLIN: I think so. We seem to be getting e off on a tangent.
9 MR. QUAY: I think we're probably all agreeing on j 10 that.
~
11 MR. MILHOLLIN: Yes. Anything oise on Option 8? ;
12 MR. OSTRACH: One question about Option 8. You 13 are authorizing only construction of that which is now
_ 14 permitted under an LWA-1 and LWA-2. Right?
k' 15 MR. MILHOLLIN: Presumably, yes.
lo MR. OSTRACH: If somehow the CP languishes, drags 17 on f or montns, even though they stop, they get their LWA-2, 16 the Appeal Board affirms on the merits, they build for a 19 year or however long -- if the CP is nbt finished, thef 20 stop?
21 MR. MILHOLLIN: Tha t's right.
22 MR. SELE: But wnere it isn't, the CP becomes 23 immeoiately ef f ec tive. Right?
. 24 MR. QUAY: Right, a ssuming the Cp is af ter the LWA 25 Appeal Board decision or final agency action.
l m
1 s
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'706 09 08 131
- mgcMf4 i MR. MILHOLLIN
- Yes.
() 2 MR. QUAf: If it's not, then they're concurrent.
l 3 MR. MILHOLLIN: But the applicant could protect 4 himself f rom stop-start construction by not beginning until 5 he thinks he's about ready to get the CP.
l 6 MR. OdAY: But the LWA always precedes the LWA 7 decision, at least always precedes any construction on its 6 site?
9 MR. MILHOLLIN: Yes. And if the applicant doesn't 10 ask f or an LWA, he could begin when the LWA portions of the 11 CP are processed by the Appeal Board.
12 MR. QUAY: Okay.
13 MR. SdGE: 'The soundness of this option hinges on 14 the LWA issues containing all the go, no-go issues.
() 15 MR. MILHOLLIN: I'm not sure that's -- it seems to lo me, George, that you have got a lot of go, no go issues 17 which are on the saf ety area which just relate to the plant, 16 and the LWA doesn't necessarily cover them all.
19 MR. SdGE: I meant no, no-go for a plant et tha t 20 site, not for a plant of a particular design for that site.
. 21 Md. MILHOLLIN: Rights.
22 MR. SdGE: Go, no-go, in terms of having a plant 23 and having it at tha t si te. It would depend on the LWA
~24 containing all those issur " .
25 MR. MILHOLLIN: That's right. It does.
(:) . !
i 1
I i
I j
'706 09 09- 132 m cdM i MR. KARMAN: May I interrupt for half a second? I 2 just took a look. Actually what happens is, when you 3 submit the site suitaoility report for the Licensing Board 4 in addition to the final environmental statement for the 5 LWA, it considers the reactor site environs including 6 whether there are nearby industrial, transportion, military 7 f acilities that could influence acceptabilityt physical
. 8 characteristics of the site including geology, seismology, v~ hydrology, and me teorology -- of course that was in one of 10 the cases -- nearest p3pulation center t highway routest a 11 military facility. This is the kind of stuff. It's not a 12 very extensive --
13 MR. KNIEL: It covers all the site related things, 14 but what it does not cover is some unexpected change in the n
(_) 15 plant' design. It assumes that the plant is going to be lo configured in terms of the general knowledgeable technology 17 of the titae. If that turns out to be incorrect, well then le you nay have a problem.
IV MR. MILHOLLIN: What about the disadvantages?
20 MR. CHO: Bef ore we go on, let me comment on Item 21 4 uncer Advantages. It says " issues included in LWA-1 and 2 22 already aefined and understood." And the whole discussion 23 here for the last half hour or hour indicate to me that it
, 24 is not well understood, although it may be cefined.
25 And I suspect t ha t if an option like this goes i
O i
l
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133 l706 09 10 rogMM i into ef f ect, because the LWA type of procedure will not U 2 become immediately eff ective, parties litigant will try to 3 raise more issues to bring it under that sphere and cause 4 the issues to become even less subject to understanding. ,
5 MR. MILHOLLIN: It's po ssible they would fight
. o over the categorics.
7 MR. CHO: Right.
8 MR. MILHOLLIN: Wha t would be the gain, though, in Y fighting over the categories? Who would profit f rom that?
10 MR. CHot Intervenors would. Well, a pplicants --
11 well the intervenors would gain because there would be no 12 immeaiate ef f ectivene ss.
13 MR. QUAY: They're delaying the plant. If they 14 delay the LWA hearing, they are delaying the onset of 15 construction f or the plant.
lo MR. FRYE8 They could also, I su ppose -- it would 17 be a substantial aeiaying argument because, you know, the lo staff ooviously has got to be working months before you get lv to the hearing, and if the intervenor is saying to the 20 staf f, "Stop considering Issue X in the SER and switch it 21 over to the FES, the sito suitability", I can envision that 22 it might disrupt w ha t tne staff is doing to some extent.
. 23 MR. MILHOLLIN: So if we change the categorieis i
- 24 which now exist, there might be a problem.
25 MR. CHO: And I suspect everything that is covered v
134
'706 09 11 rnc..tM 1 in an environmental impact statement is f air game for k.) 2 consideration in this so-called LWA proceeding.
MR. KARMAN: Oh, ye s. You've got your full 3
4 environmental heering.
5 MR. MILHOLLINr That's .the practice now.
a
. 6 MR. KARMAN: We do that now.
Except, though, i t doesn't have that 7 MR. CHO o added significance, so people may not raise questions, you 9' know, unless they f eel --
MR. KARMAN: That's not so. Actually, before you 10 11 get to the LWA, tne intervenors would have to have submitted 12 and raised all of their contentions by that time with respect to the whole plant. Then the LWA is just carved out 13 14 of it. See, the LWA many times, the reviews are going on, 7-15 the contentions are in, discoveries are met -- then during 16 the course as tne hearing progresses and the staff comes 17 through with its environmental statement and gets that out, lo the applicant can say, "Okay, now I'm going to ask for an j
IV LY:A1 let's ge t that part of the hearing done."
20 So by that time, all of the issuez that are part f
21 of the hearing are there already.
22 MR. MILHOLLIN: Contentions would already have l
- 23 been filed.
-l 24 MR CHO: I'm just suggesting that to a great l ,.
25 extent, if you pursue the --
O t
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,'.706'09 12 135 mncuM l' MR.~KARMAN We have to assume they will- pursue U 2 them to the, finite' degree.
3 MR. MILHOLLIN: Because they're holding up . the 4 plant now if they puruse them, because now the applicant 5 can't begin to build until the LWA is approved the Licensing
, 6 Board.
'7 MR. FRYE There's one other disadvantage here 8 that I'm not sure is listed. That is that it is not a S - selective approach. It's- an across the board approach.
10 MR. MILHOLLIN: How do you mean selective, John?
~
11 MR. FHYE: It's not aimed at selecting cases that
- 12. ougnt to be finally resolved in the agency before 13 construction commences.
14 MR. MILHOLLIN: Yes, it's selective as to issues,
( 15 'not cases.
lo MR. FRfE: Right.
17 MR. SdGE: Those issues would have to ce subject to to accelerated treatment, even if they are not controversial iv and aren't closely drawn.
20 MR. FRY E: Tha t's right.
21 MR. MILHOLLIN: Woulo you do that again, George?
22 MR. SEGE: These issues would have to go through l 23 the acceleratea treatment process.
l.
24 MR. MILHOLLIN - So even issues which are not --
l 25' even when they are not controversial and are not closely rT l '(_/
2
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j 706 09'I'3 136 pacMM. I drawn.
~
2 MR FRYE Or even though they couldn't be 3 impacted by . ongoing construction, . construction would still j 4 be held up. I l
l S MR. MILHOLLIN: I don't hear you. l 6, MR. FRYE Even though they are not issues which l.
I 7 could be impacted by ongoing construction, you would still 6 be postponing' construction. That's what I meant by being 9~ non-selective. It wouldn't be selecting those cases in 10 which there existed an issue which ought to be resolved ~in 11 the agency before construction were allowed to begin. They 12 would be doing that for all cases, whether they were the 13 cases that f ell in the category of those that ought to await 14 construction or not.
15 MR. MILHOLLIN: So it would not select out the 16 casas in which there was an issue on appeal which were 17 substantial anc controversial.
lo MR. FRY E Yes.
19 MR. MILHOLLIN: Okay.
20 MR. KdIEL: I guess I would just like to add that 21 it's been cone for 23 cases already, 22 MR. QUAY: A good history built up.
23 MR. KNIEL: There's no reason to believe that
. 24 there's any hardship involved in doing this on the part of 25 the a pplicant or the staff or anybody else. There's an l'
l O
r -
706'.09 I4 137 ch I ample record of performance on doing - on addressing these 2 issues earlier and resolving them earlier.
a 3 MR. QuM That makes it better, because we've got j 4 a substantial data base to draw it.
l 5 MR. KNIEL: Right.
1 .
6 4
7 i
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15 16 17 ie 1y 20 21 22 23
. 24 25 O
706 10 01 138 i
MM i MR. MILHOLLIN: Any other comments on option 87 l 2 MR. CHO: Yes. Let me go back and again make my 3 point about giving added incentive to prolong the 4 proceeding, this option. Granted, as Karman points out, 5 everything covered in the environmental impact statement is
. 6 now. subject to litigation in licensing proceeding, but once 7 that proc.eeding is over, then under the .present rules, you '
8 see, work can go on.
~
9 But if the ef f ec t is delay under this option, I 10 guess what I meant to say they would pursue that on appeal, 11 all those issues that were raised initially will then be 12 pursued on a ppeal, and this is what I meant to say would 13 have added incentive to prolong the proceeding.
14 MR. KARMAN: The delay in affecting the decision.
g O 15 MR. FRYE It would encourage appeals.
16 MR. CHO Right. ,
! 17 MR MILHOLLIN: So, if an intervenor wants to le delay ef f ec tivene ss, he would be encouraged to a ppeal.
IV MR. CHO First doing everything they could under
[
l 20 the aegis of the hearing and then pursuing everything on 21 a ppeal .
22 MR. MILHOLLIN: That objection would apply to any 23 method by which ef f ectivene ss could be postponed, thought
. 24 wouldn't it?
25 MR. CHO: It would if you began fragmenting the i
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706 10 02 139 pv MM 1 issues that can be and cannot be or will and will not.
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(_) 2 MR. MILHOLLIN: Tha t would also apply, for 3 example, to option 9 wouldn't it? l 4 MR. CHO: If you f ragment, yes.
5 MR. MILHOLLIN: The incentive to press issues on 6 appeal would also apply to option 97 )
i 7 MR. FRYE No, I don't view it tha t way. I think l l
. 6 in any option that def ers effectiveness for all cases until 9 a 'certain point in the appellate process is reached is going 10 to encourage appeals on all sorts of issues in order to make 11 the a ppella te process take longer, to drag out or postpone j i
12 the point at which construction can actually begin.
13 But I think a proce ss that tries to focus 14 selectively on those cases which have issues which should be
(~h
(_) 15 resolved before construction begins, that incenti.ve would 16 not be so great. There would be an incentive to try to 17 ioentify issues which should be resolved on appeal before ;
le construction begins. But you wouldn't have the incentive to ;
IV a ppeal every li ttle adverse ruling that you got along the 1 20 way, which I think would exist in any system which postpones !
- 21 ef f ec tivene ss for all cases. i 22 1 A. MILHO LLIN: Of course, there would only be an 23 incentive to appeal on LWA issues in this option.
24 MR. FRYE Well, okay, yes, but you'd still havo 25 the incentive there.
l
706 10 03 140 l4M i MR. MILHOLLIN: In option 9 I gue ss, you'd have 2 an incentive to try to convince the licensing board that 3 there were substantial questions on environmental issues.
4 MR. FRYE But it would do you no good to appeal .
5 every little ruling the licensing board made along tbr uay
. 6 under that option because you wouldn't be def erring 7 effectivness or postponing ef f ectiveness for a longer period 8 by doing sot whereas, in any system that defers V effectiveness for all cases, whether it's limited to LWA 10 decirlons or vnat, there will be an incentive to appeal 11 every littic ruling that went against you along the way, on 12 the theory that it's going to take the appeal board so much 13 time to resolve each of those. And by doing that, you are 14 simply postponing the date at which construction can begin.
O 15 MR. QUAY: You're saying anytime you elevate the 16 decision level capability you're going to elevate the 17 a ppeals, too?
16 MR. FRYE What I am saying is, take option 8, you 19 know, take the option tha t no construction may begin until 20 you have final agency approval of an LWA. Okay. In order 21 to postpone the time at which final agency a pproval would be 22 given to a given LWA, i t seems to me there would be 'an 23 incentive to appeal every little rule the licensing board
. 24 made that went against you along the way.
25 MR. QUAY: Even to the commission. Right.
O .
9 0
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706 10 04 141 MM i MR. FRYE Because you know it's going to take so 2 much time for the a ppeal board to resolve it, even though it 3 may be frivo'lous.
4 MR. MILHOLLIN: If it's f rivolous, how much time 5 would it take?
, o MR. QUAY: It even refers to the commissiont 7 doesn't it, John?
- 8 MR. FRYE Yes.
9 MR. QUAY: If the commission has the option of 10 reviewing, then you can appeal to the commission. It would 11 hold it up there, too. !
12 MR. FRYE It would encourage appeals.
13 MR. QUAY: It might encourage, essentially, an 14 increased workload.
15 MR. FRYE I think it would increase the appellate 16 workload to the extent that it encourages a ppeals. Of 17 course, it would increase the workload that the appeal 16 boards and the commi ssion has to deal with.
19 MR. SEGE: John, I see the distinction you're 20 referring to, but couldn't someone who is interested in 21 delay appeal f rom the eff ectiveness decision of the 22 licensing board in option 9 just as easily as he could 23 a ppeal from other rulings under option 87
, 24 MR. FRY E Except that the eff ectivene ss ruling 25 under option 9 would be limited. It would really be very
[J
I l I
l'706 10 05 142 I l
pv MM 1 much the same as the current stay practice now is before the j
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\/ 2 appeal board. The only difference being that instead of .
1 3 moving for a stay before the appeal board the first time, 4 they would have already gotten a ruling f rom the licensing 5 board, which they would then appeal.
i 6 They would have to say, you know, that there are 7 issues I, 2, and 3 in this case which need to be resolved by
. 8 the agency before construction begins.
V - MR. SEGE: So, the would-be delayer would have a 10 smaller threshold to cross in option 8 than in option 97
.11 MR. MILHOLLIN: That depends on the state 12 criteria.
13 MR. QUAY: There's a distinction where 14 ef f ec tivene ss occurs. Right? 8, it occurs presumably af ter
() 15 the appeal board . acts: and 9, it presumably occurs af ter the l 16 licensing board is finished.
17 MR. MILHOLLIN: No.
I le MR. FRYE: In S, I would assume it would be the 19 final agency accion which, in almost every case, is the 20 a ppeal board. Okay? 9, it would be, you know, laying aside
- 21 the f ac t that you have a very small postponement of 30 to 60 22 days for all cases, which I think is probably insignificant, 23 9, eff ectiveness would occur virtually immediately af ter the
. 24 decision was reached by the licensing board unle ss an 25 intervenor were succe ssf ul in convincing the licensing board l
l l
I
L'706 t o 06 143 l
MM i or the appeal board or the commission, for that matter, that 2 it ought to be deferred until the agency has finally 3 resolved certain issues in the case.
4 MR. MILHOLLIN: But, JoFn, isn't it true that if 5 you change the stay criteria in options 6 and 9 to be the
~
, 6 same as the LWA criteria, that it's the same problem? You 7 have the intervenor trying to convince the appeal board that
- 8 under the stay criteria which you have now adopted, these 9 decisions should not be effective. And it's really the same 10 argument that, "Well, the licensing board made some errors 11 on these LWA issues." Isn't it exactly the same thing?
12 MR. FRYE Let's assume that we say, you know, any 13 issue raised in an LWA proceeding is subject to a much lower 14 showing in order to justify deferring the start of 15 construction until final agency action, which I think was 16 the idea that surfaced in our last meeting. But, still, you 17 see, you are not asking -- or you are not requiring a final 16 resolution on tne merits of those issues before construction 19 can begin.
20 All you are doing is taking a preliminary look at 21 those issues and making a determination whether those issues 22 are such that you better not let construction start until 23 you finally resolve them, like the slurry wall in Bailly, I 24 think, is a good example. Under that system, the appeal 25 board or the licensing board, whoever would have taken a
- (1) 1 I
i
!706 10 07 144
! i look at the case, and said, " Gee, I am sure I am right about p)g
\_ MM !
j 2 this issue," say, if I am the licensing board, that, you 3 know -- well, forget the slurry wall - "The we11 poin t to 4 watering system isn't going to aff ect the Indiana dunes one 5 way or the other. But if it does drain the bogs, you know,
- 6 we very likely will have irreparable damage on our hands 7 because there won't be any way this damage could be
- 8 repaired, and therefore I had better stay this decision 9 until the a ppeal board could look at the issue and resolve 10 it on the merits."
11 See, that's all he's deciding. He isn't deciding l
12 it on the merits.
, l 13 MR. MILHOLLIN: I see your point. The point is 14 the difference between making an initial decision on simply 15 stays -- separating the eff ec tivene ss decision f rom the 16 merits decision is what I gather is your main point.
l 17 MR. FRYE Tha t's the point.
16 MR. MILHOLLIN: And option- 8 does not make that f IV se para tion. It doesn't separate the eff ectiveness decision 20 f rom the merits decision.
'~
21 MR. FRYE Right. )
L. 22 MR. MILHOLLIN: Right. But I am not sure -- I 23 guess you could argue that because a dozen appeals might be
. 24 encouraged to a greater degree.
25 MR. FRYE I think it would probably tend to i
() ,
l l
l l
l '706 t o 08 145 i nv MM 1 encourage appeals. To wha t degree, f don't know.
fs kJ 2 MR. MILHOLLIN: Of course, the eff ectivene ss 3 question is going to tend to encourage arguments on 4 eff ectiveness, but i t won't take as long to dispose of them, 5 is your point, I think.
6 MR. FRYE That's right. That's my point.
7 MR. MILHOLLIN: Okay. All right.
. 6 Any other comments.
9 MR. CHO: Going back to 8, what do we really gain 10 cader option 8? It seems to me all we're saying there is 1
.11 that we are repealing the immediate-eff ectiveness rule, or a l
l 12 category of cases. Is that right?
13 MR. SEGE: Category of issues. )
l 14 MR. MILHOLLIN: Category of issues. l
( 15 MR. KNIEL: We make everybody do this.
16 MR. CHO: Yes. I am not su r e --
17 MR. MILHOLLIN: As compared to option 1, you gain lo the time which otherwise would be necessary to resolve all 1Y the non-LWA i ssues on a ppeal.
20 MR. CHO And we're saying that's not -- what's 21 lefc isn't really very much.
22 MR. MILHOLLIN: I don't know. There seems to be 4
23 some uncertainty about that. I gather that i t's 24 consioerable, from what Myron says. All the plant safety 25 issues would be of f the critical path. Only the side issues l
lO t
'706 10 09 146 MM . would be on the critical path.
l 2 MR. CHO: Like what plants?
3 'MR. KARMAN: Normal turbine missile problems, 4 various reactor-type problems. .
5 MR. CHO But aren't your major problems, like
. 6 seismology, need for power, aren't those the real big 7 i ssues ? Those are the ones --
6 MR. KARMAN: Depends on when the case comes up and 1
9 what problems we've had in the ensuing time. There may come 10 a time when suddenly turbine missiles is a he st item. You 11 never know. Sometimes a couple of years go by, and it 12 depends on what experiences we've had in other reactors and 13 how that would be aff ecting this particular one, you know, 14 swinging into -- does it get into generics, does it not get 15 into generics? These are the kinds of problems that you !
l 16 hav.e, and it can be sticky. i i
MR. CHO:
17 Those kind of issues, it seems to me, 16 coulo be raised under an LtVA type of proceeding, as we lv envision it.
20 MR. KARMAN: I con't believe so.
21 MR. MILHOLLIN: Not if we stick with the 22 categories we have now.
23 MR. Cdo Why not cover it in an impact statement?
. 24 You've got to make some general finding.1, and if a turbine l 25 missile raises a real saf ety question, I don't see how you l
t~
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l l7706 10 10 147 l pv.MM i coula make that basic saf e ty finding. i 9 2 MR. SEGE: I suppose that we could identify as a i'
3 disadvantage of option 8 that it would be subject to gradual 4 accretion of issues less and less intimately related to the 5 eff ectiveness-related issues that we are starting with. So, 6 in the extreme, .99 percent of the issues about the plant 7 would be in this category and only one percent outside it.
. 6 And then the value of this option would be almost exactly 9 equivalent to the value of option 2-E.
10 MR. MILHOLLIN: Yes.
11 MR. KNIEL: I don't disagree with that statement 12 as a conjecture of what might happen. I can only say that 13 i '. hasn't happened in 23 cases or it has happened to a very 14 minor extent, and tha t process has stabilized. And although
/N)
(_ 15 the neec for that kind of process to occur isn't as strong lo now as it is if we change the rule this way.
17 There is a substantial incentive for people to 18 have nibbled away at it during the past proceedings because 19 they knew when the LWA was approved that construction would 20 s ta r t .
- . 21 MR. MILHOLLIN
- Tha t's right. So this may not be ,
l 22 a problem.
23 MR. CHO But our point is that they would pursue 24 that on a ppeal, where right now they may not. I l
25 MR. QUAY: Yes, the decision is made right now in j l
i I
\ >) l l
r = _ _ .
'706 10 J i 148 MM i the LWA.
2 MR. KNIEL: I heard you say that before they would 3 pur sue tha t on an a ppeal . But that doesn't upset me 4 particularly because the process is going to be -- the 5 appeal board is going to do sua sponte anyhow, so they're
. 6 going to review it anyhow.
7 MR. QUAY: But eff ectiveness isn't until the 8 appeal board gets done.
Y ' MR. KNIEL: I know. So what if they appeal it?
10 MR. QUAY: Construction is delayed.
11 MR. MILHOLLIN: But, there the point is since the 12 appeal board is going to ao a sua sponte review, what 13 matters, what makes a diff erence how many arguments the 14 intervenors make? It doe sn't make it any --
15 MR. QUAY: But you are delaying construction while Ic an a ppeal is ongoing.
17 MR. CHos There's a big diff erence between sua 16 sponte review and issues raised by the parties.
IV MR. 't XMAds Sua sponte is where nobody is raising 20 any issues.
21 MR. CHO: Where an appeal board need not address
., 22 each issue in rendering a decision. YoJ know, they Could 23 i ssue a paragraph decision, if they want.
. 24 MR. KARMAN "We've looked it overt it looks good l 25 to us . "
l 1
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149 l7706 10 12 pv MM i MR. FRYE They're certainly not going to go
(
(_) 2 through the record and say, " Gee, why did the licensing 3 board overrule this objection to continuing hearing for five 4 more minutes?"
5 MR. CHO When a party raises an issue, they've 6 got to finally decide it, but articulate the reasons for l 7 each decision. This is a time-consuming party decision.
. 8 MR. MILHOLLIN: I thought we were talking about 9 the problem of f rivolous appeals. We weren't talking about 10 the problem of meritorious appeals because presumably we
.11 will want to hear those. So why couldn't they be disposed 12 of rather quickly? I guess I don't see the problem there.
> l 13 MR. QUAY: It still delays. If it encourages them 1 14 to delay, they'll do it.
() 15 MR. OSTRACH: Can I try restating Gary's position?
I lo W ha t he's saying, I think, is it should not take -- okay, j 17 perhaps the f act that the appeal must be completed before l 18 eff ectiveness occurs will induce more parties to raise more lv issues on appeal and raise perhaps more frivolous issues. ,
1 20 Non e t he le ss , since the appeal board is already conducting an l l
. 21 appeal, it will be presumably a contested appeal. There 22 will be some issues that the parties will have raised 23 anyway.
24 What you have on the margin is the appeal board
- 25 dealing with some issues which were brought by a party which '
ts
-~ .. . .-- - .. - ~-- . .- ___ . ..
l
'706 10 13 150
! JM i were frivolous, which, if we didn't have this process, the 2 appeal board would have looked at sua sponte. Since we are 3 . defining those as f rivolous issues, I don't think they're 4 going to spend much more than the paragraph we were just 5 told, throwing them out.
. 6 MR. CHO: That's the problem, I .think, when we 7 assume that these a ppeals are necessari.ly f rivolous.
- 8 MR. MILHOLLIN: If we're not, then there is no 9 problem. !
10 MR. KNIEL: If it has merit -they'll go right now 11 for stay, and tnen the appeal board will have to consider it 12 just like they do now.
13 MR. OSTRACH: The disadvantage was inducing the 14 bringing of f rivolous appeals, appeals that would not now be O lb brought. The counterargument of the chairman is that since lo the appeal board already looks at all possible arguments sua 17 sponte, it isn't much more difficult to look at f rivolous lo arguments raised on appeal . I think that's a convincing-1 19 argument.
1 20 MR. CHO If I am handling a case on appeal and if 21 I see 50 possible issues, my normal tendency is to say
, 22 there's about three or f our tha t I can really make a strong
. 23 case on. Now, the rest of the concerns I have are no t
! . . 24 frivolous, but, in my judgment, they don't warrant raising 25 and pursuing, because they are going to aff ect --
(~s i i \_)
f 4
i,
l l
706 10 14 151 l
MM 1 MR. KARMAN: They're going to dilute your strong 2 arguments.
3 MQ. CHO: Right. So I do not raise thesa, and 4 concentrate only on the three or four that I think are .
5 really strong. And I want to emphasize that the other
. 6 questions I have are not frivolous ~ones.
7 But with such a rule as this, I have every 6 incentive to raise every issue that I can. And again, let y me emphasize that it need not necessarily be f rivolous. I 10 have seen some of these recoras where 150 questions have 11 been raised on appeal.
12 MR. OSTRACH: In other words, you're saying that 13 this rule would tip the tactical balance for an appellate 14 lawyer's bringing up issues in the direction of shotgun 15 a pproache s .
lo MR. CHO Right. And then, the ultimate poin t I 17 am trying to raise, a ssuming this takes place, then what to nave you really gotten other than a re peal, to a large lv extent, of the immediate-ef f e ctivene ss rule. Now, we 20 understand, tnist tha t's one thing. But that's the point I 21 am trying to make.
22 Md. MI LHOLLIlJ I guess we've already made the 23 point that what you gain is you exclude the issues that are
. 24 not within these ca tegories.
25 MR. CHO Which may be relatively fews that's what l
lO
. . _ . - _. - _... _ .___.._ _ ..___...__._~. ___ .. _...__ _ ._. _ . _ _ ._ _. _ . _ ._
'706 10 15 152 MM l. I am suggesting.
2 MR. MILHOLLIN: We have the experience nece ssary 3 to cetermine that question.
4 MR. OSTRACH: Not quite. .
l 5 -MR. CHon. 01.fferent ground rules.
. 6 MR. MILHOLLIN: Under differenet ground rules.
l .
7 MR. OSTRACH: Nobody has had an incentive now.
+ b They've had less of an incentive to creatively move things 9 from safety to LWA. Now they would have a gigantic 10 incentive to try to figure out that argument.
11 MR. MILHOLLIN: Tha t's right. They would. But 12 since the categories are established through experience, 13 there is also a sufficient basis for resisting that basis.
14 MR. OSTRACH: True.
15 MR. MILHOLLIN ' You can say the last 23 cases.
pl0 lo Tha t's not the way we do things. You wait until later, and
~
17 that would be , I assuma, a perf ectly just position by the i
16 licensing board.
IV MR. Cdo I am not sure we decide on the basis of 20 LhA or non-LMA. We decide these things on the basis of the 2J meri ts . But we've raised another question now, sort of a 22 jurisdictional question. Is this an LWA and therefore does
. 23 it postpone the immedia ta eff ectivene ss. So, I am not sure
., '24 what you say is correct. t 25 MR. MILHOLLIN: Anything else in option 87 r
i
l'706 11 01 153 tu 1 (No response.)
l 2 MR. MILHOLLIN: What about option 9-67 I think in 3 our discussion last time, we were noticing that the biggest 4 disadvantage of the option was the necessity to define the 5 criteria. Isn't that right. John?
. o MR. FRYE I think so.
7 MR. MILHOLLIN: It seems to me in our discussibns 6 that seemed to be the place where we stumbled the most, and Y~ as we broke up there didn't seen to be any promise that we 10 could get over that hurdle.
.l i MR. FRYE By criteria you are ref erring to how 12 you define what issues would be under a relaxed A standard?
13 MR. MILHOLLIN: Right. This also would a pply- to 14 option 6.
15 MR. KARMAN: I thought John Cho's note was very lo helpf ul in that defining the standards that have been used.
l '/ MR. FRYE: under the Virginia Petroleum Jobbers?
16 Y es, I thougnt so, too. And I think it raises a very IY interesting proposition that perhaps flexible application of 20 the Virginia Petroleum Jobbers' standard answers the problem 21 much better than trying to define a separate set of 22- standards for all sort of issues.
23 MH. MILHOLLIN: I guess I don't understand, then,
. 24 what a flexible a pplication would be.
25 MR. CHO You know, one of the problems in the l
l ($)
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. _ ... .. _ _ _ _ . . _ _ _ _ _ _ . _ - - _ ~ _ _ _ _ _ _ _ _ _ _ _ _ . . _ _ _ . . _ _ -
'706 11 02 154 3 Ma i past is that it's very difficult to 'obtain a stay because 2 often they can't show irreparable harm.
3 MR. MILHOLLIN: Or likelihood of success on 4 appeal. .
1 5 MR. CHO: Or likelihood of succe ss. Now, under !
, . 6 the strict interpretation of tnose criteria, if you fail on 7 any one then you tail on your request for a . stay. But I 6 think under the so-called flexible approach, even if you v failed on one, if you make a strong showing on another, say, 10 the public interest criterion, it may still obtain you a I l
11 stay. i 12 In other words -- l 13 MR. MILHOLLIN: Could you give me an example of )
14 how you would make a strong showing on public interest j 15 witnnut making a strong showing on any of the other three? l 10 MR. CHO: Well, irreparable harm, I think we've 17 looked at bef ore from the standpoint of harm to the people 16 requesting the stay, harm to the environment, say, and the 19 traditional a pproacn has been , say, that you personally do 20 not suf f er from the narm to the environment and you f ail on 21 the irreparable harm criteria and theref ore the stay is not 22 warranted.
1 23 assuming that this environmental harm is strong
. 24 enough, one can say there is a strong public interest here l I
l '
l 25 in preventing this environmental harm. Then under the l
1
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!706 11 03 155
- ko i flexible approach you say, Even though you have not
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2 sufferea, there's a strong public interest here.
MR. MILHOLLIN:
3 Well, why would there be a strong 4 public interest in preventing the environmental harm?
5 MR. CHO Why would there be a strong public
, o interest?
7 MR. MILHOLLIN: Yes? In what case would there be?
. o MR. CHO Damage to the ecosystem, danger of some v- animal lif e --
10 MR. FRYE I hate to bring up Bailly again but I
.! 1 think this certainly -- a strong public interest in the 12 final determination of the dewatering issue before the 13 dewatering takes place.
14 MR. MILHOLLIN: Wouldn' t tha t be the same
} 15 standard as we were talking about earlier with the LWA?
Io Or the site-related or no-go issuest isn't that what you're 17 talking about?
Io MR. FRYE: I think, as I would envision the way IV this sort of an a pplication of stay standards would work, it 20 woula work out in practice to identif ying those sorts of
- 21 issues, procably, yes.
.22 In otner words, I don't think you would be able to 23 get a stay on an issue such as the distance by whicn the 24 cable trays must be separated, because there is nothing in 25 t ha t issue that could be prejudiced by ongoing construction, l
i
l l
' '706 11 04 156 l 3 MA 1 theoretically at least, until you get way down the line.
2 MR. MILHOLLIN: What about Sterling? Could you l 3 get a stay on Sterling?
4 MR. SEGE: Mr. Chairman, I think Sterling is 5 before the commission now. Is it appropriate for us to
. 6 discuss it here?
7 MR. OSTRACH: Sure. A case like Sterling.
6 MR. MILHOLLIN: Suppose a case like Sterling, 9 ' could you get a stay in a case like Sterling on flexible 10 standaras?
11 MR. CHO I'm not sure I know enough about 12 S terling .
13 MR. FRYE Sterling apparently was a case in which 14 there was a choice between two sites, one of which was O 15 already the site of a reactor and one which was not. And lo the selection was made in f avor of the one which was not ;
17 already the site of a reactor.
le MR. Cdo Well, just knowing tnat much wouldn't lv tell me enough to say that a stay is warranted.
20 MR. MILHOLLIN: Well, a stay would clearly be 1
21 warrantea in that eff ectivane ss would not occur in that l
22 case if there was substantial i ssue on the site under the 23 standards which would obtain an option 8, or an option 9,
, 24 but uncer the flexiole standard it's quite easy for me to 25 s ee t ha t a stay woula be cenied. j l 1 l
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'706 11 05 157 p MA I MR. CHO: It could be or need not be depending on 2 what makes the Sterling site so mucn better than the other, 3 or wnat. aetrimen.t would result from the other site as 4 contrastea with Sterling. Those are the f actors one would 5 have to know.
. o MR. MILHOLLIN: You'd have to show likelihood of 7 success on appeal, wouldn't you?
o MR. FRYE: Not necessarily.
Y MR. MILHOLLIN: Well, if you wouldn't have to show !
10 any of the f actors, what is the standard, then?
~
.11 MR . FHi E s I think the point is that you would 12 have to make a very strong showing, say, on public interest 13 or relative harm to the parties. ;
14 MR. MILHOLLIN: Wha t I'm ge tting at is, if you O 15 have to make the showings which are contained in the i
l lo standard in option 8 or 9, why not use that and just forget '
17 about this flexibility, which doesn't seem to be -- what le you're saying is .the stanaard is so flexible as to really IV not have much content other than the content we have 20 icentifiea in the other options. It seen:s to me that's what 21 you're coming down to.
22 MR. CHO I think the diff erence is this in the
, 23 option 6, as I understand its your standard is more of a
.. 24 scope standara, where under the criteria it's a quantum 25 s tandard. So there are two different thing s. j l
i i
l
l
'706.11 06 158 l r's MM i MR. FRYE We're really not talking about scope.
l \~)
2 MR. Cdo Well at least what I propose in my draft 3 was let's stick to the quantum standard, that at least ,
4 judicially we're f amillar with end we know, and let's not 5 try to complicate matters by adding a scope kind of standard
- 6 and raise jurisdictional type issues. Basically that's the 7 point I was trying to make.
6 MR. MILHOLLIN: Any other rerponses to either Y option V or the flexible application of existing Petroleum 10 Jobbers' standards?
11 MR. SdGE: Doesn't an injunction to a pply 12 standards flexibly invite litigation on the basis that one 13 man's flexibility is another man's arbitrariness? Wouldn't 14 there be a lot of doubt oaout just exactly how flexibly
() 15 which of the standard would be applied, so people wouldn't 1
lo really know what decisions would be made in a particular 17 case ano could take the position that whatever the decision l lo was applied too much or too little flexibility?
19 h,R. OdTdACH: If the question is would thare be 20 mute litigation with announcedly flexible standards than 21 with announcedly rigid standards, I think the answer is no.
. 22 The people wno are going to take us to court are goin,g, to 23 take us to court if the only matter of -- if the standard is
. 24 absolutely air tight and it's unquestioned that if the 25 a pplication is more than six inches thick it gets o .
'706 .11 07 159 kqp kW I a pproved -- we will be sued by people that were going to sue N- 2 us regardle rs of the application.
l 3 ' If the question is will the litigation be more !
l 1
l 4 likely to be successful if a court views the standards as 1
5 being suspiciously without content, I suppose that it true.
6 To the extent we can point to very clear standards that have l 7 been adopted and show little checks one way or another on l
- e them, I think our litigation posture is improved. To the 1 9 - extent that the standards are -- well, perhaps I'm going too 10 far there. On the other hand, to the extent the standards 11 are -- leave much realm for actual f actual discretion, we 12 could make an argument that way.
l 13 Maybe I be tter withdraw my statement. I can see 14 arguments going both ways on how much content you should put 15 in your standards.
Io MR. CHO Let me try to answer George's question. l 17 When we say flexible, it doesn't mean it has no limit. I l l
lo think we ao point to judicial precedent which sort of IV staared away f rom the strict inflexible approach.So we're 20 not saying, you know, we're out in left field from everybody
- 21 else. Our suggestion is we follow the latest judicial trend 22 in interpreting these criteria in a more flexible way.
23 MR. MILHOLLIN: Jo hn , the courts, though, have a
. 24 standara of review. District court opinions are reviewed by 25 appellate courts in the standard of review. There's no i
I
t
'70 6 .li 08 160 p MA i standard of review in NRC. The standard of review is free 1
l 2 substitution. The appeal board can substitute its opinion 3 for the licensing board on the f acts, without finding that 4 the licensing board was wrong.
l 5 So I'm not sure that you can say that the practice
, 6 of the courts should be the guide.
7 MR. CHO: I'm not sure of the relevance of your
- 6 poin t. We're talking about, what do we mean by irreparable 9 harm. What do we mean by likelihood of success? Wha t do we 10 mean by public interest?
11 MR. MILHOLLIN: I gue ss the trouble I'm having is 12 you're suggesting a system in which the appeal board has a 13 f ree power to review a licensing board decision, reverse 14 them even if they aren't wrong, just to substitute its own m
k~ 16 views, and you're also suggesting a stay -- that the stay 16 stancards should be a pplied in a way in which -- that is so 17 flexible tnat I have a hard time seeing that they have any le content.
IV In effect, i t seems to me what you'ra suggesting 20 is let's leave everything up to the appeal board and
- 21 everything will be all right. I don't think that can be 22 defended.
23 MR. CHO: I'm not suggesting the former because I
. 24 con't think I've said a thing about --
26 MR. MILHOLLIll I think tha t's the result of o
i r
l . .
l i
. _ . _ _ _ . - . . .__. _ _..~.___..____ _ .. _ ._._ .___._.-. _ .
1 .
706 .11 09 161 p #A I adopting that kind of a system, is that the a ppeal board 2 will have plenary power really without any limits.
3 MR. CHO It seems to me if what you say is true, 4 the appeal- board already has plenary. Power.
So I'm not sure ,
6 we're are changing anything under my approach. TFe only ,
, 6 thing we're changing is to allow the stay standard --
- MR. MILHOLLIN:
7 I think it does have, probably
. 6 does have plenary power.
Y - MR. CHO Let me emphasize and repeat the only _
l 10 thing I think we're changing is allowing the stay standards l
11 to be more brosoly appliec. In other words, each individual l
12 criterion does not have to be met to obtain sucess.
l 13 MR. OSTRACH: Hasn't the appeal board already done l 14 that?
( 15 MR. KARMAN I was just going to'say, will any lo' change you suggest say to the appeal board, Hey, you've got -
17 to stop your strict application of each of the four things. l lo I thought tne appeal board had gotten away f rom that. i lY Md. OSTRACH: I know they cited recent l
20 0.C. Circuit opinions tna t a pply flexible stay standards. l l
21 I've seen appeal board decisions, leading cases -- what is i 22 it, Holiday four, Metropolitan Transit Authority v. Holiday 23 Tours? And I know the appeal board has already citeo that.
-, 24 MR. KARMAN Either that or John Cho has cited 1 l
25 i t.
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- . . - - . - . .- -- . .. - . - - - . - . _ - - ..-_ - ~ . . - . . . . - - -
706 Ji 10 162 l kap MM i MR. CHO I had nothing to do with it.
\> 2 MR. KARMAda I saw that you cited it in your 3 little paper to us.
l 4 MR. CHO: It's f rom research done by ELD through .
5 Bill Parler at one time.
l ,
6 MR. OSTRACH: I think the appeal board has already 7 done that. .
. 6 MR. CHO: They certainly could. ;
l 9 -
MR. FRYE I think they had, to a large extent, i
10 followed that in the pa st. That's one of the reasons why
.11 the system has worked f airly well. !
12 MR. MILHOLLIN: Shall we take a break? Let's take 13 a 10-minute break and we will break up at 4:00 o' clock for 14 t he d ay . l
() 15 ( Re c e ss. )
lo 17 le 19 20
. 21 22 e
23 24 2b I
. s i
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- 706 12 01 163 ,
MM i MR. MILHOLLIN: Back on the record.
l 2 F.R. KARMAN: Mr . Chai rman, a pro po s of the 3 discussion of tne Virginia Petroleum stay standards possible 4 flexibility and utilizing such standards, my real concern ,
5 would be if we planned to change those standards or
,- o establish new standards that it would be a chaotic 7 situation. And I really have grave doubts that any viable 8 standards could be established within the foreseeable f uture V
~
as f ar as setting some good, viable standards for handling ,
10 of stays.
11 MR. MILHOLLIN: Do you think that also would apply 12 to option 97 13 MR. KARMAN: You've got some of those same 14 criteria involved there, too. My personal f eeling would be
-Q k/ I happen to agree with John's paper on the application of 15 16 the present court standards as handed down in the Virginia 17 Petroleum case. I just fear. I fear if we start to try to lo find new standards, we're going to find ourselves in a real 19 mess.
20 MR. MILHOLLIN: You mean because of the inability 21 to define what they woulo be?
22 MR. KARMAN: Exactly.
23 MR. SdGE: fou feel an injunction to be flexible
- l. 24 would involve less uncertainty, le ss chaos, than a new set l
- 26 of explicit standards?
2 G(~%
(
l
.706 12 02 164 pv At4 I IJR. KARMAN: I feel that would be in the very s first case that would come up, either to the appeal board or 2
3 to the commission, they could really set out what they mean 4 by " flexible" ano set it out -- and I think we probably .
5 would have some kind of stare decisis from that point on.
6 But " flexible," of course is a red-flag word. There's no 7 question about it.
. 6 But I am not quite sure how we could get around v it, other than the f act that when that first case comes up 10 for a commission determination, they would hcVe to be 11 specific as to what they mean by the type of standards and 12 our application of Virginia Petroleum, 13 MR. FRYE: Do you think it would be of assistance 14 if the commission, in advance of the first case coming up,
() 15 would put ou t a policy statement or something of that 16 nature, indicating their intent as to how, in general terms, 17 the criteria should be applied?
Io MR. KAHidAN: The an swer is "Ye s," if they would.
IV MR. MILHOLLIN: What's the difference between that 20 and having the commi ssion adopt new standaros?
. 21 MR. KARMAll: I don't think the commission would 22 know how to acopt new standards.
23 MR. OSTRACH: That's not entirely f air. The t
. 24 commi ssion didn't have much difficulty in setting out 25 appropriate standards af ter the court of appeals in Vermont l
,n
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l l
l706.12 03 165 pgl.iM i Yankee decision -
2 MR. KARMAN: This is within a reasonable time, I 3 am talking about. I am not saying they can't do it.
4- MR. OSTRACH: The commission did it in that case 5 in three weeks.
. 6 MR. KARMAN: I have my doubts. I can't go beyond
'l t ha t.
o MR. MILHOLLIN: What you're-suggesting is we just v leave it 'up to the a ppeal board to set the standards?
10 MR. KARMAN Or the commission. Why necessarily 11 the a ppeal board? Why not the commission?
12 !.lR. FHYE I think the commis isn has to speak to 13 this issue. And one of the obvious ways it can do so would 14 be through a policy statement.
.O 15 MR. MILHOLLIN: I guess the problem I have with to this is that so f ar very few people have been able to get 17 stays, whicn means that most' of the time you have lo construction going on during adjudication, and so you incur lv all the disadvantages. You incur f rom that f act principally 20 .the one of public perception. Also, you incur the 21 disadvantage of possibilities of sub-start construction and
, 22 environmental linpacts and so forth.
23' l4R. KAR;.t AN : The very basis of a stay is where you
.' 24 -have to come in with some pretty darned good reason for 25 stopping some thing. This is not just a " Hey, maybe yes, l
v
-- , , ,.~. ,- , .,. , . . , - -
'706 12 04 166
, py MM i maybe no," routine. It's pretty much the same as a motion
\- 2 f or summary disposition during the course of a proceeding.
3 So, what it does in the eff ec t is discourage f rivolous --
4 MR. MILHOLLIN: It's an extraordinary remedy, a ,
5 stay is.
, 6 MR. OSTRACH: And that raises a question that I 7 have had. I remember speaking to the man who drew up the
- 6 commi ssion's stay cri teria. Of course, they were just a v codification of preexisting precedent, which is why do we ;
10 call the stripping of ef f ectivene ss of a licensing board 11 decision by the appeal board or by the commission a stay?
12 They are no t -- or at least why do we treat it as if it were 13 a judicial stay? They're not in the same position. That's 14 w ha t Gary said.
() 15 Why should it be an extraordinary remedy? It is 16 clear why, when a court of appeals which has not had an 17 opportunity to consider the merits of a case, stays the lo effectivene ss of an agency decision. That is lv extraordinary. The court of appeals is not the expert 20 booy. Congre ss oid not select the court of appeals to make
- 21 the substantive cecision. The court of appeals is obligated 22 to give deference to the agency decision.
23 For them to strip that decision of eff ectiveness
. 24 before they've even lookeo at the merits of the case, that's <
l 25 certainly extraordinary. Those decisions are simply not the l
l 1
L
._ . _ . _ _ . _ . _ . . .. __ . . . . _ . ~ . _ . _ . . . . _ . _ . . _ _ . . . _ . . - _ _ _ _ _ _ _ _ .
l7061205 167 j pv Mid I ca se . When it's a matter of the ' appeal board versus the
( \
b/ 2 licensing board or, even more clearly, when it's the 3 commission versus the licensing board. The commission 4 doesn't owe the licensing board nearly the same sort of 5 deference.
- .. 6 'The appeal board has repeatedly said it doesn't 7 intend to give the licensing board that kind of def erence.
i - 0 And so, a t least initially, I can see how people are pu zzled V ' that they are told that it's a stay matter, an extraordinary 10 remecy. Why? They are co-equal bodies, at the least.
11 it was very easy to call these things stays and 12 adopt the Virginia Petroleum Jobbers criteria, because 13 that's what was around. But the situations are not really 14 analogous.
(} 15 MR. FRYEs What's your point, Steve?
16 MR. OSTRACH: My point is that it wouldn't bother 17 me it we -- if our recommendations in this area led to lo creation of substantially new criteria even though that ly would necessarily mean a fluid time, whatever those new ;
20 cr.iteria were, while those new criteria, whatever they were, 21 were being hammered out.
22 I think there is a' good case for saying tha t the a
23 present criteria were just a mistake, that they are not appropriate for judging whether or not one body of the
. 24 25 commission should deny eff ectiveness to a decision of a i
l lO l
'70o 12 Oo 168 qv MM i -
lower body within the commission.
s 2 MR. MILHOLLIN: It seems to me that they are 3 designea' to make it difficult to stop construction.' And I 4 don't think we can assume anymore that it should be S difficult to stop construction.
, 6 MR. FRYE Why not?
7 MR. MILHOLLIN: Because the motive for wanting to
. 8 promote construction is gone. NRC no longer is in the y position of promoting nuclear power.
G 10 MR. CHO: I am not sure the power to stay relates 11 t o --
12 MR. MILHOLLIN: As the AEC was when it adopted the 13 immediate-ef f ec tivene ss rule.
14 MR. CHO: I am not sure the power to stay relates
() 15 to promotion of nuclear power.
lo MR. MILHOLLIN: It seems to me it's effective to 17 make it cifficult to stop construction. It's succeeded to pre tty much in doing that.
19 MR. CHO: I am saying so what? If you go by the 20 cases we have looked at, I don't think we've seen evidence i
e 21 to incicate that stays should have been granted when they I l
22 were not and construction should have been stooped when they 23 were not.
, 24 MR. FRfE I concur. I don't see anytning in the 25 record that would indicate that the stays have not been 0v 4
l '706 - 12 07 169 l
pv M!.t . I granted when they snould be.
/~
2 MR. CHO Now, if you want to say as a ma tter of j 3 policy in the future it ought to change and we ought to come ,
l 4 up wi.th reasons to support t ha t. And I think that's what ,
i 5 we're trying to do.
l 6 MR. MILHOLLIN: Well,* the reasons I think we have 7 identified are that you have the advantage of increased i . 8 public confidence in the process if you don't have the i
V - building going on while you're deciding whether or not i 10 you're going to have the plant.
il MR. Cdos I accept that.
12 MR. MILHOLLIN: And that advantage is very hard to j l
13 get with the. present stay criteria. So, I guess I would 14 have to say that that's a problem I have with using the
() 15 flexible or inflexible. The result tends to be that you lo have construction. And so there is a sacrifice in keeping 17 them.
le MR. CHO : I think I can agree with you until the 19 last comment. That's where I think I part company with 20 you. I think one advantage of utilizing the same -- w he n I l* 21 say " utilizing" -- specifying the same standards. I think 22 these standards are well recognized within the 23 legs 1/ judicial community. Now, as a ma tter of f act, one can
. 24 give it broader interpretation that we have in the pa s t, and l
25 this would accomplish the objective of achieving more l
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,1706 12 08 170 i
- pv i/M i stoppage of construction, and this is what the object is, E ,q ,
V 2 witnout changing the words of the criteria.
3 But I think when you do change the words of the 4 criteria, then you do bring into consideration lack of 5 understanding, certainly >n the part of the bar, and, when i 6 it gets through judicial review, on the part of the courts. ;
7 So, nece ssarily, I think, there will be a period . .
1
. 6 of learning by everyone, and during this learning period I y think there will be a period of confusion.
10 MR. MILHOLLIN: I think that's necessary anytime 11 you change the system. Yes, I agree.
12 MR. CHO: So, I gue ss, what at least I was let's change, but change the minimum :
13 proposing earlier is 14 necessary to accomplish the objective of taking care of
,7
(. 15 these really one or two bad cases that might come up on the 16 horizon.
17 MR. FRYE I wonder, do we agree? I am curious, I 16 guess. vo we agree tha t the prinipal -- maybt even the sole 19 reason -- f or considering changing the system is the public 20 perc e ption? Or do people f eel that there are other reasons.
. 21 as well?
22 I think, George, you probably went through this.
23 You made some of your thoughts on it clear in the past
, 24 meetings, but I just wonder what others' might be along 25 those lines.
i l
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'706 12 09 171 pv MM i MR. KNIEL: I think we all agree'that public (q> 2 perception is a significant part of the reason that we woLid 3 want change.
4 MR. KARMAN: But on the basis of our historical .
5 recapitulation of all these cases, is there any kind of an o
- estimate what satisfying that public perception could have 7 cost in terms of delay?
. 8 MR. MILHOLLIN: There are two points, and I was y going to come to that. I think I would say, from my own 10 point of view, public perception, I think, is the principal 11 reason I have for not -- for thinking that the system should 12 be changeo.
13 And the second reason is that I don't see very 14 much advantage to having early construction. And t ha t's
) 15 something we haven't talked about very much. In my own lo mind, I see a scale of public perception on one side and the 17 advantage to be gained by beginning early on the other, and lu I guess I have to admit I don't see much advantage in lv beginning early, either in terms of dollars or scheduling.
20 And that's something we haven't discussed, is how much money
- 21 we're really saving.
22 MR. LOVELACE: I disagree with you.
23 MR. MILHOLLIN: How much money are we really
. 24 saving by starting early.
25 MR. KARMAN: This is my question.
l q
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I f706 12 10 172 pv MM i MR. MILHOLLIN: Yes, I know.
7 2 MR. OSTRACH: Before we go any further, I want to 3 say there is another question that I just heard raised for l 4 the first time and that I haven't thought about, is how much 5 public perception do we gain with the se various options?
6 It's not clear what we have to do to satisfy which part of i .
7 the public? I mean, clearly, there were people in Seabrook
. 8 whose perception -- Tony Roisman has said repeatedly in l y public that any nuclear licensing system that permitted 10 Seabrook to be licensed is inherently unf air: there is no
~
11 conceivable way that plant could have been licensed under 12 the A tomic Energy Act.
i 13 So certain members of the public, it doesn't 14 mottar what we do or say, if certain plants are built, they 15 will assume the system is unfair. Their perceptions can't i
l lo be satisfied regardless of what we come up with.
17 So, we have to be caref ul in recognizing just how 16 mucn are we improving the public perception situation with IV various changes. We ruight makr something we think is a 20 change, but actually the people it's directed to won't
. 21 a ccept it. That's, you know, a f actor that has to be 22 weighea against how many dollars are actually gained by 1=
23 early construction, how much public perception is gained by
. 24 delaying early construction.
25 MR. MILHOLLIN: I doubt if you can find an L
l
.706' 12 11 173 pv AM 1 intervenor, though, who would say that the change was not a
() 2 good thing if it were in the direction of postponing 3 construction. If that's your criterion. What you're saying 4 i s you can ne ver sa ti sf y som e peo ple. .
5 MR. OSTRACH: An' I am not sure -- there are lots 6 of things in the world yr s can say are good things but don't
+
7 alter the results.
8 MR. MILHOLLIN: Yes.
9 MR. KARMAN The best they will say is too little I
10 too late.
il MR. OSTRACH: Yes.
12 MR. SEGE: Mr. Chairman, it's important to 13 recognize that even though this agency no longer has a 14 responsibility for promoting nuclear power construction, i
) 15 that that does not mean that a real urgency on the part of to others and on tne part of the public would not exist. The 17 possibility of changes in power demand forecasts upward 18 rather than downward could create new urgencies.
IV And also, historically, the way utilities have 20 been buying plants is they have tended to adjust their
- l. 21 perceptions of need to the cost of money, and they would buy 22 piants when they could borrow money cheaply and they would 23 delay plants when money is expensive.
24 If, in a period of expensive money, plant starts 25 are delayed to a point where an uncomfortable urgency arises i
i.
I l
i l
l
'706 12 12 174 I
pv MM i in order to meet future demand, there could be pressures in -
l
() 2 the outside world that do not relate directly to the mission )
l 3 of this agency, but that this agency nevertheless must i 1 \
4 accord an appropriate respect as being a part of that L
5 complex of considerations that we identify as the public l
\
6 interest. !
7 MR. OSTRACH: I think there is a simpler way of l 8 getting to the same result. Like every agency in the l 9 Federal Government, the commission has an obligation to keep 10 close track of its procedures to minimize te the extent 11 possible its interference with private decisionmaking. If l 12 the commission is aware of a way that it can cut its 13 licensing procedures f rom 12 months to six months, say, l
i 14 without sacrificing other values or without significant 1
f> sacrifice to other values, I believe it's obligated to do
\_)T 15 lo t ha t.
17 The commission is an interf erence with private IS activity, and it should a ttempt to do its job as promptly as I 19 po ssible . I think that, apart from the original concarn of 20 sponsoring new -- you know, because that would help nuclear
, 21 power, that is no longer a legitimate carollary, but I don't 22 think it's a necessary predicate, either. The commission 23 should try and make its procedures as ef ficient and as l ,
24 expeditious as possible, because every government agency 25 should do that about any set of procedures.
()
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- , - . . . - . . - - . . . . - . - . . . . _ - . . - . ~ . . . . . . . . . _ _ - . . . . _
!'706 12 13 175 pv MM 1 MR. SEGE: - And the less direct and the less m-
.(d- 2 central interest in expeditious procedures does not mean 3 that there is a complete absence of such interests on the 4 part of this agency, i 5 '
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l 176 "Of-T3.1 Bd V jsh- 1 MR. MILHOLLIN: Yes, I agree. Mayce we coula talk 2 aoout -- excuse me, John. You brought up the point of 3 whether there was any -- and I interfered with my statement . i 4 a bout the cost of delay.
4 6 derhaps other people would like to mention whethat they 3 fina disadvantages to the present system other than the one
' - / of public perception. I think that that was John's question.
3 Whether there are other principal advantages --
/ 1R. OSTRACH I think George identified at leest l IJ one other one very well, tha risk and sometimes f act of 11 aislocatns due to start /stop situations.
12 MR. MILHOLLIN: Yes.
l 13 WR. FRYE I think that's probaoly f airly low risk, 14 though. )
l 15 MR. MILHOLLIN: Certainly it would ce infrequent.
la MR. FRYE 3aseo on historical information.
1, MR. MILD 3LLIN: It would ce infrequent procaoly, 13 I gua ss I would iaentify the increased difficulty of having l
I/ the commission participation in decision-ma'.cing before 22 construction oegins as a disadvantage of the present system.
21 I taink the commissioners, 6t least some of them, perceive 22 that as a s3 vere disadvantage, one that we have to take into i - 23 a cc ount .
24 4R. FRfE: I gue ss what I was trying to do is to 23 see if we could focus on th? proolems.
O r
l l
i l1705.13.2 1 77 l
B.. gsh 1 44.-0STRACH: We all have my Section 3.3.
l z MR. FRYE Let's tailor our discussion on l
l
~ 3 con:1usions around the problems. That was wnat I was really
- 1 l 4 driving at. I don't know if that's appropriate now or not, i
o MR. MILHOLLIN: I think that that's a good suggestion.
3 MR. FRYE But if the basic problem is really
. 4 puolic perception, what sort of a solution is feasicle and S should we consider?
9 MR. CHO Only ones Repeal of the immediate 13 e ff s:tivene ss rule.
1 11 MR. MILHOLLIN: Well, anything which is going to 12 tend to reduce tne construction during adjudication would 13 improve puolic perception, arguably.
(b 14 MR. FRYE Arguaoly, it would. But Steve has la raised another point which I think is very cogent,, whien is la that the agency has an obligation to interfere no more tnan le necessary in the private sector in carrying out its mission.
13 And if we can look at what we heve done so far and say 1/ that the immediate effectiveness rule has not created any
, 23 proolems in general in the accomplishment of the mission of 21 the agency, out it has had some adverse impact in regaro to 22 puolic percaption, doesn't that influence us somewnat?
- . 23 1.id . MILHOLLIN
- Then we get back to the otner 24 di sadvantage s. I'm not sure that I woula apree with that 2; formulation. The mission of the agency contemplates the 4
(/
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. . . - . .- . . . - . . . -- -- -. . ~- _.. --
Xt 06.13. 3 178 O
d.(_/gsh I sbility of the commissioners to get involved before z construction begins, then that does influence whether the 3 agency's mission is being carried out. i 4 MR. FRYE I think the mission of the agency is 6 prooably stated in broader terms. At least I would state I
'+ l 6- it in broader terms. It's to insure that the plants are e licensed only after adequate safety and environmental reviews 1 3 have been completed and appropriate conditions added to the
/ licenses where necessary.
10 I don't '<now, does that involve tne commissioners ceing 11 involved in each and every case before the license issuest 12 Md. MILHOLLIN: Well, a system which makes it very 13 difficult to get into a case before it changes due to s'% 14 construction may make it difficult for them to participate 4j lo in the mission of the agency to a very significant extent.
la 44. FRY 2: de 11, cartainly, we ought to oe il conc e rned aoout any roadblocks to tneir participation.
13 44. MILHOLLIN: Also, I think we ought to talk suout 19 the extent to which we are interfering with private
, 2) cecision-mading, whether an additional postponement --
21 whetner a postponement of eff ectiveness would be a significant 22 intrusion.
23 Planners tell us it wouldn't be to prospective plants 24 oecause they'd simply come in early.
26 de know from data, historical data, that for quite a f ew i
I
7706.13.4 179 d 1sh I plants a deferral of effectiveness would not postpone 4 operation. And then in the case of where it would, the cost 3 is not so great prooably as to be a decisive f actor. But .
4 that may be disputed. I don't know.
5 Sill, are we talking about 50 million a year if we don't
+
$ count inflation?
, MR. LOVELACE: . probably. I would say it would a' vary. You know, one person will tell you one thing and
/ another will tell you -- it cepends on locality, too.
- 1) Md. MILHOLLIN: I'm assuming sometning like 4 11 million a month for replacement, if you need it, and maybe 12 half a million a month for interest, extrapolating from the 13 CB0 figures, which appear to be low.
f )J 14 MR. LOVELACE 'They say about S8 million a month, la S8 or $9.
15 MR. FRYE But I tnink that incluced inflation, too, 1, cidn' t it?
15 MR. MILHOLLIN: Yes, that includes inflation.
19 MR. CHO Why are you excluding inflation? I don't
, 2) understand that.
21 'iR. LOVELACE: It's there.
24 Md. MILHOLLIN: Because it doesn't represent real 23 resources. It just represents numerical sums which have oeen l
l 21 assigned to it.
l
- 2; MR. CH3 Inere's nothing in tne record to support t
l l
- . . . . -- -. . . ~. .-
'iO6.13.5 180 O that, Mr. Cnairman. I've heard that befors.
B.t%sish I 2 MR. MILHOLLIN: There's nothing in the record to 3 support that it's wrong, either.
4 MR. CHO: No. But we do have the figures from the
- Congressional budget office.
+
5 MR. MILHOLLIN: If you read their report, tne report I says that it doesn't represent the use of real resources.
3 I'm just quoting from their report.
/ MR. CHO: Throw it in there. But I don't see it
- 1) in any of the material I've read.
11 M4. MILHOLLIN: I might be able to find it in here 12 somewhere.
13 MR. CHO Well, good. But anyway, I think that these are the kirds of things that we ought to be focusing on I f 14 15 thint before we really can discuss the options.
15 i4R. MILHOLLIN: If you have a. cost of 50 million a 14 month for the cases in which conrtruction -- operation is 13 delayed --
19 44. OSTRACH: tias that 50, five zero?
, 23 MR. MILHOLLIN: Excuse me. 50 million a year.
21 3orry. 50 million a year. That's my number. All right?
22 Everybody has his own number, I guess. If you con't include 43 inflation, that's probaoly a number which is as realistic l.
24 as any. Assuming the Congrassional Budget Office said, what, l
2; 2.5 per month for replacement power -- but that's ooviously t^%
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7706.13.6 181 (h
Bh ';sh I far too low. And .3 million for interest. But that's too a low also.
3 So if you assume 3 or 4 million for replacement power and 4 half a million for interest -- J o MR. OSTRACH: That's certainly a lot less tnan the 3 figures that I have seen in connection with the seismic
. / shutdown. The papers filed with the commission by various 3 of the utilities who are operating the plants shut down in l
/ .4 arch for tne earthquake piping, and they were throwing IJ around numoars much larger than 3 or 4 million a month for 11 replacement of power, a lot more than that. ;
12 MR. LOVELACE: Much more.
13 MR. FREY: CB0 was 2-1/2 million for replacement l (hh 14 power, 6.1 million for inflation. 250,000 for intere st per 15 month.
1 la And they had caseo some of the assumptions, as you point ]
- 1. out, were, I'm sure, quite accurate when they made, out they i 1
13 loot pretty puny now. They assumed 2 percent annual real l
11 increase in the cost of a barrel of cruce oil. !
l e 2) (Laughter.)
21 Gatting to the cost of 23.18 a carrel oy 1987. They l 1
22 assume 7 percent interest and 9 percent inflation -- excuse j l . 23 me. 7 percent inflation and 9 percent interest.
! 24 Certainly, those are not realistic for today's terms, oy l ;
25 any means. So $50 million is procaoly quite low. !
1 (El !
1 l
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l'706.13.7 182 l r i
S(~)ish q, I ;4a. CHO So much so that I wonder why we have the I 4 reference to that study in here.
3 MR. LOVELACE: It's the latest figures that we have.
4 MR. SEGE: Also, it's useful --
l a MR. MILHOLLIN: The $50 million is not using those ,
'e 6 figures. The $50 million is using figures quite a bit higher e than that, using half a million for interest instead of .25 3 and using 4 million a month instead of 2.5 million for 9 replacement.
Is 3ut those are just my own numbers which I picked out of Il the air. I have no idea whether they're accurate or not.
12 If you double those figures, you get about 60 million a 13 month, I think. l fJ w
T 14 A year, I'm sorry. Excuse me, yes. I la MR. SEGE: In any event, it's useful to hav'e results 13 of a study such as the CB0 study even thougn the assumptions I/ that they have used neeo adjustments because you at least 13 have some results that could be adjusted to adjustments in 19 a ssumptions.
, 2] '42. MILHOLLIN: We're talking aoout what, 5 percent --
21 it ws assume a celay of a year, whica requires repiscement 22 power, tnat would be aoout 5 percent of the project cost, 23 would it not?
24 :47. FRfE: There's something else that negs at me 23 when we tal'c along these suojects. I don't know whether it's i
l
406.1 3.8 183
[)
Bes/ ;sh I really something we need to oe concerned about or not.
e But we have been going through or have gone through a 3 historical period in which demand has been f alling of f.
4 MR. MILHOLLIN: That's right.
5 MR. FRYE And it seems to me that the thing that
$ we really have to be concerned about is should we get into
. 4 a situation where the agency is again processing a lot of 3' construction permit applications, we may well be in a 9 situation in which demand is reversed and is rising quite IJ rapidly. j 11 And if tnat should happen, I wonder if the public interest 12 in getting a plant on line, aside from cost, maybe oecomes 13 more important, or the more important consideration than the tjllI 14 cost of delaying it for six months or a year.
- 1) MR. MILHOLLIN: That was certainly the case when la the immeaiate eff ectiveness rule was adopteJ, wasn't it?
I li 'tR. OSTRACH: No.
. There wasn't any feeling of ;
13 urgency in meeting need. It was a matter of urgency in an 1/ effort to mske nuclear power more competitive with other
. 2J forms of power. l 21 ihere was no reason to Delieve -- there was no f eeling tnat 22 if we don't let these people hurry up anc psc the nuclear
. 23 power plants on line, there won't be enough lights. It will )
24 just be that if we con't have the speedy process, people 26 will ouilo : cal plants. (
l f
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l 113 13.9 184 Bi :sh I S; toere was no feeling that there wouldn' t ce plants.
2 .da. SEGE: The urgency -- there was a sense of 3 urgency to aevelop a viable nuclear option rather than urgency 4 to make electricity by nuclear plants.
h 5 MR. KNIEL: It doesn't sound quite right. Neither ,
5 of those two statements doesn't sound quite right.
~*
4 I think tne AEC's view always was not to penalize the 3 nuclear option with just cause.
2 I think since the licensing procedures for nuclear plants 10 were extensive and there weren't at that time any or very 11 little licensing requirements for old plants, that they 12 didn't want to excessively burden tne nuclear option with 13 licensing, rather than to promote the thing all that much --
lM i
i 14 MR. KARMAN: I think the pre ssure was from the joint la comni ttee more than anything else at that point.
i 13 4R. CHO I t may ce , but I think Carl's analysis le is probaoly more correct. The motivation was not so much.
l 15 It was promoting in a very oroad sense. But I guess it was 19 not to put them at sq unnece ssary competitive disadvantage.
'* 2) 31 4 . MILHOLLIN: Mould it be usef ul to nave snother
. 21 meeting in a week to continue our discussion of the options, ,
22 see if wa can arrive at some conclusions?
. '53 4R. OSTRACH: I don' t think that we have any choice.
l 24 Md. KARMAN I think it would be.
22 Mt. CHan ~4r. Chairman, I would suogest that our
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. B. ;gsh I next meeting, to.which I agree we1ought to first concentrate 2 on the findingsnthat we can make. And I think that that
.3 l ougnt to helpL us in a rriving -at our options.
l 4 M2. MILHOLLINs.Okay. I'll try to get a document l3 '
5 out.during the week listing findings.
6 Md. CHO I think that they-are gatting to a lot
/ of the things that you are mentioning.
Md. MILHOLLIN: Could we all agree to make up a list 8
9- of findings individually?
10 MR. OSTRACHs Would that be helpful?
- 11 MR. SEGE: Are we going to be able to put them
'12 together it we end up with 10 sets of findings?
13 MR LOVELACE: It would be such a wide range, it
- h. 14 would seem to me.
.15 .MR. OSTRACH: Not only that, but there would be a lot 16 of findings which are more or less the same, but somewhat ir d i f f e rent.
13 I think it would be a lot better to start with one sot, 19 then add or subtract.
- '20 HR. OSTRACH: All right. I'll send everybody a set
. - 21. - that you can add or subtract.
l 22 MR. CHos I think I have covered several of the -
23 points-apart from tne wording --
- 24. 43. MILHOLLIN: Ted has gi ten me -- so f ar I have 7
( 2i my own which I circulated some time ago. I have a set that fed O
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i7 13.11' 186 B. gsh- I gave me and I hav+ John's. I 2 So why don't I try to ma'ce a set out of those three and 3 send them to everybody.
4 I guess I could dictate them. Georgs? Steve? Would that
$ 3 be possiele?
o M3. OSTRACH: You could dic, tate them to me. :
I ' Md. MILHOLLIN: All right. And then have them 8 typed and sent out during the week n3xt week. We can just 9 meet back hare.again next Friday at 9:00. Is that agreoaole, IJ or would you prefer 9:307 11 9: 00, okay?
12 Md. OSTRACH: For the purpose of the Federal 13 Register, that will be a continuation of today's . meeting?
14 M7. MILHOLLIN: Very well, a continuation of today's 15 meeting next week at 9:00, in which we'll continue our I 1
15 discussion of the options with a view towards agreeing on is findings and agreeing on at least those options which we 13 think are the most fruitful ones to pursue. ;
19 MR SEGE: Mr. Chairman, let ma suggest two things Y
23 that the group could do between now and next Friday which l 21 mignt help a t that time in focusing of the discussion. ;
2d Even though we may not b) preparing separate findings,-
23 each of the 10 o f us , i f we have some thoughts on wnat should i 12 4 oe found or concludad, that are quite n,3w and diff arent f rom 23' what has already come up for discussion -- it might be wall
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' /7: ' .13.12 187
- l. o
' b- gsh. I if we try to formulate those and be ready .to present them, 2 and if it's early enough, try to distrioute' them. Not 3 try for comprehensive set, out if th?re is something new -
1 and'different -- I don't know what it might be - to try g > to formulata those.
'6 The second suggestion I would ma'<e is that it might be o 4 well for us to plan on perhaps informal, smaller discussions 3 between now and next Friday over the phone or f ace to face
> in smaller groups just to prepare ourselves somewhat better ,
10 for a rriving at conclusions. Sort of use each other as
+
11 sounding boards in smaller groups and then we would be
(' 12 starting from scratch at the next mee ting, out somewhat 13 better prs $ pared. '
M 14 MR. OSTRACH: Sounds like a perfectly sensible l 15 s ugg a s tion.
16 M.1. MILHOLLIN: All right. Is there any further I/ ousiness? .i i
IS (No response.)
19 M.7. MILHOLLIN: The me3 ting is adjourned until next 9 20 wee'c at this time.
21 :llhereupon, at 4:00 p.m., the hearing was recessed, to 22 recorivens on Friday, October 26th,19 79 at 9:00 a.m. )
23 24 26
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