ML20196K467
| ML20196K467 | |
| Person / Time | |
|---|---|
| Issue date: | 02/02/1979 |
| From: | NRC |
| To: | |
| References | |
| NUDOCS 9903260299 | |
| Download: ML20196K467 (213) | |
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CR254 3 1 UNITED STATES OF AMERICA THORPE /
! All 2 NUCLEAR REGULATORY COMMISSION 3
STUDY GROUP ON CONSTRUCTION DURING REVIEW
(, ) 4
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Room 1046 -
7 1717 H Street, N. W.
Washington, D. C.
8 F1iday, 2 February 1979 i
9 9:30 a.m.
10 11 PRESENT:
12 GARY L. MILHOLLIN, Chairman l
("'r 13 JOHN CHO, Member
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14 l PAUL F. COLLINS, Member l 15 JOHN H. FRYE, III, Member )
l 16 1 RICHARD E. IRELAND, Member 17 WILLIAM H. LOVELACE, Member 1
18 i STEPHEN S. OSTRACH, Member i I
WILLIAM PARLER, Member 20 GEORGE SEGE, Member MILLER B. SPANGER, Member 22 t 23 24 Ace-Federal Reporters, Inc. -
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l I EEEEEEES l 2 Page 3 Opening Remarks (Chairman Milhollin). 2
( ) 4 Discussion of Scope of Study 11 5 ]tatements by 11errbers of Public 6 Anthony Roisman, on Behalf of Natural 40 Resources Defense Council l 7 l Ellen Weiss, on Behalf of Union of Concerned 55 8 Scientists ,
9 Marc Messing, on Behalf of Environmental 75 Policy Center 10 i Discussion of Information Gathering 79 11 Discussion of Tasking Items in Secretary's Memo 12 Item 1.A. 109
( Item 1.B. 113 l i
14 i Item 1.C..(Deferred) 15 Item 1.D. 130 16 I Item 1.E. 140 17 Item 1.F. 155 18 Item 1.G. 177 19 Item 1.H. 183 20 Item 2.A. 183 21 Discussion of Items in Mr. Milhollin's Memo 22 Item 1.A. 188
{} 23 Item 1.B. 192 24 IAc Federal Reporters. Inc. .
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_P _R _O _C _E E_ _D _I N_ _G _S l l 2 MR. MILHOLLIN: Ladies and gentlemen, this is the l l
3 first meeting of a group created by the Nuclear Regulatory l g-)w x 4 Commission for the purpose of studying the regulations which -
l 5 permit nuclear power reactors to be constructed while the 6 licenses are under review.
7 These regulations are 10 CFR 2.764, which provides 1
8 that initial decisions by licensing boards become effective l l
9 when issued, notwithstanding an appeal, a.d 2.788, which
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10 contains the requirements for staying a decision pending appeal.
l 11 The CommisdJin ordered this study to be undertaken 12 in an opinion the Commission delivered on January 6, 1978, in rN 13 the Seabrook case.
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14 The Commission set out the objectives of this study 15 in a memorandum from the Secretary of the Commission to Mr. !
i 16 Lee Gossick, the Commission's Executive Director for Operations.!
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l 17 The Group's charter as a Federal Advisory Committee l i
18 was approved by the General Services Administration on January i 19 12, 1979.
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- 20 A notice of this meeting appeared in the Federal
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21 Register on January 18, 1979. The notice listed the reasons 22 for initiating the study and some of the topics which the Study im k_) 23 Group will consider.
24 Today the Group will discuss he data which it will Am Gewal Reporters, Inc.
j 25 gather, and the Group will also begin work on the Group's j l I
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j interim report to the Commission. That report is required to 1 2 be submitted within 60 days from today.
3 The Commission has stated that it desires the
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(_) 4 maximum practical participation by the public in the Group's 9 5
work. For that reason, we indicated in our notice that there 6 will be a limited am'ount of time available at this meeting 7 for members of the public to make oral statements to the l 1
8 Study Group. We will also accept written statements for one I l
9 week after this meeting. The written statements should be j 10 addressed to the Secretary of the Commission, United States l
11 Nuclear Regulatory Commission, Washington, D. C. 20555.
l 12 The Study Group will meet at 9:30 a.m. on the first l
Friday of each month and at other times as necessary. We will j
({} 13 14 give separate notice of any meeting which is not on the first 1
15 Friday of the month. All of our meetings will be open to the l 16 public.
17 A transcript of this meeting and other meetings l ;
1 18 will be prepared. These transcripts, together with the 19 memoranda exchanged between the Group's members and other 20 documents, will be available for inspection at the i 21 Commission's Public Document Room in this building.
22 We will entertain public comments today at the con-L' 23 clusion of the Study Group's discussion. We encourage members 24 of the public to suggest items which should be added to those .
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25 which we have mentioned, or which we will have mentioned in <
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today's meeting. We hope also that you will suggest additional 2
a pproaches to the problems which should be considered.
3 The -Study Group would be especially interested in -
O b 4 having advice from the public concerning the format we should 5
adopt for receiving public views. It might, for example, be 6
appr priate to encourage speakers, members of the public, to 7
present their views in writing before the meeting to allow for 8
questioning of the speakers from the public by members of the 9 Study Group and to allow for rebuttal by persons having opposing 10 views.
jj It might also be appropriate to focus public remarks i 12 on a predetermined agenda of issues for each meeting. For I O ia *** 9 > * "'"*v " "" "i " * ""* '* * **** ' " i **
ja information from the nuclear power industry concerning the 15 relation between :onstruction expenses and licensing decisions. ;
l 16 The Study Group would welcome specific public comment on that j7 informa'cion.
18 The Group will also gather information from NRC j9 records, which the Group must then interpret. The Group would 20 welcome comments on its interpretations of the NRC records.
I 21 I have just read from a prepared agenda, copies of I which should be available to you. Sufficient copies are, I 22 )
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i 23 think, on the table at the back of the room. '
24 At this time I will simply ask that the members Aes-Fed:ral Reporters, Inc.
25 introduce themselves for the record and to the members of the q l
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public. l
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2 I am Gary Milhollin, Chairman of the Study Group. !
3 MR. PARLER: I am William Parler from the Office ,
O v 4 of Executive Legal Director. s 1
5 MR. FRYE: I'm John Frye, legal counsel to the l At mi Safety and Licensing Board panel.
6
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MR. SPANGLER: I'm Miller Spangler. I'm in the 8
Office of Nuclear Reactor Regulation, Division of Site Safety i 9 and Environmenta'. Analysis, the Environmental Technology 10 Office.
)j MR. LOVELACE: I'm Bill Lovelace of the Office of 12 Management Analysis and Program Control.
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- MR. COLLINS: I'm Paul Collins. I'm with the Q' 13 j
)4 Division of Project Management, Office of NRR-15 MR. IRELAND: I'm Richard Ireland, Office of NRR, 16 Division of Systems Safety.
)7 MR. OSTRACH: Steve Ostrach, Office of the General 18 Consel.
39 MR. SEGE: George Sege, Office of Policy Evaluation.
20 MR. CHO: I'm John Cho, and I'm counsel for the 21 ^tomic Safety and Licensing AppeL1 Board.
22 MR. MILHOLLIN: Today I think we should take up 23 the question of how we're going to prepare together the 24 Group's interim report to the Commission. That's the first i Ace-Feder:;t Reporters, Inc.
25 milestone which has been announced on our journey. Our first i
6 1 deadline is 60 days from today. We must be prepared to tell 2 the Commission which issues we plan to take up, and I propose
- 3 that we also tell them what data we plan to gather for the l' ; c 4 purpose of aiding the Commission in resolving the issues which 5 we will present to the Commission and evaluate the recommenda-6 tions we will make to the Commission.
7 I propose to the Group that to the exters possible 8 now we decide, each of us, on the procedures we will follow for 9 gathering the information we need, what steps we think are 10 necessary to gather the information we need, how much time will 11 be required to get the information, and what resources we will 12 call upon the Commission to give us in order to get the infor-O is metion.
I 14 Of course, if we do that, then the Commission can 15 decide whether to approve our interim report or not. If it 16 approves it, then of course it will have agreed that the !
17 resources we ask for should be made available. We can always 18 insist later that they be available. I'd like to throw that 19 out as the first subject for djecussion.
4 20 Just so it's clear, 2 would anticipate that each of 21 us should begin working on our assigned tasks after perhaps we
,__ 22 discuss whether the assignments are okay as now made. After l_] 23
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we discuss whether the assignments are proper and perhaps what I
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issues each assignment should comprehend, each of us sit down '
I 25 and work out a schedule for our own responsibility, more d j
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. .. . -- - . . . - . .. _._-.. .. . - _ . ~ _ . . ~ . . . - __ - - _ -
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l l 3 particularly a schedule for getting information and evaluating I
2 it and identifying the issues to which the information would l 3 be addressed.
4 MR. FRYE: It seems to me that perhaps we have at "
5 the outset an issue which was raised by two or three of the l
6 memoranda that were exchanged, and that has to do with whether 7 perating license proceedings are within the scope of this study.
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9 I personally had read it and it didn't occur to me 10 that they were, but the question has obviously occurred to some ij others that they might be. I wondered whether we ought to as 12 an initial point see if we can't reach some conclusion on that O is a'*"** "-
ja MR. OSTRACH: A somewhat similar point was suggested 15 to me by a person who telephoned me yesterday asking about the I
16 Federal Register notice. They wondered if already operating 37 plants or plants that already had their C.P.'s, for example, 1
18 and were under construction would possibly be encompassed within 39 the purpose referred to for this study, other than as specifically ,
l l 20 addressed in Section 4 ,f the original memorandum, 21 MR. PARLER: A similar question that I have, which 22 really relates to the scope of the study, is with regard to _ _,
23 the item No. 3, " Review of NRC Appellate Administrritive Pro-24 cedures." ;
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25 It isn't entirely clear to me at the outset what the d
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8 f 1 role of this Study Group is supposed to be in that regard in 2 view of the separate study which I understand is goinc on.
3 I have a similar question about Item 6 of the I
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k/ 4 April 5th memorandum from the Secretary to Mr. Gossick, what 5 is supposed to be encompassed under "Other Considerations" and 6 how does that relate to what I understand to be the primary 7 mission of this Group, that is, to examine the immediate 8 effectiveness rule.
9 I note that on the latter point, with r'egard to l 10 Item No. 6, it is my understanding that a number of my 11 colleagues on this Group have raised a similar question.
12 MR. SPANGLbR: I have something that I think is
() 13 perhaps of more fundamental significance. I should say funda-14 m ental in the sense that it covers the way we organize our J
15 information efforts, and it's reflected, of course, in the j I
16 comments that I submitted to you. j 17 However, I would like to additionally point out that 18 the Commission has established a requirement for value impact lll
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19 analyses, not for every kind of action but for certain cate-
- i 20 gories of actions. It would seem to me that this particulcr 21 assignment by the Commission would fall into that category of
~ 22 things requiring a value impact assessment.
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23 Each Division in the Nuclear Regulatory Commission l
. 24 had been asked to spell out specific formats or procedures for i Ace Federal Reporters, Inc.
25 conducting a value impact assessment, but basically the one that J
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the Office of Nuclear Reactor Regulation has adopted is one 2
which requires a delineation of options to proposed actions.
3 That then becomes the focal point of the analysis, the value
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() 4 impact assessment.
5 It seems to me, and maybe I'm wrong, that we have 6
a predisposed philosophy here to focusing on issues. Certainly issues are extremely important, but to me there are two cate-7 g ies f issues. One has to do with poli::y or procedural type 8
9 matte'rs, controversy over those kinds of things, and the other 10 has to do with substantive aspects of public interest impacts, 11 controversy over those matters.
12 I would think, even though issues must be dealt with
(] 13 in full force in our report, Study report, these should be sub-U
.j g ordinated in their structure to the value impact assessment 15 of alternative. l l
16 I think this is one of the first decisions we have '
)7 to make: Are we really bound by the Commission's advocacy of '
18 value impact assessments for this kind of action? Is that the 19 kind of report we're going to be turning out, or is it sort of 20 a review f primarily issues?
21 I think it could be either way. I think this is 22 what we have to decide at a' rather early stage.
- U If we 1 ok at issues, that means a different kind 23 24 of organization of information, the kind of information you l l Ace-Federal Reporters, Inc.
25 seek, than if you are really going to have a value impact c l
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1 1 assessment of alternatives.
2 I don't know whether the audience is aware of the 3l technical interpretation of the word "value impact assessment," l (f ,) -
x' 4 so perhaps I had better briefly describe it.
5 The Commission -- in fact, I think the original 6 memorandum was written by Chairman Anders back in 1976 --
7 referred to this term. The initial thrust of it was primarily 8 toward consideration of safety type ' issues, because in the 9 environmental area the National Environmental Policy Act re-10 quires you to do a cost-benefit analysis of alternatives.
II However, the safety-oriented parts of the organization felt 12 somewhat uncomfortable with the term " cost-benefit analysis,"
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13 because they felt it may be misconstrued as applying basically 14 to monetary type cost-benefit analyses, only dollar type con- .
15 siderations.
I 16 Of course, a NEPA style cost-benefit analysis goes 17 far beyond that, so I don't think their objections to a NEPA 18 style cost-benefit analysis would have required a new term to ;
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l9 ba developed. The new term basically means that the values 20 are the positive or advantageous impacts on public interest, 21 and impacts are viewed as negative types of impacts on the 22 public interest. That is consistent with the NEPA style cost-
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23 benefit analysis of looking at advantageous and adverse impacts 1 I
i 24 of any proposed action and its alternative. i Aa-FerJ Repor ers, lm j
l 25 Well, so much for that explanation of what a value d i
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I impact assessment is. I'll leave it to the Group to wrestle 2 with this fundamental question of what we're up to.
3 MR. MILHOLLIN: Are there other preliminary remarks?
p-b 4 MR. CHO: Yes, Mr. Chairman. It seems to me that 5 we need first to decide what the scope of our Study'ought to 6 be, before we start getting involved in details of what infor-7 mation we need, what assignments ought to be made, and so forth.
l 8 I guess it would help to define our scope by considering some 9 of the questions that have been already raised. l 10 I suggested in my memorandum that perhaps we might II consider, once we decide the scope, whether the Study might 12 be conducted in two phases. I see some of the' issues that are raised in the Commission's memorandum are sort of dependent
() 13 Id on how you come out,in the other issues. -
15 MR. MILHOLLIN: I get the impression from what ,
16 you've said that there is a general sentiment in favor of 17 taking up the issue of what the scope of the Study should be l 18 before committing ourselves on strategies for getting infor-19 mation. -
20 My suggestion that we take up strategies for getting!
21 information at least had the advantage of finding out that you 22 really want to talk about the issues we should consider first.
(m'-) 23 Are we all agreed, then, that we should begin by !
24 I guess by issues I talking about the scope of the Study? i 1
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25 mean what alternatives to the present system the Study should i.
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12 I consider.
2 MR. OSTRACH: I don't believe that's what Miller 3 had in mind when he said " issues." I think -- correct me if
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\- 4 I'm wrong, Miller -- I believe he meant by " issues" the prob-S lems outlined at the beginning of the April 5th memo on 6 predictability of conditions and things like that. What you've 7 just said as issues I think he referred to as options.
8 Wasn't that the essence of your analysis?
9 MR. SPANGLER: Not quite. I think the issues that 10 were outlined -- and I think they were appropriate issues as 11 far as they went -- I think these are reasons for our having 12 the immediate effectiveness rule review group in the first a
() 13 place.
14 But these, if you look at them, they are reflective 15 of public interest but not the full scope of public interest.
16 They may be some of the more controversial points leading to l l
17 why we're in business, and certainly a' balanced review of l
18 public interest would include those things but would go beyond 19 those things that we categorize as issues.
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I 20 I think the alternatives are principally procedural ,
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21 alternatives that we need to take up. We now have' procedural l
I 22 alternatives with regard to the two focal points, the immediate l
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l effectiveness rule and the stay rule, but we also have-- if you 23 i
24 want to evaluate alternatives, one would be to keep these rules (
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25 intact as they are now, another would be to eliminate them, and i
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13 j a third would be to modify them in some way as major options.
2 If y u start evaluating in a forward looking way what the pros and the cons or the adverse or beneficial impacts 3l Il v' 4 on different kinP .)f public interest are of those three cate-5 g ries of options, one then must consider that other things 6
are happening in the way of administrative or legal require-7 ments that may also influence that evaluation of these options.
8 Here I want to introduce one other thing that has 9 been on my mind very much lately, which is the new CEQ regu-10 lations that have been issued and which will take force on 11 July 30th of this year.
12 There is a serious question as to whether one of l
13 these regulations regarding decisionmaking, how an agency ja makes decisions, will actually require an abrogation of the l
15 immediate effectiveness rule, for example. We have several l
16 months to come up with an initial response to that, not just 37 that focus of that particular section of the CEO regulations i
18 but other parts as well which have an interrelationship to 19 the question about decisionmaking.
20 This is going to be going on in parallel with our 21 ef f rts , and I think it has a very important interface. If 1
22 you're interested, I could just read it. It's rather brief, O 23 end 1 cou1d reed the section of the new CEo resu1etione thee 24 applies to this decisionmaking problem. ,
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25 One of .>ur lawyers with whom I talked yesterday l
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j about this problem indicated that she has serious questions 2
about what this means to the immediate effectiveness rule, the 3
continuation of it. ;
4 O 4 MR. OSTRACH: Our ffice h s been king into the .
5 application of the CEQ regulations to the Commission at the 6 Commission's request, and there is cer,ainly a preliminary 1
I 7 question about whether the regulations apply to independent 8
1 regulatory agencies such as the NRC.
i 9 I will certainly tell the people who are working i
i on that to consider additionally the impact of those regula- l 10 ij tions specifically on the immediate effectiveness rule. I l 12 think it would be more profitable if we waited until -- I'll 13 certainly hand over to the Study Group the results of that ja analysis-as soon as they're available, but that is peripheral, I 15 I think, to what we're discussing today, the scope of what 16 we're supposed to be doing. !
l j7 MR. SPANGLER: I don't think this is an appropriate 18 forum to make strong recommendations about that. matter, but I l
l 19 think we need to be aware that things are happening that will 20 b e important to the evaluation, our evaluation of these options i 21 in front of us that we are charged with.
22 Rulemaking, of course, has been mentioned in the !
23 April 5th memo.
24 MR. MILHOLLIN: Could we agree thct Mr. Ostrach will ,
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25 be in charge.of informing the Study Group as to the relation 5
L _
15 1 between our work and that? j 2 MR. OSTRACH: That would be fine.
3 A point that occurred to r.te while you were speaking,
/'N q 5l 4 Miller, is that at least arguably any change in the immediate 5 effectiveness rule, and perhaps even the stay rule, might be 6 held to require an environmental impact analysis, either an 7 assessment or statement. I suppose that that also ought to be 8 a question assigned to me.
9 MR. SPANGLER: That also is an area that's taken 10 up in the new CEO regulations.
11 MR. MILHOLLIN: Nice of you to volunteer for that.
12 MR. OSTRACH: Well, I'll just get ahead of the Army t'
(\) 13 instead of behind it.
14 One other point, while we're on the subject of 15 things that I ought to be looking at, the scope memo, the 16 April 5th scope memo mentions a number of subjects at the end i
17 of Section 6, many of which are potentially the subject of 1 18 licensing reform legislation. I'm one of many people working ,
i 1? on that for the Commission, and I will endeavor to keep the 20 Group informed about the status of licensing reform legislation' )
1 21 and whether anything looks like it will likely happen that will 22 seriously affect our recommendation, in view of the fact that !
C)
~~
25 we have a deadline of November 1st and the Congress doesn't.
I 24 I doubt whether anything will be enacted by then, but it might
- Ace. Federal Reporters, Inc.
25 well be that we will be able to determine a gathering <
1 i
)
k_ _ _
16 1 consensus on a certain point that will remove the need for us 2 to consider it in any detail.
MR. PARLER: Mr. Chairman, even though I would l i
/~h i
3l r N/ 4 agree that there are a number of other things that are c : curring l e 5 which may be relevant and which we should take into considera-6 tion, I don't think that that is unusual for work in areas such 7 as this. There are always other things that are going ca, and 8 I would hope that' these other things that are going on, other 9 issues, would not cloud the fact of what the basic issue as I l
~. .
10 I understand it is before us.
11 For whatever our reasons in 1966, the Commission's 1 1
12 predecessor adopted an immediate effectiveness rule. The
(')
u 13 basic questions in my mind, quite aside from all of these other 14 factors, is, is that a sound rule from a legal standpoint, 15 considering NEPA or what the courts have said about NEPA and 16 perhaps other things? What flexibility do we have? And, in 1
17 exercising whatever flexibility that the Commission has in 18 that regard, what is the soundest approach?
19 I would think that there is considerable analysis 20 on our part within that framework. It might well be that 21 however we come out will be influenced by other events over 22 which we have no control, n
N)
'~
23 MR. SPANGLER: Could I respond to this, because I l 24 think it's very important. l l Ace-Federal Reporters, Inc.
25 I'm aware, and I personally feel this pressure, that <
1
E l 17 1
when one starts introducing complexities -- you know, we think 2
of the limitations of our resources and we have a tendency to 3 shy away from complexities. The problem with shying away from
( 4 complexities at this stage of our deliberations is that we 5
may have'thereby, unwittingly perhaps, avoided serious considera- e 6 tion of things that later would be regarded as procedural gaps 7
and would invalidate some of the recommendations we hope to l make; 8
9 I guess I'm' sort of Lincolnian in my approach to 10 decisionmaking. One should not, I think -- this is my personal 11 p hilosophy that I've adopted -- as desirable as simplification 12 is for any rational body, one should not simplify things before
-() 13 you consider the complexities. It's kind of an initial screen-14 ing process. .
15 And I think Bill correctly pointed to the problem
.16 of things over which we have no control. I.think that is a i
17 serious problem, and maybe that is a good reason for simplifying I 18 things.
19 But when one deals with that kind of a framework 20 in a value impact assessment, one does have options of.how to 21 ,
treat that kind of problem. One is to make scenario assumptions.
1
-22 You could either assume it happens or it won't happen, and 23 that gives you a range of assessment.
~ _ -
24 Let me get back, ipstead of talking about the ,
' Ace Feder::8 Reporten, Inc. --
25 theory of addressing complexities, get back to the basic gut q
, I L . . --
18 l
l 1 issue that I think is in front of us, namely the problem of 2
here we have an immediate effectiveness rule and stay order
~ ~
l 3 procedure. It has not apparently, at 1 east in somebody's mind, c)
U 4 has not served us particularly well in the Seabrook case, and 5 perhaps other cases as well.
6 Now, if there is something bad about this for the 7
public interest, I think the onus is on us to find out why 8
this went. wrong, is it likely to go wrong again, are there 9 other thiags that could happen that might be a better way of 10 1 fixing the problem and changing these rules? I think these l
l 11 are very fundamental questions, and I saw elements of them in 12 the April 5th memo. I don't think this type of inquiry is O i3 f reign t the basic structure that is at least implicit in 14 that memo: Is there a better way of fixing the problem than 15 abrogating the rule or modifying it or some other way?
16 This is where the options come in. I think it's 17 perfectly conceivable that we might as a group tell the 18 Commission, "We've looked at other options and they're too
. . .- L 19 much for us, but we think that they are important,'I and provide 20 preliminary judgments on those matters. That would be the 21 simplification part of addressing the more complex world, which l
22 is really the real world. It isn't our job to invent complexity; 23 it's our job to recognize it and to try to deal with it in an 24 appropriate fashion that will be useful and defensible in terms ,
' Ace-Federd Reporters, Inc.
25 o f the recommendations and conclusions we put in front of the <
l l
19 l
l l
l 1 Commission.
- 2 Well, that's all I wanted to say on that point.
3 MR. MILHOLLIN: The Commission so far has only given
(~% '
4 us one concrete indication of the direction it wants us to go, 5 and that's the memo of April 5th. If our meeting today is 6 going to be concerned with defining the scope of our Study, <
7 it would seem reasonable to start with what the Commission has 8 indicated it wants us to look at. At a minimum we should tell 9 the Commission whether we think we agree with what it has 10 ! proposed, and to the extent we don't agree we should tell it 11 why we don't.
12 John Frye has suggested that the Commission's memo (m
q,) 13 was unclear about whether operating licenses are within the 14 scope of the Study. Steve Ostrach has indicated that we might 15 discuss whether plants now operating are within the scope, and 4 1
l 16 Bill Parler has suggested that some of the items are unclear 17 as to what the Commission's intention is.
18 For purposes of organization, maybe we could start--
19 MR. PARLER: What the Commission's intention is in 20 certain areas. It's quite clear to me what their overall I
21 intention is.
.s '22 MR. MILHOLLIN: Yes, what their specific intention 23 is on Item 6, for example, or Item 3.
24 So I propose that we perhaps could take up John Am-Fearst Reporters, inc.
25 Frye's question first, unless there are objections to that, <
l l
20 1 whether we think that operating licenses are within the scope 2 of the Study.
3 MR. SEGE: Mr. Chairman, I'd lika to offer a comment
,rx
(_) 4 on that subject. -
5 The title of the April 5th memo indicates to me 6 quite clearly that operating licenses were not within the scope _
7 prescribed for the Study Group. The subject is identified as 8 the generic issues of construction during adjudication.
9 That does not mean, in my opinion, that this Group j 10 cannot consider whether the application of the immediate effec-11 tiveness rule to operacing licenses should not also be taken 12 i nto account. I believe that Item 6, which encourages us to
(~)
LJ 13 add any other matters that we view as having an important 14 potential bearing on the issues considered here, that that l
15 providesusahandleforintroducingconsiderationofoperatingl l
15 licenses.
17 My suggestion would be that we now decide that j 18 operating licenses are not within the scope of this Group, but 19 in a few months, after we have gotten into the issues in con- l l
20 nection with construction permits, consider whether our judgments 21 as they are forming should also be tested for applicability to 22 operating licenses, and then look into perhaps one or two (3
\'
23 possible options with our final report. We could add a dis-24 cussion indicating the extent to which, if any, what is said ,
Aa Femi n.ponen, #nc.
l 25 should be applied to operating licenses, or we could recommend j ,
c I
I i
20 t
l 1 whether we think that operating licenses are within the scope 2 of the Study.
3 MR. SEGE: Mr. Chairman, I'd lika to offer a comment
' (~)
w./ 4 on that subject. -
5 i The title of the April 5th memo indicates to me 6 quite clearly that operating licenses were not within the scope ,
C 7 Prescribed for the Study Group. The subject is identified as 8 the generic issues of construction during adjudication, 9 That does not mean, in my opinion, that this Group
/
10 cannot consider whether the application of the immediate effec- <
11 tiveness rule to operating licenses should not also be taken 12 i nto account. I believe that Item 6, which encourages us to f')
w 13 add any other matters that we view as having an important 14 Potential bearing on the issues considered here, that that 15 provides us a handle for introducing consideration of operatingj i
16 licenses.
h 17 My suggestion would be that we now decide that
_ _ _q ja operating licenses are not within the scope of this Group, but I
\ \ 19 in a few months, after we have gotten into the issues in con-
! i 20 nection with construction permits, consider whether our judgments 21 as they are forming should also be tested for applicability to 22 operating licenses, and then look into perhaps one or two
\ /~\
l 'J 23 Possible options with our final report. We could add a dis-l l
.\ l 24 cussion indicating the extent to which, if any, what is said l Ace Federal Reporters, Inc.
25 should be applied to operating licenses, or we could recommend ,
I i
-A- J
20 I 'l
. 1 whether we think that operating licenses are within'the; scope 2 of the Study.
3 MR. SEGE: Mr. Chairman, I'd lika to offer a comment
, 4 on that subject. -
5 i The title of the April 5th memo indicates to me 6 quite clearly that operating licenses were not within the scope ,
Prescribed for the Study Group. The subject is identified as f 7 8 the generic' issues of construction during adjudication.
9 That does not mean, in my opinion, that this Group l
/. I 10 cannot consider whether the application of the immediate effec- !
I 11 tiveness rule to operating licenses should not also be taken )
1 I
12 i nto account. I believe that Item 6, which encourages us to 13 add any other matters that we view as having an important 14 potential bearing on the issues considered here, that that l
15 provides us a handle for introducing consideration of operating 16 licenses.
l My suggestion would be that we now decide that
% 17 d -s 18 operating licenses are not within the scope of this Group, but
'l 0, % 19 in a few months, after we have gotten into the issues in con-i 20 nection with construction permits, consider whether our judgment!s l21 as they are forming should also be tested for applicability to 22 ' operating licenses, and then loox into perhaps one or two a r 23 possible options with our final report. We could add a dis-s
\
24 cussion indicating the extent to which, if any, what is said Ace-Federd Reporters, Inc.
25 should be applied to operating licenses, or we could recommend ,
g N
. . - - - . - - . - . - - . . - - . . . ~ . ~ . . - . . - . - . - . . _ - -
21 4
1 at that time to the Commission that a follow-on study be 2 undertaken with respect to operating licenses. Or, of course, 3 we could elect to do nothing. I would suggest that we defer 4 altogether consideration of operating licenses for a few months
]
l 5 on the basis that the original' charter did not contemplate '
6 inclusion. J i
7 MR. OSTRACH: I agree with George that as far as 8 can be gleaned from the original charter it was not intended to 9 ask the Study Group to cover questions dealing with O.L.'s. j
'10 It refers to construction.
11 The first sentence is concerned about implications 12 of construction. Each of the issues introduced clearly relate (f 13 to construction impacts. It refers specifically to C.P.'s, 14 .and there11s the self-evident fact that the issue first arose i 15 before the Commission, as it shows on the first page, during 16 consideration of the Seabrook construction permit application 17 and it dealt with consideration of impacts on the environment.
18 I think that other than as mentioned in Number 6, 19 dealing with combined C.P.-O.L.'s, the Commission did not spe- ;
20 c ifically ask the Study Group to address the question of O.L. 's.
21 I think that George's suggestjon that only if we 22 find it arising as we go ahead working on C.P.'s do we need
.23 to consider the question of 0.L.'s.
24 MR. PARLER: Only if we find what arising? !
Aco Federd Reporters, Inc.
25 MR. OSTRACH: Only if it becomes clear to us that q l
V . ... .- - - -- ,- . . -- -. --
22 I the problem is a broader one, either that what we suggest or 2
what we see with C.P.'s is also true to some degree with respect i 3 to 0.L.'s or the problem that we see in the construction area 7
() 4 can only be or can helpfully be alleviated by dealing with 1
5 operating licenses.
6 We would need to see some connection. The Commission j 7
has not told us that it sees a connection between the C.P. f 8 question and the O.L. question.
9 MR. PARLER: Well, Mr. Chairman, I would agree with 1
10 w hat the gentlemen have said about the scope of the charter, !
II but it's not as clear to me that the 0.L. issue would be de-l 12 f erred.
O V 13 The immediate effectiveness rule, as I understand 14 it, applies across the board to initial decisions which are 15 issued at the construction permit stage and to initial decisions.
16 which are issued at the operating license stage. It would 17 seem to me that most of the data which is going to be collected 18 would provide the data that we need for our analytical work in I9 connection with the immediate effectiveness rule in its total l 20 application.
l 21 Maybe the recommendations or how the rule should 22 be handled at separate stages would be different, but it isn't
)
p),
q . . _
23 entirely clear to me at the moment that the operating license 24 i
issue should be deferred, unless, of course, that is the '
! Ace-Feder-l Reporters, Inc.
25 Commission's desire.
I
23
~l MR. CHO: Mr. Chairman, I would suggest that we i
2 state in our initial report to the Commission that'we would 3 make it part of our scope of our Study. Maybe it's a ques. ion 4 of semantics of whether you look at the construction stage 5 situation first and then see whether some of the considerations 6 apply to the operating license and whether that is not within 7 the scope. It-seems to me that when you say that you bring 8 the operating license situation into the scope of the Study.
9 Another reason for that, I think that the impact r 10 of the immediate effectiveness rule potentially has much II greater significance in the operating license stage, when the 12 reactor is operating and serious questions are raised. You 1
0 really need to look at that in relation to the rule.
14 MR. FRYE: There is a little difference, I'think,
.15 in the application of the rule in the operating license stage 16 in'that in an operating license proceeding, if there is an 17 operating license proceeding -- of course, there isn't unless 18 someone requeste a hearing and the hearing is granted. If 19 there is a' hearing, the Board's charter is to decide issues ,
I 20 in controversy basically, and the Staff is to make all the other 1
21 necessary findings that may be necessary to the issuance of the 22 operating license. While the Board may sign off on an operating O 23 1icense proceeding at some point, it could be some time after 24 l-
! Ace-Federd Reporters, Inc.
that before a license would actually issue, depending on the 25 status of the Staff's review. So it's a little different
24 l 1 situation from that aspect.-
l 2 EMR. CHO: These are the kind of things that can be 3 crought out in a study, a study report.
r
() 4 MR. MILHOLLIN: I take it we now have no general -
5 consensus on that question.
6 MR. IRELAND: My sentiment would be to try to keep ,
7 the scope of the Study tractable. I foresee that there is 8 going to be an enormous amount of information gathering in-c 9 volved if it gets too wide.
10 I would certa' inly be in favor of confining the 11 Study to C.P.'s initially, and then considering perhaps what 12 impact. changes in the rule might have on 0.L.'s at a later 13 stage and:perhaps do that as Stage 2, after it becomes a little
{
14 b it better defined. ~
15 MR. MILHOLLIN: After we know more about the re-16 lation between construction and licensing?
17 MR. IRELAND: Yes. It's obvious that if you've got ]
l 18 a plant ready to go on line and you've got a problem issuing I 19 a license that there are enormous problems as far as costs 20 are concerned and schedules are concerned. It's an entirely 21 different situation from when you are considering issuance -
'l 22 of the C.P., where construction has hardly started yet.
23 MR. COLLINS: I think this is truc If you look 1 24- at the four or five reasons why the Commission wants us to l Am-FWad Reorwrs, lm.
{
l 25 look at this, they're all involved in how much money and how
25 1 much disruption of schedules and this and that go on after an 2 initial decision while you're in an appeal process.
3 As Dick points out, all of these things could not ;
( )\ 4 be considered under the O.L. They've already happened, the 5 irreversible changes to the site. The buildings are there and 6 ready to go. Almost all of the construction money has been 7 committed. The reasons that prompted the Commission to ask 8 us to make this Study are all foregone now.
9 MR. OSTRACH: I agree with what Bill said, that the !
10 I i mmediate ef fectiveness rule treats both C.P. 's and O.L. 's.
11 The same rule applies to both, and there a e legitimate and~
12 serices issues presented by the immediate effectiveness of 13 0.L. decisions.
{~)
14 I don't think, as I said before, that the 15 Commission asked us to consider those issues. That might have p 16 been because the Commission was dealing with Seabrook, which 17 was a C.P. and not an O.L.
l 18 I would suggest that in the interim report we submit i I
19 we identify these facts, that we point out, as Bill said, that I I
20 the rule also deals with 0.L.'s, the immediate effectiverass I
If it presents serious issues, do you want us to I
21 of 0.L.'s.
22 expand the scope to consider that as well?
23 I don't believe that by deferring data analysis or
(
24 d ata gathering on O.L. 's until we get some feedback frcm the '
l A>Fewal Repriers, inc.
25 j Commission on our initial report would be severely -- I mean, J
26 I we can only do so much at one time. C.P.'s will be quite a 2 bit of work for the next 30 or 60 days. If the Commission gets 3 back to ue and says, "Yes, consider O.L.'s," I think we can v 4 swing into O.L. 's.
5 We should certainly keep our minds open to the 6 interaction between the problems and the potential for creating <
7 impacts at different stages. That's what my suggestion would 8 be, at least, that we address in the interim report.
9 MR. PARLER: Mr. Chairman, I endorse what Steve 10 han said, as long as the question or the issue is brought to H
the attention of the Commission in the interim report or at 12 an early stage.' That would take care of the point I was trying O to rei e trom v temae otae-Id MR..MILHOLLIN: Item 6 is now -- this comes within 15 the ambit of Item 6, does it not? Or not?
10 MR. SEGE: I would think so, but it's such a sig-17 nificant scope item that I certainly agree with Steve that !
18 it would be very appropriate to raise it in our interim report 19 to the Commission for guidance on this subject.
20 MR. MILHOLLIN: I didn't intend to indicate any 21 disagreement with what seems to be a general agreement. I was 22 certainly stepping in a direction I expected to step in, that O- 23 is, to find someone who will agree to draft what we present Aes-Federal Reporters, Inc.
in an interim report on this. '
2 MR. OSTRACH: I think that Mr. Parler and I have <
l u .
27 j volunteered by speaking the longest on the subject.
2 MR. MILHOLLIN: All right.
3 MR. OSTRACH: Shall we work on that section of the 4
interim report?
5 MR. PARLER: Which section? Just on operating 6
licenses, or on Number 67 7
MR. OSTRACH: No, just the section on operating .
1 g licenses.
9 MR. PARLER: Certainly. j l
i 10 MR. MILHOLLIN: Basically what we've just agreed 11 upon as our strategy for dealing with that issue in the 12 interim report.
f . (~ 13 Okay, so we have a couple of voluriteers on that l ja issue.
15 MR. CHO: I might just make a suggestion. Rather 16 than raising it as an issue with the Commission, I wonder if 17 we might do a little more. If we think, if these two gentlemen 18 think as they prepare their statement -- if they see signifi-19 cant issues that need to be discussed, that we state to the 20 Commission that unless the Commission feels otherwise we will 21 g ahead and consider the operating license situation once we 22 get our study fairly firm, study results fairly firm on the 23 construction permit side.
l 24 MR. PARLER: That wouldn't neces arily be the way i
- Ace Federal Reporters, Inc.
25 that I would suggest that we proceed. I would suggest, without q l
28 3
trying to reach agreement now, that the issues be laid out, 2 but not tell them that we're going to go ahead without any 3
further direction. Tell them that we'll wait for direction j 4
from them. That would be my suggestion.
5 MR.'OSTRACH: The interim report will be presented 6 at a Commission meeting, and that gives us an opportunity to 7
directly get feedback. We'll be right there. We'll be able l
8 to look at them. There won't be any delay imposed by the fact' 7 9 that we don't give them a negative check-off on our proceedings.
10 MR. MILHOLLIN: Of course, if they say yes, it's 1 11 likely that you'll be assigned the job of exploring the rami-12 fications of it.
13 MR. OSTRACR: My back, Mr. Chairman.. I've hurt j4 my back. I can't do it.
15 MR. PARLER: I think the ramifications are ultimately l l
16 going to have to be explored in any event, because otherwise '
17 we would be left with a situation in which we would have an 18 immediate effectiveness rule which is now all-encompassing, j9 perhaps modified so that it only applies to a certain area.
20 Without any explanation for the difference in treat-l 2i mene r it would seem to me there would be a lot of gestions 22 raised that somebody would have.to answer.
23 MR. MILHOLLIN: Very well, we've agreed on that.
24 The second thing I've noted here, which has been i Ace-Federd Reporters, Irtc.
25 pr pored by a member of the Group for discussion this morning, e
.. _ _ . _ . _ . _ _ _ . _ . _ . _ _ _ _ . . _ . m_.. . _
29 3 is the question of whether plants now operating should be 2
within the sc, ope of our work.
)
3 Since Mr. Ostrach brought it up, perhaps Mr.
4 Ostrach would like to elaborate on it.
MR. OSTRACH: The question was presented-to me,by 5 )
3 a representative of Consumers Power, who is building the .
l 7
Midland reactor and bas been building it since we were all l 1
mu h y nger p rsuant to a construction permit.
8 j 9 He called up and wanted to know would the findings 10 f the study have essentially a rectroactive effect. It wasn't
- 3) just on operating licenses. I think it was on proceedings 12 which have been terminated. I O 'a * "*" '"** ' " " ^ "'*"*"' ' '"* " "" "'
y tentative opinion-- at least I expressed it over the telephone--
15 that it was more than likely not, since Section 5.B. of the 16 study, referring to "grandfathering," when it refers to 37 exempting specified ongoing proceedings, my assumption was 18 nstruction permit proceedings that had not yet reached the j9 decision s, age, the theory being that perhaps an applicant had 20 made certain commitments on the assumption that he was going g to get a C.P. decision in six months which would be effective, g and I did not think that that had any application to ongoing 23 construction pursuant to a C.P. issued back in 1974. But it 24 is a legitimate question for discussion by the Group. I Aes-Federd Reporters, Inc.
25 MR. MILHOLLIN: In one of the memos someone proposed I
30
{
j that we postpone committing ourselves on that, or even taking i
2 it up, until we find out more about the sequence of decision-3 making by applicants.
4 MR. CHO: It seems to me, though, that is an issue <
5 that we ought to look at as part of our Study, should whatever l
6 rule change that comes out be applied retroactively and to 7
what extent. This is not making any commitment, but I think 4
l g it is a valid question.
i
]
9 MR. FRYE: The Midland case, I think, precents a
) 10 good case to consider in that regard, because that C.P., while 11 it's issued, is still an issue remaining to be decided by a 1
12 Licensing Board; and that issue then, of course, could go O 13 through the appellate process. So it's still open to that V
, ja degree.
15 MR. OSTRACH: Over four yesrs after the issuance 16 of the C.P.
j7 MR. MILHOLLIN: There was a suggestion in one of I 18 the memos that this be deferred. How do you feel about that?
j9 Not that it be left unaddressed, but that for the time being s.
20 it be deferred.
21 MR. PARLER: What is the precise issue? Whether 22 the question of retroactivity of any change be considered?
O 22 MR. .->tHOtt1N To whee extene shou 1d we recommend, 24 if we recommend a change, to what extent should the change ,
Ace Federd Reporters, f v.
25 affect existing plants, or I guess more generally what shoula
31 j be the effective date of our change in the effectiveness rule.
2 MR. PARLER: I don't think the issue can be properly 3
ignored. If you change the policy that's in regulations or 3
if you change the law and you have a process in which various 5
Proceedings are at various stages, it seems to me that the 6
question of the effective date of the change and whether or 7
not the change will have retroactive effect should be con-8 sidered.
9 MR. COLLINS: That will be part of our recommenda-10 I tion, won't it?
11 MR. PARLER: I would think so.
12 MR. MILHOLLIN: And would have to be part of any 13 rule change. Any' rule change would have to indicate what its ja effective date was.
15 MR. OSTRACH: Again I agree with Bill. I don't 16 think it's really a scope question that we need to ask the i
j7 Commission. I think inherent in their charge to us to come l 18 up with alternatives, including potentially a change.in the 19 rule, is a mandate to give a recommendation as.to how that l l
20 rule change will affect people in various stages of the thing.
21 The mode of analysis is not unknown. We will know 22 how to go about addressing the issue, so I think we should just O 23 defer thet unei1 we know whether we're eoine to eroeose enz 24 changes and, if so, how those changes should apply to various ,
Aos-Federal Reporters, Inc.
25 processes, j
32 3
MR. CHO: I do think, though, it's important enough 2
that we need to identify it for the Commission, at least let 3
the Commission know that we will be looking into this question.
O , MR. M tHOtt N: Oker. -
5 MR. SEGE: That is in the sco'pe statement as Item 6
5.B. It's already in there.
7 MR. CHO: It's here, yes.
8 MR. MILHOLLIN: Does the person to whom that is assigned wish to comment? Is that yours, George?
9 10 MR. SEGE: N d er 5? No.
11 MR. COLLINS: No, that was DPM's assignment, and 12 I'm really not sure why DPM was given primary assignment on that .
O '3 ""* " "'" "' " " ^ "* " "* "* " '""*-
ja MR. OSTRACH: . The thinking was that DPM might have 15 the best chart available for who was where on the process.
16 For example, are there ten licenses that are two months away l j7 from getting C.P.'s, or is there really nobody who is par-18 ticularly close to a C.P.? I would guess that might have been l
39 the thinking behind it. j 20 MR. CHO: Mr. Chairman, I wonder if we might hold 21 ff questions of assignment at this point until we decide what 22 the scope of the study is going to be.
23 MR. MILHOLLIN: Very well.
I 24 MR. CHO: And whether we're going to take it in one i Ace Federal Reporters, Inc.
25 stage or two stages. Then it seems to me assignments would be j l l l 1 I
33 j more meaningful.
2 MR. MILHOLLIN: All right. So we've agreed that 3 the "grar.1 fathering" question should be deferred for the time 4 being until we decide what changes we're going to propose, 5 and then we'll look at the implications of the change?
6 MR. SEGE: Mr. Chairman, I would add to that that 7 in considering_ changes themselves, as we develop possible 8 changes, in the course of that we take into account the pos-
~
9 sibility of retroactive or nonretroactive applications.
I 10 MR. MILHOLLIN: Yes.
l 11 MR. SEGE: When we actually come up with something, 12 the decision would, of course, have to follow after we have !
(] 13 decided what if anything we want to change. But in the'mean- I 14 time the deliberations in developing the change could focus I
- l 15 on the retroactivity question enough that that d'ecision would 16 then come easily.
l 17 MR. MILHOLLIN: The next item, which has been pro- l 18 posed by a member this morning, is the question of our relation-19 ship to the study the General Counsel's Office is doing on 20 the Appeal Board. This is Mr. Parler's' point.
21 MR. OSTRACH: I have some information on the General l 22 Counsel's study of the Appeal Board since I've been asked to 23 do it. My understanding of the relationship between our study 24 and that study is that this Study Group is not asked to con-Ace-Feder:f Reporters, Inc.
- 25 sider as an option changing the appellate structure of the j l
34 i
1 Commission.
2 In other words, basically it is not necessary for 3 the Study Group to consider whether the Appeal Board should be
) 4 abolished or whether the matter should go directly from the 5 Li 'ensing Board to .the Commission rather than going through !
l 6 the Appeal Board. )
i 7 My impression -- and certainly if the Group feels 8 the clarification is necessary something could appropriately 9 be mentioned in the interim report -- my impression is that 1
l 10 we are to operate under the assumption that there will be i
11 review, there will be review 'yba body competent to make !
12 decisions on stay questions and matters like that, that there j "N 13 may possibly be two layers of review but only if the matter (G ~
14 becomes crucially relevant to a particular Study Group recom-mendation or consideration does it need to be probed in any__
15 16 depth. -
17 MR. PARLER: I gather from what you have said, then, 18 that the Item 3 in the Secretary's memo of April 5th is still 19 clearly within this Group's charter?
20 MR. OSTRACH: Yes, except that they would -- yes.
21 MR. PARLER: .In answering the questions such as
(,
22 whether the rules on interlocutory appeals should be changed,
\- 23 what assumptions is this Group supposed to make? That there 24 will be one layer of review, two layers of review, or what? '
- Ace-Federal Reporters, Inc.
25 MR. OSTRACH: That there will be at least one layer I
35 1 of review. As I said, if it becomes relevant to a specific 2 problem of concern to the Group, I guess the Group could make 3 either-alternative analysis or the Group could simply assume
) 4 that the existing state of affairs will continue. .
5 Again, if the Group" feelsthe need for clarification,
~ ~ ~ - - - - - .
6 I'm sure it can be brought up in the interim report. The OGC 7
study of the appellate process will not be completed until-8 late spring or early summer, I believe. By conclusion I just 9 mean preparation of the final report for the Commission. What 10 the Commission does about it will take longer.
11 So I think that in the near term at least we're 12 dealing with reality-and Alan Rosenthal and his brothers and the Commission.
Q 13 14 If alternative analysis seems to indicate a dif-15 ference -- if, for example, we feel that interlocutory appeals 16 make a lot of sense if there is only one layer of review but l'7 do not make any sense if there are two layers of review, or 18 would be substantially less advisable, I think that we would 19 not be conflicting with the Commission's direction if we said 20 that, if we said we know there is an OGC study going on, if 21 as a result of that you should change from two layers to one, 22 then we think that interlocutory appeals should be encouraged.
23 MR. PARLER: In addition, it seems to me tha9 there 24 .may well be areas in which there may be duplication of effort ,
Aco-Federal Reporters, Inc.
25 sin the study that you referred to as well as this study. e
36 j For example, Item 3.C. asks should the Commission 2 more actively monitor ongoing board proceedings to help assure 3 early resolution of issues. I do not know, but it would just (h 4 seem that that is the kind of thing that, if the organizational <
5 appellate structure is being examined, that would be focused 6 on, at least to some extent.
7 MR. OSTRACH: That definitely is one of.the subjects 8
that is being examined. ~ But, as I mentioned,.I'm on both 9 groups, except the second group is one person, and I think 10 that I ought to be able to minimize duplication of effort by 11 simply communicating to this Group what has been done and what 12 is being done by me in my other role. ,
MR. MILHOLLIN: We're supposed to assume, then, that
(]) 13 14 there will be some effective means of review?
15 MR. OSTRACH : Yes, at least one level or review.
16 I don't think anyone has contemplated abolishing or combining 17 the Commission with the licensing and appeal boards.
18 MR. PARLER: By one le.ve1~o f ~ review, do you mean
^
19 that that might just be by the Commissioners?
20 MR. OSTRACH: Yes.
gj MR. PARLER: I see.
22 MR. OSTRACH: It might be just by the Commissioners.
23 MR. MILHOLLIN: Or that whatever review procedures 24 there will be we can assume will be adequate for review, what- i Ace Federal Reporters, Inc.
25 ever that is. ,
I e
37 1 MR. OSTRACH: Yes.
(
2 MR. MILHOLLIN: Okay.
3 MR. CHO: I suggest that we note this problem in I
- 4 our interim report to the Commission, the problem of inter-5 relationship of this study with the other, and perhaps the 6 Commission might be able to give us guidance.
7 MR. SEGE: Mr. Chairman, if I may add one thought 8 to this. 'We may need an operating assumption on .this. question 9 of the interaction between the two studies, and where we do 10 need such an operating assumption.my suggestion would be that l
11 we assume that nothing will change. Then we will have a final 12 report of the other study and possibly even a Commission 13 decision concerning the other study some months before our 14 study is completa. At that point we can go back and see what,
- 15 if anything, we need to do differently as a result of the out- l I
16 come of the other study. I 1
17 That will avoid the' tremendous complexity of test-18 ing everything-that we do against a series of possible outcomes 19 of the other study.
20 MR. OSTRACH: I agree with George. That sounds I 21 like a sound way of guiding ourselves, unless the. Commission 22 should direct differently in response to the interim report. !
23 MR. MILHOLLIN: Do we'a11 agree?
' 24 MR. FRYE: I would agree, j Aas.Federd Reporters, Inc.
l 25 ML. PARLER: I would~ agree'.
38 j MR. MILHOLLIN: .We can just tell the Commis on l
2 that in our interim report.
! 3 MR. SEGE: Right, and if there is any problem with l /7 V 4 it I'm sure they'll let us know. "
5 MR. MILHOLLIN: We've already discussed the value 6 impact assessment, so I suppose we've exhausted the preliminary l 7 remarks concerning issues we might take up about the' scope of the study. What is your pleasure?
8 9
MR. SEGE: May I make a comment about the value 10 i.mpact assessment? It seems to me that what we're doing is 11 in effect that if we change nothing in the way that the i 12 Secretary's memo prescribes what we should do the results l 13 intended by value impact analysis will have been achieved, i ja because we will in fact be looking at what good possible l 15 changes will do and what harm possible changes will do and 16 comparing them.
j7 I do not believe that a stylized value impact analysip ;
jg of the sort that is customarily done in many NRC studies would j9 be particularly useful. Quite frankly, I've not seen any of 20 these formal value impact analyses that I would hold up as a 21 gl ri us example of a really good one that we should imitate.
e 22 I would think that if we just concentrate on doing k 23 well what the Secretary's memo says we will have achieved the 24 Purposes that Miller I would think had in mind in his value l Ace 4ederal Reporters, Inc.
25 impact analysis suggestion. e
\
r-39
- j MR. PARLER
- Are you preparing, Mr. Chairman, to 2
move away from the questions about the scope now?
3 MR. M M OGIN: No, I had a couple of things in my 4
mind. One was that we could then turn our attention to the 5
scope items which are in the memo and discuss whether we think 6 we agree with all of them or not or whether we think they should 7
perhaps be rephrased or considered in a certain order.
8 The other thing on my mind was that perhaps we should 9 depart from my earlier announcement about gccting public 10 statements. It could be that some members of the public would 11 like to make their statements now. If there is no objection, 12 I would propose that we now enter.:ain public remarks rather
,73 than wa#.t until lunchtime and force the public remarks to cut
<) 13 ja into everyone's nourishment.
15 MR. OSTRACH: Also force the public to sit there j 16 any longer than they might wish.
j7 MR. MILHOLLIN: Yes, that's true.
18 Would any member of the public now like to make a 19 remark?
i 20 Yes, Mr. Roisman. l 21 MR. ROISMAN: Could I make it sitting here?
22 MR. MILHOLLIN: Mr. Roicman, you may make your !
l O'L/ 23 remarks from whatever position you choose.
24 MR. ROISMAN: Fine. ,
( Ace Federd Reporters, Inc.
25 c I
.-_~ -. - . .-__ . _ _ . . - - . . . - ~~ _ - - . - . - - . - . - - - - .. .. - _ ---
i.
l 40 l
l I xxx 1 STATEMENT OF ANTHONY Z. ROISMAN, ESQ., ON l 3
2 BEHALF OF THE NATURAL RESOURCES DEFENSE COLNCIL.
3 MR. ROISMAN: My name is Anthony Roisman, a.1d I'm
( ) 4 a staff attorney with the Natural Resources Defence Counc.4..
5 In an earlier incarnation I was one of the attorneys in the 6 Seabrook case, and since that was the trigger for this study 7 I thought I would very briefly give you some perception.
8 To begin with, I think it is very important that 9 this Group get the facts first and decide on the issues second.i 10 I feel that many of you who have not been involved as part~ of Il your normal work in the licensing of a nuclear plant, much l
12 {
less in the licensing of the Seabrook plant, will come to the j
() 13 study with certain preconceptions, which may or may not be 14 accurate and may or may not be the ones that you would have 15 once you have all the facts in mind. To the extent that you 16 are now using your pre-existing knowledge as a basis for making 17 virtually any decision about the scope of the study, the issues, l
18 whether you think you do or do not want- to do a value impact I 19 statement, what the interrelationship of this is with other '
20 studies that are ongoing, I think you may find that you will I 21 lock you e317es into positions and that your focus ought to 22 be to look at the things that the Commission outlined, use lO i -
23 your fertile imaginations to say whether you have all the facts l
l 24 Anvueo pwonen.sm.
that you would like to have in your possession to try to '
25 adequately address those questions, and then go out and get all
. 41
'l
'those facts. Then come back, after you have all those facts 2
in hand and have all had a chance to look at them, and make 3
~g an evaluation of what issues does this seem to trigger, what s_/ 4 problems do you now see about things that'are going on in ,
5 other parts of the Commission that don't seem to be covered 6
and what things you want to say to the Commission in an 7'
interim report about the problems that they are presenting in 8
this study now that you have gotten your hands on the facts.
I think that a lot of the facts are' facts that were 10 also not available to the Commissioners, so that the memorandum t
of April 5th that sort of triggered the beginning of the study ~ ~ ~ ~ ~ ~ ~ ^ '
- y - - . - . - - - - - - -
does not necessarily reflect a complete knowledge.
I don't want to mislead you. I'm not suggesting i
that I have it and if you just listen to me you'll hear it all.
15 I, too, need the benefit of all that study, and I'm delighted ,
16 that the study is going to take place. 3ut I think that is
-17 the. horse of this cart-and-horse arrangement.
18 secondly, with respect to the question of public i
'i 19 participation, I note with a great deal of delight that public 20 participation is something that you're putting a lot of emphasis 21 on. I have a few suggestions of ways in which it may be im- l
' 22 proved.
23 One is that all communications which any of you 24 e
- Am-Federal Reporters, Inc. receive from anyone not in the context of these formal meetings 25 <
42 i l
j be put on the public record so that everyone knows what infor-2 mati n y u are getting in the form of an outside contact.
1 3, If it were a strict ex parte rule concept, I think l
()
D t '
ja yourselves should be laid on the public record. I gather that 15 each of you wrote a memorandum before this meeting as to the l
16 things you thought should be discussed here. For all of us 17 to have made a useful input to you in writing or orally, it i 18 would be helpful to know what those things are.
39 Third, I think that the mechanisms for holding the 20 meetings should take into account, as I think you've just done, 21 the limitations at least on some of the public participants.
22 Few of us will have the ability in terms of resources to stay K') 23 throughout the whole meeting, and we may need to go and read 24 the transcripts at a subsequent time rather than to stay and i Ace Federal Reporters, Inc.
25 monitor it directly. I hope that you will continue to be c
. ____.._._.__.__...______.-_.__.-_.m___. _._m _ _ _ . _ _
43 i
3 sensitive to that kind of problem, even if you are not prepared 2 to do what of course you know I'd like you to do, which is to 3 provide some financial assistance so that we can study with 4
you the problem. That I assume is the subject of yet another 5 study that the Commission is doing.
6 MR. OSTRACH: Excuse me for a moment, Tony. May I interrupt?
7 I
8 Mr. Chairman, Tony has raised a legitimate point.
9 Althought it might be very close to clear, I do not think that 10 it would be improper for us to add to the interim report at 11 least a mention of the fact that intervenor groups have 12 requested a'ssistance to participate in the study and that we O '3 * " * "**"*** *"* ""*""* "'" S"***" * " *""*-
14 I know the Commission has in the past not furnished 1
15 such assistance, but it did say in GESMO that it was prepared 16 to consider applications for that financial assistance. We 17 should perhaps ventilate it at least in the interim report. l 18 MR. ROISMAN: I think there are a variety of-j9 mechanisms that that might take. For instance, in the 1 20 Commission's study of the state role in licensing the Center {
21 for Natural Areas in New England was retained as a consultant 22 for the purpose of giving the Commission some input on one 23 particular_ area.
24 Now, the Center for Natural Areas is arguably not ,
Aes-Federal Reporters, Inc.
25 your traditional type of Booz-Allen consultant group, and to q I
l
.. _ _ . _ . _ _ . - . . _ _ . , _ . _ _ _ . _ _ . . _ . _ _ _ _ . - _ ~ . . - ~ . _ _
44 :
i I
I some extent it may be argued that that was funding of at least
'2 a perspective, someone coming from a more public perspective 3 than a private consulting firm. So one way in which you might
! ,O .
4 do that is to consider going to various groups who have !
l l- ,
5 special knowledge'of subjects you want to hear about and ask j l l 6 them t'o give you that input, rather than the more traditional-
'7 type of citizen funding, which is you say to someone, "I'll give l i
l 8 you the money for you to tell me whatever you want to tell me." l 9 Here you might say to them, "I'll give you the money to do
, 4 10 a study in this' area because I think your perspective on the l
i .
'II subject might be better'than the perspective of someone who
\
12 doesn't see it as well." I i l O i3 one obvious thing wou1d be what de e11 the geop1e 14 who.are involved in licensing of nuclear plants from the 15 public side, what do they think about the issues that are being 16 presented by this study? What are their personal experiences?
17 What have they seen in. licensing proceedings? What are their 18 suggestions?
I9 That might be hard for you to get if you have to 20 depend upon all those people being able to come forward and 21 'tell you. But if you hire somebody to go out and get that 22 i
information from them and bring it to you, that might be more )
r0 .
23 useful.
I 24 Next, since you are looking at issues, I will
[ Aes. Federal Reporters, Inc, i 25 d assume that I can violate my own suggestion that you go.to I
i
i 45 l
j facts first and then issues and at least suggest a few that l
2 occur to me.
One, you've already mentioned the question of ,
- n. 3l b 4 interlocutory appeals. I think it's very important, even if 5
the study that Steve's doing is going to look at the same 6
question, that you consider if there were a much freer rule 7
on interlocutory appeals, how much of the problems created by 8 the immediate effectiveness rule would be reduced as a result 9
of having that route opened up for the review of some of the 10 tough issues.
11 I can certainly say in the context of Seabrook that 12 we had issues stretched out over a year and a half, many of h 13 which did not get reviewed until a year and a half after the 14 construction permit had been issued. There is no doubt that 15 the system would have functioned better if some of those i i 16 reviews had occurred while from our perspective the mistakes j i
i !
j7 were being made by the Licensing Board. '
)
18 And I think if you look at that you will see that 19 traditionally the way the Appeal Board and the Commission have l
l 20 treated interlocutory appeals is that only the Applicant, or l 21 occasionally the staff, ever has enough at stake under the 22 existing perceptions to warrant an interlocutory appeal. Only (D
23 they are able to argue that if a certain issue is allowed into 24 a proceeding some massive delay may occur which could hold up i Ace Federd Reporters, Inc.
25 the ultimate construction permit decision and that is a e
l l
l 46 1 j disadvantage.
2 The Intervenor group is usually arguing for the 3
inclusion of an issue. When an issue is excluded or evidence 4 is ex'cluded or a line of c c:,s-examination is excluded, 5 they're always faced with not being able to prove in the eyes 6 f the Appeal Board that they have any irreparable injury that 7
will occur to them. It's always said, "You have your crack 8
when the decision is finally rendered to have it overturned."
9 If you look particularly at the beginnings of 10 ALAB-422, the main decision in Seabrook, you will see the 11 Appeal Board exercised its discretion to in effeet make the 12 Licensing Board ~ fact-finding, because it felt that while it O is " " * " '"" ' ""'" "***"*** * '"* 'i *""*"S " "r* ' " ***
ja failure to articulate the bases for its decisions, the state 15 of the Seabrook case at that point, having already once been !
16 stayed, and the general concern that the plant was being held 17 up the process warranted the Appeal Board in going ahead and 18 substituting for the Licensing Board on deciding factual issues.
19 The result was the level of review was eliminated 20 for citizen groups, and we saw only from the Appeal Board for l
21 the first time any rational basis for findings in a whole 22 variety of areas.
l That's an example of how the absence of the inter-23 )
( 24 locutory review route made it difficult for us to prevail Am Federal Reporters, Inc.
25 subsequently on the issue in a meaningful way. We won the q
47 i
l battle and lost the war. The Licensing Board decision was 3
2 f und grossly deficient, but nothing useful occurred as a i
result of that. All we got was the better brains of the 3
O 4
^eeee1 soera eiv1=e u the eme re 1e euet ese ticemeime -
Board had given us. We wanted those better brains reviewing 5
6 the Licensing Board, not coming to a conclusion which was l
consistent with it, 7
f Secondly, there is a question under the Commission's 9
a:isting practice of the order in which decisions are reached. l 10 The current practice is environmental review first, safety 11 review second. It seems to me that there are a growing. number l
12 f cases in which there is an overlap between the issues '
l 13 inv lved in the safety review and the i s in olved in the j4 environmental review. That seems to be particularly true in 1
15 regard to unresolved safety problems. l l
16 It is my belief, based upon conversations with other
~
j7 groups, that the next generation of interventions are more t 18 likely t be focused on unresolved safety issues within the 39 safety area than virtually any other question. The resolution 20 of that question can affect substantially the Environmental 21 Impact Statement. For instance, costs, depending upon what l
22 the fix is; delay, depending upon whether it is determined 23 that the unresolved question is one that will have to wait y for the operating license to be resolved, and then the pos-Ace-Federal Reporters, Inc.
I 25 sibility that it won't be resolved at the operating license
48
)
stage and there will be some further delay, therefore impact-2 ing n will this plant be able to come on line in time to meet 3
a certain need.
4 That all comes into the question of the immediate 5 effectiveness rule, because each of those decisions, when they 1
6 me down, become subject to the immediate effectiveness rule. l 7
One thought is to try to put first in the reviewing process 8
those issues which are most likely to be controvereial.
9 I would think that they would rank this way: un-10 i resolved safety issues first; site specific issues second, 11 that is, safety-related site specific issues; NEPA, which you 12 can now do, I think, intelligently if you have made your safety O site specific decisions and your unresolved safety d'ecisions --
V 13
, ja NEPA third; and then the remainder of the safety issues last.
15 Next, the extent to which an applicant uses the 16 preliminary design route in making a construction permit appli- )
j7 cation seems to me to affect -- to have an implication for the j 18 immediate effectiveness rule.
19 If the construction permit is essentially a con-20 struction approval to build something which falls within a wide range of possibilities and there are not a lot of details 2) 22 because the applicant has used a preliminary design rather 23 than a standardized final design, that increases the reasonable-24 ness of eliminating the immediate effectiveness rule. What Ace Federal Reporters, Inc.
25 you have done in that case is transfer to post-licensing a lot
m 1
49 j of the issues, the resolution of which most people would think l should have been resolved before licensing.
2 3
MR. MILHOLLIN: Excuse me. Could I ask you a 1
-n l (_j question? J 4
MR. ROISMAN: yes.
3 !
6 MR. MILHOLLIN: Do you think this will be -- this
-l l
practice will increase? l 7
8 MR. ROISMAN: You mean the use of more preli ninary .)
l 9
designs rather than final designs? Well, that depends upon 1 i
10 1 where the utilities feel standardization is going. I guess
~'
ij the more they become enamored with standardization r the more 12 they feel that the Staff will give them a good break on
,f % 13 standardiza' tion, the more they will use it, unless standardi-g ja zation becomes the standardization of a preliminary design, 15 which then merely formalizes the current process of having 16 standardized plant designs simply be more preliminary designs 37 rather than final designs.
'18 What I'm talking about in terms of design is really j9 the specific design criteria by which the plant is licensed, 20 not the specific piece of equipment which is being proffered 21 as.the solution to the design criteria.
L 22 We now do not get those ~ specific design criteria, l
() 23 r in many areas we don't, and that sort of relates to this l
24 other question about the resolution of issues by the Regulatory ,
l Ace-Feeral Reporters, Inc.
25 Staff subsequent to the licensing decision.
l l i
_. ._ _ _ . _ . . ____ ._. _._______.._...._..m - ~ .__
50 l MR. MILHOLLIN: That was the reason for my que'stion. l 1
I wanted to ask.you whether you thought we should consider what it means to get a construction permit or a limited work authorization.
1 MR. ROISMAN: Yes, I think you should, because I 5
think you could come to different results and the equities j 6
4 would appear.to be different in a case where an applicant had j l i managed to obtain from the Commission's Licensing Board a determination that was a truly final determination that the 9
10 design of this plant is safe and moving all the way back to 3j a preliminary determination that the design is safe and a lot of work for the Staff to be doing before certain things can g
O '3 There are two different levels. In one case it seems to me immediate effectiveness seems at least fairer, i g
if it is fair at all, in the case where the licensee has had 16 to go through all of the hoops and everybody is satisfied that this construction, at the 1 censing Board Leve1, this 39 construction permit looks pretty good and they know what's 9 "9 * *
'20 i g
Where the applicant on the other hand has sort of g
.ept k its cards to itself and it and the Staff would be working O- ,
e 1oe of these issues efter the conseruceion permie, 1e eeeme g to me that the claim to immediate effectiveness to the extent ,
Am Feder:;l Reporters, Inc.
C
51
- Some knowledge about how much of that really goes 2 on and how necessary it is that it go on I think would be one 3 of those helpful things to examine.
(/ 4 MR. MILHOLLIN: Let me ask you still another ques-5 tion. If we find that there is a great variation among 6
applications on this point, would that indicate that we maybe 7
should do this through stay standards rather than immediate 8
effectiveness, changing it across the board? Perhaps that's 9
too detailed a question.
10 MR. ROISMAN: No, I understand the question.
11 MR. MILHOLLIN: What I'm suggesting is making 12 effectiveness depend on the particular application rather than 13 having a general rule.
ja MR. ROISMAN: Well, I must say my own limited 15 thinking on the ultimate question that this Study Group is 16 looking at has -- I have assumed that the real question is a 17 burden of proof question, that now the burden is on someone 18 who doesn't want the licensing to go ahead to prove through 19 the stay regulations that there are special reasons why it 20 shouldn't, and that the results of this Study Group I think 21 could end up with is that the burden shift the other way, 22 that the license is not immediately effective until at least O) 5 v
23 the first level of review has been completed, absent a shoking[
24 of the same kind of needs that are now needed to be shown the ;
Ace.Feder'J Reporters, Inc.
25 other way. c
, 52
) In that case it does not become a complete abrogation across the board. It allows for the sort of case-2 3 by-case presentation that you're suggesting.
4 Of course, in doing that you would want to give
- 5 some guidance that'might not necessarily be the Federal court 6
guidance'on when you grant this kind of relief. You might ,
7 want to list a different. group of factors and say, "These are 8
the factors that should be considered."
9 Now, as you know, the stay or the dissolution of 10 the stay are governed completely by what's-done in the Federal
)j court system, and that may not fit the mold that the Nuclear 12 Regulatory Commission has at all.
O is ""- "^ "' " " " " ' " " ' " ' "
ja suggesting, then, that one of the elements in determining . 1 15 whether a C.P. should be immediately effective or not, i
16 whether in terms of a stay of construction or a grant of j7 construction-- perhaps some burden of proof is allocated --
18 is the extent to which the design has.been finalized and 39 approved?
20 There are not polar extremes, are there, of pre-21 liminary designs and finalized designs? There is sort of a 22 continuim of how fine the details.
.pv 23 MR. ROISMAN: Yes, that's right, d$'O more or less 24 in different plants, i A .F.ow e n portws,-inc.
25 MR. OSTRACH: And you're-suggesting that that would c l
{
53
) certainly be relevant in terms of whether they go out digging 2 up the ground, either they've got blueprints or they've got 3
a real design.
4 MR ROISMAN: Yes. And it may be that the logic '
5 fr hat is more the carrot and the stick, that is, that you 6 make a determination that it is desirable to have as much 7
of the design in advance, and you offer the carrot to the g utility that does it to say, "The more you give us, the better 9
your chances are of getting in canstruction before the 10 appellate process begins. The less 'you give us, the harder ij it's going to be for us to justify that."
12 You might find that you were serving that interest, O is " " "S"** '""' **"* """ " " "'"' *"**"*"' * "*""*' ""* '""'
ja would be a separate reason for looking at that, not just for 15 the immediate effectiveness.
16 And the last thing that I wanted to mention was that j7 I heard you mention that you were going to look at how it is 18 that utilities make their decisions with respect to deciding 19 to build a nuclear plant. I would urge that -- I think that's g i
20 ag d thing to look at, and I would urge that you also look l
21 into the question of how they could make them.
22 In other words, you may find that the way they do 23 make them is not necessarily what you would consider to be the 24 rational way. I wouldn't want you go get into the position i Ace Federci Reporters, Inc.
25 f reaching conclusions about the immediate effectiveness rule e
54 1 based upon what may be an irrational decisionmaking process.
2 of course, when you look at that you're going to 3 be looking at work the Commission has already done in part,
( 4 and that is how the states interface with the utilities and 5 the state impacts on the way the utility makes decisions.
6 I've found instructive looking at what I believe 7 was the last report of the group of reports on state regula-8 tory activities with regard to the Nuclear Regulatory 9 Commission, the one that I mentioned before by the Center for 10 1 Natural Areas, which looked at how the states make decisions 11 on the need for power question.
12 It was very interesting. They did a survey of the
({} 13 states, and I was stunned to learn that in some states the 14 first determination on need is made after the plant has been 15 built, and it comes up in the context of a request by the 16 utility for rates to recover the costs of the already built 17 plant. That was a real eye-opener to me. I didn't know that 18 anybody was still doing that.
19 And there are other states all the way to the other 20 exteme, who are making the need for power determination back 21 before the utility was allowed to even begin raising money and 22 were making a need for the power then a need for the facility 23 and then a need for the site, in that o:?er, of events.
24 So that might be useful, to see all the different i Ace Federd Reporters, Inc.
25 ways in which the states are dealing with utilities. That c l
l
55 I
j might explain how the utilities are dealing with the problems 2
themselves, because they have to fit into that scheme.
3 That.was all that I had to say, except that I will 4
exercise the privilege you've given in the Federal Register 5
notice of submitting written comments to you in the days to 6
f0110"*
7 MR. MILHOLLIN: Does anyone of the Group have g questions for Mr. Roisman?
9 (No response.)
10 I'd like to address a remark to Mr. Roisman. I jj hope you will give special attention, or that you will com-12 municate with other public intervenors to give special attention
,O to the question of the appropriate format for receiving public U 13 ja comments. That's a subject on which you are particularly l
15 able to advise us.
i 16 Are there other remarks from members of the public? :
i xxxx 37 STATEMENT OF ELLEN WEISS, ESQ., ON BEHALF OF l
18 THE UNION OF CONCERNED SCIENTISTS.
19 MS. WEISS: My name is Ellen Weiss, and I'm counsel 20 for the Union of Concerned Scientists down here. I also was 21 one of the attorneys on the Seabrook case in another incarnation, 22 Karen Sheldon, rr> presenting the New England Coalition i
O 23 on Nuclear Pollution, was here and had to leave earlier. She 24 asked me to convey her essential agreement with whatever I say. ,
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I 25 I'm really'of two minds about the committee. I'm !
I !
56 j very pleased to see you finally getting into this issue. I 2
say " finally" because it was over a year ago now that the 3 Commission decision came down in the Seabrook case directing
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(j this Study Group to get underway. On the other hand, I find "
4 5
it extraordinarily difficult to conceive of what could take 6
nine months to resolve what in my mind is a very clear issue.
7 I suppose that's because I've thought about what 8
the reasons are that justify the immediate effectiveness rule, 9 and I've yet to think of one that's really a legitimate reason 3
10 from the standpoint of the regulator and what a regulatory 11 agency is all about. I've thought about a lot of reasons, but 12 none of them were legitimate reasons why you ought to have the
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v 13 combination of the stay rule and the immediate effectiveness l ja rule as you have them now. If you were to agree with me on 15 that, there are a variety of ways that you could change it, l
16 and maybe that's what the nine months will take. I j7 To my mind one needs only to read the questions ;
18 that the Commission has drafted for you, and the answer is 39 rather clear that something has to change.
20 I, too, agree that a more widely available. method 21 f interlocutory review would take a good deal of the pressure 22 ff the system as it is, and I also believe that you ought to rm
') 23 probably take a look at the facts before you ge.t into too 24 great detail about the scope. '
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25 I commend to you that you become intimately familiar, e
57
, j if you aren't already, with what happened in the Seabrook case 2
and that when you do that you understand that stay motions were 3
filed immediately with the Appeal Board. The first response 4 .from the Appeal Board was essentially, "We cannot deal with -
5 these. We don't have time to take the record and look at it 6
and determine whether you meet the stay standards."
7 The first response was not, "You don't meet the 8 ,. stay standards; you have not shown reasonable probability of 9
success." Essentially the first response was, "We haven't got i
10 the time to make that determination.
11 Of course, the combination of that and the immediate l
I 12 effectiveness rule put us some weeks down the road before the l
O is ^""*"' " ""* """ *"*" *" " " "*** " * """*"" '"* "*"**" '
ja the stay motions. '
15 It seems to me that sort of the least radical change 16 that you could recommend in the immediate effectiveness and j7 stay rules would be to automatically stay rhe effectiveness 18 of any initial decision at least until the Appeal Board has 19 a chance to look at the stay motions which are before it.
20 I can't imagine that that would take more in any case than l tw and a half to three months, That is the least radical 21 22 change that you can make in the rules as they are now.
23 MR. MILHOLLIN: Excuse me. Could I ask you a 24 question? ,
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25 MS. WEISS: Sure. c
58 i MR. MILHOLLIN. How long did it take them to 2 decide the stay motions in Seabrook?
3 MS. WEISS: Well, I don't have those dates before
() 4 me. They did in effect decide them by saying, "We don't have -
5 the time to determine whether you have a reasonable probability 6 6f success from the papers before us." That was in effect a 7 denial, and that came relatively quickly.
8 Mr. Roisman may remember what the dates were. Was l
4 9 it about six months when we finally.got that?
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10 MR. ROISMAN: Actually, the Appeal Board granted d I
11 three stays, one of which the Commission overturned. There l
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12 were two actual halts.
There were two which'were upheld by
(} 13 MS, WEISS:
14 the Commission and one which wasn't.
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15 MR. ROISMAN: That's right. The first one had to l
16 do with the S-3 table. The Commission had laid down standards 17 for suspending existing construction permits and operating 18 licenses.
I 19 Filings were made with respect to that in late 1 20 August or early September of '76, and the Appeal Board at the l
l l 21 end of September issued an order granting the stay. And this 22 was interesting, sort of.
23 It's difficult for those of us who have worked on
- 24. this side of the issue not to get a little bitter. An auto- ;
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f 25 matic stay of 10 days was given-- no such thing has ever O
59-I happened for construction permit's and operating licenses-- to 2 enable the Applicant to appeal the Appeal Board's stay to the 3 Commission. Before the stay ever became effective, the Commission had then extended that stay and eventually overturned
~
4 5 the Appeal Board by issuing a new S-3 table in the interim ,
6 form,. which they then used as the basis for undercutting the 7 need for the stay.
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. i 8 Then on two other occasions stay applications were i 9 submitted as the EPA decisions came down, first the one out j
10 of the court and then the one from the Regional Administrators 11 overturning the earlier decision.
12 I can't remember -- I don't remember that any of
(} 13 them took even as long as Ellen suggested, three months. The 14 papers were filed very quickly after the decisions came down.
15 What happened at Seabrook was that it evolved into 16 an argument over the likelihood of success on the merits. We 17 were winning stays whenever it looked Ifke we were winning; j 18 we were losing stays whenever it wasn't clear that we were 19 going to win.
20 The irreparable injury aspects were initially 21 treated as impossible for us to prove. In the first denial, 22 of the stay, before the one that happened within a few days 23 after the construction permit was granted, the Applicant and 24 Aerens amor=rs, w, the Staff almost gleefully argued to the Licensing Board that '
25 in the first two days they cut every single tree on the lot e l
60
) and had graded the ground, and that therefore all the poten-2 tial environmental impacts that could occur had already 3 occurred, and then used that to argue that we had no basis r
(n) 4 for arguing irreparable injury and therefore we didn't need -
5 a stay.
6 It was only as the case evolved that we began to 7 get the Appeal Board and the Commission to recognize that 8
the sunk costs were what were really killing us, and that was 9 only because we were looking at it in the context of alterna- l 10 tives at that point, building here versus building somewhere 11 else.
12 But d.o the extent that your likelihood of success 13 on the merits is the key, then what Ellen is suggesting, how 14 difficult it is to try to get the Appeal Board to get to the 15 merits quickly enough, right after that decision has come 16 down, I think is very difficult. In Seabrook they just flat 37 refused.
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MR. OSTRACH: I'd like to mention something about 18 l j9 the Seabrook case. I think the public record will show that 20 almost everytime the issue of stays was presented to the j 21 Commission -- and I bezieve with the exception of the very, 22 very first application for stay to the Appeal Board -- the rm lj 23 Staff and the Applicant, as Mr. Roisman said, argued, "We've 24 got a construction site there. All we're doing is digging l Ace-Fecer;t Reporters, Inc.
25 the hole deeper and putting in concrete. j Minimal environmental l l
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61 1 impact, a few more trucks. But the environment is already 1
2 that of a construction site. What irreparable injury is there i 3 from continuation of construction for a week, a month, a year?"
n k)
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m 4 The arguments of the Applicant and the Staff against
$ the stay always leaned very heavily on the fact that the 6 Intervenors could show no irreparable injury to the environment i 1
7 from the continuation of construction because the impact had 1 1
8 already occurred. And that had already occurred, I think 9 it's fair to say, before the date of the Appeal Board's first 10 _ merits decision on a stay, which is ALAB-338, which came down 11 almost exactly a month, perhaps a month and a week, after the 12 date of the initiation of construction. Construction started
(} 13 on July 7th. I believe ALAB-338 came down in late August, 14 so perhaps a month and two weeks the Appeal Board issued its -
15 first denial of a stay. By that time the environment was in 16 a situation such that for the next two years Applicant and 17 Staff could argue, "The environment has been damaged. There 18 is no further irreparable environmental injury."
i 19 So while one of the issues the Study Group is to 20 address is timing of environmental impact in the construction I 21 process, at least I come to the study with a belief that there 22 is a very sharp spike right after the construction permit is in the Applicant's hands and that those environmental impacts, 23 i
24 at least in terms of' impacts of construction, dominate the i i Aes Feder:8 Reporters, Inc.
! 25 entire process, a
1 u
62 MR. ROISMAN: I might say, we, after Seabrook, j 2
utilizing the "once burned, twice warned" theory of litigation, 3
we attempted in another case, the Clinch River case, during 1
4 the course of discovery to learn from the Applicant if they
-l 3
got a limited work authorization -- by the way, I'm sure that you all know there was a limited work authorization in 6
7 Seabrook. The decision was a complete decision. There had never been an earlier one. In that case safety went first 9 and the environmental issue second. In Clinch River the 10 opposite was being proposed.
-)i We asked in the course of discovery for a full l
12 layout of the first two years of construction schedule for 13' the facility. We wanted to know money to be spent, people
, j4 to be hired, who doing what, where and when. We said the 15 reason for doing that was to have in ou'r hands the information 16 necessary to make our arguments if a limited work authorizaticn a
37 were presented on why a stay ought to be issued and why it l w uld or would not be harmful to the Applicant to have one {
18 ;
39 issued. -
20 The Licensing Board, which I will say in all candor, '
2 in ntrast to the one that finally decided the Seabrook case, 22 was a superb Licensing Board and I consider that they gave us O 23 everv =eesoned1e consideretion in our ereument, denied ue the 24 discovery request on the ground that it was not pertinent to ,
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25 the issues presented in the proceeding. c
63
)
) Assuming that that's a valid decision, then I think 2 you have to look at where does a party like us get the infor-3 mation available to argue about a stay, particularly when the !
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() 4 Applicant comes in, as they did in Seabrook at virtually every 5 stage, with affidavits from people about all the consequences 6 that would occur to them if the stays were granted; and those 7 are presented in affidavit form above the Licensing Board 8 level, where the right of cross-examination and discovery and 9 so forth were not available in any way. How do those things 10 get challenged, and how does anybody have a basis for contra-11 dicting it?
12 The scheduling of workers coming on the site, the
(~') 13 sche ' 11ing of expenditures o; mone; , the schedul;<n 1" borenw-
'<J 14 ing and so forth are all somewhat in the control of the 1
15 Applicant. We could never tell from the affidavits presented h l 16 whether what we were being told would be the results of grant-l j7 ing the stay were results that were being created to make the l
l 18 situation look as bad as possible or whether they were things 19 that were legitimately immovable.
20 The early construction work, Steve, was much.less 1
21 than the six weeks it took the Appeal Board to review it, 22 because they went on 24-hour schedule when they first started.
P 23 They were working around the clock. They finally got a stop ,
24 order from the local community, because the people were very ;
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25 upset about all the noise that was taking place at 10:00 or .
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l 64 11:00 o' clock:at night.
)
2 But the fact was that they were going as fast as .
3 they could..
It would haveLbeen a fair question to have asked ,
l 0 4 and te trv ee eee an answer te r oid reu have to de thae2 Is 5
there some clear reason why that was necessary, or was it 6 being done.for some reasons related to litigation strategy?"
.i' MS. WEISS: Tony makes the point which I was going 7
to make after hearing Steve speak. He was absolutely correct 8 ,
9 in his characterization of the arguments that were made, )
I 10 and'that is that the rule, of course, creates an incentive to '
ij do'that,-to go in and work 24. hours a day. It doesn't happen 12 b'y mistake. It's to the advantage of a utility to go in and O;
34 Of course, there is a. third prong to that triple !
.. whammy. It's not just the combination of the immediate effec-
.; tiveness rule and the stay rule. It's also this new doctrine 17 which evolved out of the Seabrook case to the effect that costs 18 expended during the period of construction then count in the j9 eost-benefit analysis against alternatives.
20 So it's a triple whammy, and my voice quavers still 21 when I think about-being caught in the' middle of those three-22 sets of rules.that make it impossible for the Intervenors in 23 the Seabrook case, having won on the merits three times and 24 'having'been sustained twice by the Commission on the merits, i l ~Aco Feder;.1 Reporters, Inc,
! 25 to'have achieved little else than a civics lesson on how the q l
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rules ought not to work.-
2 MR. ROISMAN: By the way, one thing you should look 3 at in Seabrook and other cases is how much money had been spent
) on the facility and how many pieces of equipment had been
- 4 5 rdered and how many contracts had been signed that had penalty l
6 clauses in them that would ultimately cost money before con-7 struction was ever approved.
8 Legally under the Commission's existing rules, but 9 as far as I can determine not legally required, the Commission 10 w uld have the right if it wished tcI prohibit the early order-11 ing of equipment and the early expenditures of money other 12 than those essential to making the application if it chose to ;
exercise that.
13 And the se affect the implicatio'ns of the 14 immediate effectiveness rule.
15 It might be argued that the results in Seabrook 16 were predetermined by the fact that, according to affidavits j7 submitted after the case was over, over S200 million had been 18 irrevocably spent on the plant before construction was permitted 19 to begin. That was at a time when it was thought the plant 20 cost would be $1.2 billion, so it means that a sixth of the -
21 investment had been made in the facility before the Commission 22 ever issued a construction permit.
23 That may have been a sufficient sunk cost at that 24 Point that, if the sunk cost rule had been in effect, someone i
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25 would have said, " Forget about discussing anything else. No one <
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66 will ever be able to overcome that S200 million."
2 MR. OSTRACH: In the Commission's March 1977 3 Seabrook opinion, they took note of the $200 million figure 4 and, I think, put a few question marks after it. "
5 You're quite right. It has never been gone into.
6 Do I take it, then, that you're suggesting that another 7 Potentially relevant question before the Commission is 50.10, 8 dealing with initiation of cor.struction before C.P.?
9 MR. ROISMAN: Y .s s .
10 MR. OSTRACH: Again, I think that might well be --
11 I think it fairly could be characterized as a scope question l 1
12 since it dealr wich initiation of construction before appellate )
l O '3 **$"** *** "- **S"' "- "* ***"***** *" '"* i"**"i" "*" "*- i 14 MR. PARLER: Well,' the point that I understand Mr.
15 Roisman is making would perhaps go beyond the 50.10. You're 16 talking about more than the initiation of construction at the 17 site, aren't you?
18 MR. OSTRACH: He's talking about changing 50.10, 19 making it stricter.
l ROISMA11: 50.10 is the provision that specifically 20 21 exempts the aarly ordering of equipment, and then it also allows 22 those gradations. But those are under the Limited Work 23 Authorizations 1 and 2, where you can actually begin some f 24 physical construction, t
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25 MR. OSTRACH: But you're talking about making 50.10 c l
3 .,, 4 y , , - - - -
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j stricter. '
2 MR. ROISMAN: Right. '
3 MS. WEISS: Well, it may be necessary to make 50.10
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4 stricter. It may also be that 50.10 is okay and that we were 5 just simply unable in the context of the Seabrook case'to probe 1
6 behind those assertions that $200 million had in fact really )
7 been committed, because all of those affidavits kept coming in l l
i 8
at every stage.
l 9 We suspected that they weren't really committed in 10 the sense that there were checkpoints that could be reached
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11 and there were decisions that could be made at various points i
i 12 during the fabrication of' equipment to minimize those losses
(). 13 and mitigate those losses. We were never able to probe behind ja those.
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15 So some way to deal with that. It may not neces-16 sarily require changing 50.10. It may require some sort of i j7 change in how you deal with those affidavits that come in on 18 stay motions that are essentially unprobable -- bad word. One 19 can't gec behind them. -
20 MR. MILHOLLIN: So you're suggesting there should '
.. 21 be some process for doing an evidentiary inquiry into the 22 grounds for stays which appears not to exist now?
23 Can't you address the Licensing Board? Can't you 24 address a request for a stay to the Licensing Board under the ,
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3 68 1
MR. ROISMAN: Yes, normally you would, but it is 2 our understanding, having been through it a few times, that 3 the Licensing Board does not entertain an evidentiary hearing i on the issue, that the stays are decided on papers, and that 5 affidavits can be submitted by either side but that they do not 6 , trigger evidentiary hearings. No one ever been successful 7 in getting one.
8 MR. OSTRACH: The only evident.mry hearing on a 9 stay, or at best a quasi-evidentiary hearing, was last June,
~~
10 I believe, in the Seabrook case. Rather than a'lawyWr,.a I
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, 11 ' witness from Public Service of New Hampshire came down and 12 was before the Commission while it was considering a stay at
() 13 Seabrook. Ms. Weiss was one of the attorneys who examined him.
14 Correct me if I'm wrong. I believe it might have 15 been Mr. Tallman. Perhaps not. Anyway, a senior representative, i
16 of Public Service of New Hampshire was there and was examined, '
l . . . _ . .
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17 but again.it was in the context of a stay and was not the same -
18 as a typical evidentiary proceeding. -
19 MR. ROISMAN: I'd be inclined to think that overturn-l 20 ing the Clinch River decision and allowing discovery to probe l
! 21 the issues would itself be very helpful, because discovery and 22 potential cross-examination on the issue during the context of O' 23 the hearing would get you out of the critical path.
- 24 If somebody wants the kinds of allegations that l
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25 Public Service made in defense of the continuation of <
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j construction, you could not necessarily, even with the best l
2 f intentions by them and by us, resolve in anything like a 3
several week period.
(%
I ) 4 One of the legitimate issues would have been, "Did 5
y u deliberately form your contracts in such a way when you 6
had choices so that you would be able to argue at this stage 7
that you could not do this? In other words, did you create 8
the fait accompli voluntarily rather than being forced into it?"
9 That would require exploring those contracts, i 10 perhaps even calling in the parties to the contract and finding 11 out: "You've got a condition here. Did you put it in, or did 12 the company put it in?" Those kinds of questions, plus there O is """ ^ S"*"** " '" "*""" " ' " ' ' **" ' 'd*"** **"*""*"
34 could they be shipped somewhere else? Could somebody else buy then?
15 l 16 The Commission outlined at one point, in discussing i
j7 the obviously superior standard on alternate sites, that you ;
18 would have a chance, once you had gotten by the obviously l
19 superior standard and had found the site which appeared to be 20 obviously superior on environmental grounds, to then probe the 1 21 extent of the sunk costs. They recognized that it would be 22 a rather extensive probe that you would want to make into that,
,rx k) 23 and they, if I remember correctly, refused to endorse the
! I i
i' i 24 princi de that all the sunk costs claimed by the Applicant l Ace-Federal Reporters, Inc.
would be balanced against your alternative site, 25 necess. j i I
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70 j and implied that maybe you would find some of these that 2
wouldn't count.
3 But that highlights the difficulty you have when n
() 4 it's a stay that you're asking for and the same group of ~
5 sunk costs and potential sunk costs are being used to argue 6
against it.
7 MR. MILHOLLIN: So even the costs which are incurred 8 legally now outside of licensing are relevant in stay questions?
9 MR. ROISMAN: Yes.
10 l MR. MILHOLLIN: And would presumably even be sunk 11 costs at some later time?
l 12 MR. ROISMAN: Yes, that is my understanding of the )
existing law.
(Gl 13 ja MR. MILHOLLIN: If on a remand, for example, it were l
15 necessary to make a new decision, they would be relevant sunk l
5 16 costs under the present system? j
}
37 MR. ROISMAN: If the question were alternative sites l 18 after you got by the obviously superior standard, yes.
39 MR. PARLEE: The advance procurement costs are 20 included in sunk costs? l 21 MR. ROISMAN: It is our understanding that the 22 Applicant is free to make that argument. The Commission I o
l 23 don't think decided specifically which costs would be counted, 24 but the Applicant is free to argue in the sunk costs those
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25 costs incurred prior to the date that a construction permit c
~..._ _ _ _ .. _ _... _ ..__ . . _ _ _ .. _ _ _ _ _ _ ._ _ .. . . - _ .. . _ _ _ _ _ . .-
71 I was granted.
-2 MR. OSTRACH: The intention of the Commission's 3 sunk costs discussion, as I understand it, is that it dealt ,
(~d%
4 with1the relative advantage that the preferred site had over 5 potential alternative sites. To the extent that preordered 6 equipment could be used just as well at the alternate .ite y .as the preferred site, I do not believe that it would confer I
8 a particular advantage on the Applicant. I 9 On the other hand, the Applicant might argue that i
10 it would have to be reworked or "This barge will only land at 11 Seabrook harbor, and if we built _it inland we'd need railroads 12 and'the barge would be down the drain." That would not prove
() 13 anything. The argument would have to be, "But we woLad have 14 to bui".d a railroad there, and here we have the barge already."
15 And that, to my understanding, would be counted in sunk costs.
16 If they were permitted to construct that barge be-17 fore getting a C.P., which would be a question of 50.10, it 18 would have been relevant -- I suppose an argument could be made 19 it might even be considered relevant to the Licensing Board's !
20 initial decision. The. initial decision itself might be l 21 affected by an Applicant's argument, "Give us the construction 22 Permit for Site No. 1, because we spent so much money and tr-)
23 therefore Site No. 1 is that far ahead of the places the .
24 Intervenors suggest be used as alternatives."
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25 MR. SPANGLER: Could I make a comment about this S l
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72 j business of sunk costs, because I think it needs to be put 2
in perspective.
3 In cost-benefit analysis-- and'I think our legal
[ 4 friends in the Regulatory Commission also tend to support this -
5 view -- it isn't very helpful to talk about sunk costs per se 6 as the focal point of decision. It's forward costs.
7 Obviously, sunk costs may have some bearing to 8
part of the forward co'st you consider, but it does not neces- l 9 sarily dominate the forward cost ccmparison of the proposed {
l 10 site plant combination versus an alternative plant site 1 11 combination.
12 You have cost of delay and restoration perhaps of 13 some of the environment that might seem reasonable and the l
14 idea of perhaps using some of this equipment or selling the 15 land. I don't really think the value of the land is part of 16 the question particularly, unless it was such an undesirable 37 piece of land that nobody would buy it on the market if it 18 was put on the market or if Applicant had any alternative use 19 for the same land.
20 So I think I would put the emphasis not on sunk 21 costs as the proper framing of the question, but a forward 22 1 king cost-benefit analysis in the broadest sense of that 23 term--not just a monetary type cost-benefit analysis, but a 74 NEPA style cost-benefit analysis.
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25 MR. MILHOLLIN: I think Ms. Weiss still has the j i
. _. . _ _ _ _. ._.__________....__.-.__._m_ . . _ . . - _
73-i j floor. !
2 MS. WEISS: Before I go on to the point which I 3 'think you were particularly interested in, which is our idea O 4 dome ao voe -
1e** o11o1* detter gus11e vertioie tio=, 1ee -
.5 me,just reiterate that I think the Seabrook case in many ways 6 1s really the " mother lode" of this information and data that 7 you-need and suggest that you all learn a lot about it. ;
8 Just three points on public participation. I think ,
9 that it might be a good idea for you to consider sending a 10 notice out to every service list-in every case'pending before 11 .a Licensing Board and Appeal Board. It's been done before. ;
12 There is definitely precedent for it, to notify them that this 13 thing is going on.
14 There are an awful lot of people out there that 15 ' don't as a regular matter get the Federal Register and really 16 aren't aware of the things that are happening down here in 17 Washington. Particularly since you aren't the kind of group 18 that's likely to go out in the field in any way and conduct 19 hearings out there, I think you might want to consider at 20 least getting a notice out to all the service lists, to take 21 .this under. consideration.
-22 MR. OSTRACH: Excuse me just a moment.
.23 Mr. Chairman, would the Group at any time entertain
)
l the idea of having a meeting at some other part of the country 24
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( 25 specifically to' hear public comment, some sort of a workshop j
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74 I someplace?
2 MR. MILHOLLIN: My understanding of what our 3 authorization is is certainly that it would include that kind
) 4 of activity. I think it would be a Group decision whether
- 5 they want to do that.
6 If we did, my assumption is that the Commission 7 would be amenable to that.
8 MR. OSTRACH: You might think, then, Ms. Weiss or 9 Mr. Roisman, of a means' of determining if something like that 10 would be useful, and if so how it could best be done, 11 MS. WEISS: The second thought that.I had -- and I 12 think that Tony mentioned it -- was some kind of outreach, f'T U
13 whether it involves appointing one of the members of the 14 committee now or looking for somebody else to be'given the 15 job of going out and collecting the viewpoints of the groups 16 that don't get down here to Washington with any frequency, 17 and particularly the groups that have been involved, the 18 intervenor groups that have been involved in licensing.
19 They're likely to have some perspectives and some 20 contributions to make that you would want to hear, I think, 21 and that you well might not hear. There are very few of us l
22 that have any presence down here in Washington with any j 23 regularity.
L 24 MR. PARLER: These would be groups that would Ace-Federd Reporters, Inc.
25 perhaps be other than on the service lists? c i -
75 --
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MS. WEISS: They might well be groups that are not 2
on the service list now because they have no pending cases.
3 I think it would be larger than the service lists.
O 4 rue taira 1aee aea we eue tao ea t ta e vce mien t i
5 be able to -- and I don't know whether you consider yourselves 6
to have the authority to de that, but you might be able to add 7
some ex officio members to your panel. And, of course, if you l
8 wanted to do that, I'm sure that you would want a balance.
9 You wouldn't want to hear just from us. I suspect that you'd ]
10 want to get some industry people on, too. This committee !
l 11 might think about nominating some ex officio members, !
I 12 Thank you very much.
l
, 13 MR. MILHOLLIN: Thank you very much.
ja Are there other members of the public here who would 15 like to make a statement?
xxx 16 STATEMENT OF MARC MESSING, ESQ., CN BEHALF OF 17 THE ENVIRONMENTAL POLICY CENTER.
18 MR. MESSING: m Marc Messing of the Environmental 19 Policy Center.
20 At th'e risk of broadening the scope and complicating 21 the mission of the Group, I think it is necessary that some 22 cursory, at least cursory, review of the reasons for delay O
23 in construction schedules be considered.
24 If the purpose of this Group is to look at the Aos-Federal Reporters, Inc.
25 implications of changes in the immediate effectiveness rule q
l u . -
l 76 j on construction schedules, then you have to make some 2 assumptio'ns about those construction schedules as they exist. l 3 If we look at cases such as Seabrook, the contention l 4 is made that interventions and adjudicatory proceedings 5 obstruct the construction schedules and tend to insert delay 6 in the overall licensing time required for a nuclear power 7
plant. However, if you look at the statistical surveys of l
8 the reason for delay in power plants, a different picture 9 emerges, and that is that construction problems themselves 10 are among the principal causes of delay and that regulatory 11 problems are in fact very insignificant. I think you need 12 some reference point in the existing construction schedules.
O v
13 The reason why I think this is important is because ja legislation has been introduced in the Congress in the past 15 session, and will be introduced again this year, that involves 16 changes in the immediate effectiveness rule or proposes changes j7 in the immediate effectiveness rule. The justification for 18 the proposals are that the changes would improve the licensing 19 process in theory, although in practice those improvements 20 might never be realized and in fact might be detrimental.
21 In other words, a change in either statute or 22 regulations might in theory appear to improve the process, i ,/~x
\) 23 but when it's checked against the real world situation in 24 terms of utilities getting plants on line you find it has just
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25 the opposite effect. ,
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77- <
1 Finally, if the Group focuses singularly on 2 Seabrook as a case study or narrows its focus too much on 3 Seabrook, problems such as these involving manufacturing and f3 k/ .
4 construction schedules may not be apparent, whereas they may 5 ,be more prevalent throughout other cases around the country.
6 I think it's impossible to separate the question 7 of the immediate effectiveness rule from the question of 1
i 8 standardization or completeness of design submitted for the 9 construction permit applications.
10 When you asked before about the status of standardi-11 zation as it's used for construction permits, the Commission l l
12 considered this issue last week, and I believe it was the
( }) 13 staff, Commission staff, that indicated that the most recent l 14 applications they've received from utilities had not been 15 for standardized designs and that for whatever reasons utilities 16 seem to prefer at the moment the uncertainties or the longer 17 process that may be required for custom designs than to go 18 to the possibly expedited licensing proceedings with' standardized 19 designs. It doesn't appear clear that utilities are prepared I
20 to go with standardized designs at this point.
21 MR. MILHOLLIN: Excuse me. Would that support your 22 earlier point that licensing has very little effect on con-l \
23 struction schedules?
24 MR. MESSING: I think it's consistent with it. It i Ace-Federd Reporters, Inc.
25 wasn't meant to support it. o l
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78 1 MR. MILHOLLIN: It's consistent with it at least.
2 MR. MESSING: Yes. The argument here, though, is 3 that probably -- I think the inseparable issue is the one of
/^
\_)3 4 the completeness of the design in design applications. As 5 long as you proceed with construction permit ~ applications when 6 o nly 5, 10 or 15 percent of the design is complete, then the immediate effectiveness rule has a different implication than
~
7 8 if you required a complete final design for construction permit 9 applications.
10 MR. MILHOLLIN: Thank you very much.
11 Further comments from members of the public?
12 (No response.)
(~)
N.J 13 No other member of the public wishes to comment at 14 this time?
15 MR. MESSING: I would like to ask a procedural 16 question. In your opening remarks you indicated that the 17 record would be open for a week following this meeting, and 18 I assume that is for written comments.
19 MR. MILHOLLIN: Yes.
20 MR. MESSING: And I assume that will continue for 1
21 each subsequent meeting. j 22 MR. MILHOLLIN: Yes, unless the comments on our A
l
(_) 23 format for receiving public information indicate we should 24 adopt some other procedure I assume we'll continue to do that, i Ace.Federd Reporters, Inc.
25 I assume, also, that we'll continue to invite public q l
t i
79 j comment at each meeting we have, but we could decide that 't 2 w uld be more efficient to do something else in the mean'_ime.
3 But all our meetings will be public.
,-.3
(_/ #
4 MR. OSTRACH: Mr. Chairman, in answering telephone -
5 requests I have also been telling members of the public that, 6 in addition to the statements at the meetings and comments .
7 addressed to tho meetings within seven days, that members of 8
the committee were prepared to, within the bounds of their 9 work assignments, discuss matters dealing with the study with 10 members of the public at any time, and we would be generally 11 prepared to receive comments at almost any time, subject, of 12 course, to the conduct of our duties. But it was not a matter I~)
ys 13 of speak at the meeting or within seven days or nothing at all.
14 MR. MILHOLLIN: That's a good point, I think.
15 MR. OSTRACH: It should be understood that, if the 16 Chairman and the Study Group so determine, that we may be 1
37 keeping memoranda of all conversations; all comments to us l 18 should be considered to be on the record.
19 MR. MILHOLLIN: There are a couple, I guess, pos-20 sibilities at this time, or there are probably more than a xxx 21 couple. We could continue to discuss the scope of the study, 22 or we could move into discussing information items.
,c 3 23 Mr. Roisman and Ms. Weiss have suggested that we 24 should concentrate on getting the facts before we decide which l Ace-Federd Reporters, Inc.
25 issues we're going to look at. c l
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80
)
MR. CHO: Mr. Chairman, could I comment on that?
I think we all agree that we need to look at the facts before 2
we an ultimately decide what the issues are and what recom-3 4
mandations we want to make. On the other hand, you need some ~
5 sort of focus on the study, and you need some sort of at 6
least understanding of what you want to look at so that in 7
your fact-finding you can decide whether it's completely 8
relevant and what things may be relevant.
9 I think what we're trying to do, when we say we're l 10 looking at the issues to determine scope, I think what we're l
11 trying to do is see if we can expand what the Commission has '
12 told us to see whether there may be other thi'ngs that we ought 13 to be looking at and trying to obtain information later on.
j4 MR. SPANGLER: I would endorse that view. I think 15 that it's terribly inefficient to allocate resources to infor-16 mation gathering and then structure your thing completely j7 afterward, because you will find that you've gathered a lot 18 of the wrong kind of information. And later on, when you j9 structure it, you'll find you haven't gathered a lot of 20 valuable infc;mation that you really need.
. 21 If we had an endless amount of time and resources 22 t finish this job, I think there is a lot of merit in this
]\ 23 suggestion of probing around rather thoroughly before structur-24 ing things, but perhaps a useful compromise might be to have
- Aos.Federd Reporters, Inc. I 25 a preliminary structuring on the basis of what we know now q I
l l
L _- J
81 1
about these facts or surmise what the facts will tell us after 2
we get them in detail, and then reserve the flexibility for 3
subsequent modifications of our scoping and structuring of our
,O V 4 task. "
5 MR. CHO: I take it our report to the Commission, 6 our initial report, is just an interim report, anyway. It is 7 not so firm that it can't be modified as we learn more things.
8 MR. MILHOLLIN: I proposed earlier, and I think ,
)
9 we ought to discuss it, that we tell the Commission what 10 inf rmation we're going to get and how much time it will take 11 and what resources we think will be necessary. What do you
~
12 think of that idea, insofar as it's possible to do it in an O is *"*eri" '*e
14 MR. SEGE: I agree. I think that is excellent.
15 I agree with John and Miller that we should go to the Commission!
16 about what we think the scope of the study should be to the j7 extent that we have thoughts to add to the Secretary's memo, 18 to do that in an interim report, and at the same time tell the 19 Commission that if the information gathering that we undertake 20 in response to that scope, and also in the course of our i 21 early analyses there is an indication that the scope ought to n
22 be alterad, that we will not hesitate to make further recom-23 mendations to the Commission with respect to the scope later 24 on in the study. '
Aca-Federal Reporters, Inc.
25 , MR. OSTRACH: I would only add that we might also <
l
'l i
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82 1 think about mentioning to the Commission how we intend to 2 gather that information, if we intend to do it other than by 3 each of you in the conduct of our normal jobs. If, for I')
N- 4 example, we intend questionnaires to be sent to applicants, o
5 or if we intend to request the Executive Director for Operetions 6 to determine certain information, something like that, if s 7 we're doing mechanisms we ought to bring it to the Commission's 8 attention to see if they have any views with respect to that.
9 MR. PARLER: We certainly have to rely on these 10 other mechanisms in most of these areas, because the informa-11 tion simply is not at our disposal, no matter how hard we try 12 to get the information from our own files and resources.
f~h J 13 MR. SEGE: One specific mechanism question that 14 I would like to bring up is, if we take up Mr. Roisman's 15 suggestion that we fund consultants to assist us in our work, 16 are we in a position to get funds for that purpose, to retain l'7 consultants to do work for us if we should find that that 18 would be advisable?
19 MR. MILHUuLIN: I guess my assumption on that was 20 that we could use thE interim report as a vehicle for getting 21 the Commission's response to that question.
22 MR. SEGE: Yes, I would think that would be good, I')
\'
23 if before the interim report we could develop a feel as to '
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24 what you would like to do in that respect so you could tell 25 the Commission about how much money you're going to need. i c
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1 83 !
1 i
j MR. MILHOLLIN: So between now and sixty days from !
2 now we have to sit down and think about what information these I
3 people could furnish.
.() 4 MR. SEGE: Right. -
5 MR. SPANGLER: I would like to add-this' note of ;
6 caveat. I think we're'on the right track in thinking about j 7 information, but the information needs, of course, to be 8 focused on decisions that we hope to make; therefore. one has ,
9 to ask questions about how accurate do we need to know this 10 i nformation . You might just want to make a quick survey or g 11 a more detailed or accurate survey. How can we validate the ,
12 information?
l 13 Those kind of questions are important, and I
/}
14 think another thing, the cost of information, is something 15 that is very difficult to estimate very accurately.
J 16 Our experience in dealing with contractors, for 17 example, or even with in-house study teams, is oftentimes 18 there is a tendency to underestimate the amount of effort 19 required to gather information. That's why I think we'd better 20 ' set out our specs rather clearly at the beginning, just how 21 much information we think is meaningful for decision and 22 how accurately do we_need to know it.
() 23 In some cases I would.suggest hat we don't need 24 to know it very accurately. Or if we get certain kinds of Ace-Federal Reporters, Inc.
25 information and not get other kinds of televant information, j I
84 1 that information may be of very little use to us. I had 2 some suggestions of that sort of thing in the docenent already 3 submitted to you, that.it isn't very meaningful to gather 4 information, however important it is to understand about 5 irrevocable damage to the environment, it isn't very helpful 6 to gather just information on the number vf trees cut down .
7 or cubic yards of soil excavated or whatever without also 8 gathering information about the importance of all this to 9 society to put that into perspective.
10 So I think a decisionmaking focus of information 11 gathering is absolutely imperative in providing reaconable 12 estimates to the Commission of effort required. I
(} 13 MR. MILHOLLIN: Since I guess Mr. Collins and our 6 14 p eople who deal with the evaluation of applications are going l
15 to have to generate a good bit of the'information on the I 1
16 effect of changes on applicants, it would be appropriate now )
l 17 to ask you what do you think generally about the quantity of 18 information we have and what would we have to do to get, say 19 for example, a complete picture of what the decisions were 20 in X case or in the Seabrook case or in fifteen cases or five 21 cases? Do we have the information? Do we have to get it from 22 the applicants?
O 23 MR. COLLINS: Cost information -- I was talking )
24 Ace-FedIrel Reporters, tr.c.
with the financial analysis group the other da-; on this, 25 indicating what type of information we might need as far as. c I
85 costs go. They seemed to indicate to me that they should have 2
ag d deal of it in-house.
3 My approach to this study as far as that infor-
],n 4 mation was concerned was to try to select a half-dozen cases -
5 and see just how the money was committed and at what stages it was committed. I don't believe it's going to be ver" dif-ficult to get that one item, the costs of construction.
7 8
MR. MILHOLLIN: That would include inforcation on 9
costs or commitments -- would that include points of decision, 10 when did they sign the contract for X equinment with a penalty jj clause in it?
12 MR. COLLINS: Yes. It hadn't crossed my mind to 13 do anything deeper than that, such as could they have deferred j, buying some of,the equipment or could the Commission have 15 prohibited them from buying certain equipment, things of this 16 nature. I was just going to try to get a straight cost per i j7 half a dozen cases.
18 Perhaps we'd want to study a couple of them that j9 were uncontested versus a couple that were contested and are 20 still being contested, such as the Midland case.
g MR. MILHOLLIN: Would we have information on the 22 impact .of state licensing?
m U ,, uR. COLLINS: I cou1dn't sa on thae.
i 24 MR. OSTRACH: I imagine that would depend on the ,
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25 specific state the plant was sited in. If you're talking about g
__ .~ _ . . _ . _ _ . .. . _. ._-.m ..._ __ _ _ . _ - . . _ _ _ _ _ _
06 i
1 a New York' plant or'a Massachusetts plant or California, where 2 the1 state plays a very active role --
3 MR. MILHOLLIN: I was just wondering whether our
() 4 data would show that for a given plant. "
5 MR. OSTRACH: Our data might, but the impact would 6 vary. .
+
7 MR MILHOLLIN: Yes.
8 MR. SPANGLER: I also looked im o that question, 9 and I came-away with a very mixed picture.
10 It is true that we have total cost dat.a on expend 1-11 tures available. We have quarterly reports. I don't know 12 whether that's' fine-grained enough timewise, but we have 13 quarterly reports of total expenditures.
)
14 If we're real'.y going to look into-forward looking 15 decision questions of alternatives of moving, say, to another 16 site, I don't think total cost alone is enough information l
17 for that kind of analysis and decisionmaking. I think we have 18 toparseitfine{thantotalcost, and I'm told there is grea*. l 19 difficulty in that matter of parsing it fine enough to 20 answer these forward looking decision kind of questions that 21 come up. l 22 Now, we could get-that, I suppose, estimates of 23 this. I think the accounting systems are not even available l
24
) Ace Fede,:1 Reporters, loc.
to do this, by the way. We have on the one hand a contract l 25 with Oak Ridge on the concept model, and we generically have a l' _
p.
87 i
l j as a function of time a percent of total construction costs I 2
for different periods of time. But that's for an average 3 -plant, and it differs a little bit for a PWR and a BWR and i O 4 that ort of thine. J 5 But here we are focusing on rather exceptional 6
cases. We mentioned Seabrook. If you study that as a case 7 study, what happens there may be very different than the 8
average. ,
9 MR. COLLINS: Well, Number 1, I don't believe 10 there is such a thing as an average case.
11 MR. SPANGLER: I don't, either.
{
12 MR. COLLINS: There's just no such animal.
- 13 MR. SPANGLER: It pu::zles me how to use average 14 information in this context, yes. .
15 MR. COLLINS: So we should select a half-dozen to 16 look at, some ofsthem'that'have been protracted and some of i 17 'them that had absolutely no intervention, and see if there is 18 really any significant difference in cases that are being 19 contested and cases that aren't.
20 MR. SPANGLER: But then we have the additional 21 problem of saying, " Hey,.how does the future relate to the 22 historical case studies?"
O 23 We've e1 reedy heerd Mr. Rosemen eey thee he thinxe 24 the empnasis is going to shift to safety-related issues more Ace-Feder:I Reporters, Inc, 25 than environmental. Are we going to have another Seabrook? g I
_ . - , . - , , , , - . , g e.,----- .r .%- -,-- , n
=-
I Are the cases in the future going to on an average, or even 2
a distribution around an average, ha substantially different 3
than in the past? And I think they woulck be. I think there pd- 4 is good reason to believe that they would be, other than what 5
Mr. Roisman has. suggested. I think there are other reasons.
6 MR- COLLINS:
. That's something to take-into con-I
' sideration after we've gathered the facts of what has happened 8
in the past, right, rather than try to project what's going 9
to happen in the future before we even know if we're talking 10 about significant cifferences in funds expended.
' MR. SPANGLER: I think it's crucial to -- if.we're 12 only going to be aole to study six cases, I think'it's crucial 0 to aeciee waion ix c e we're soiae to tuar which eo we Id think'are representative examples of those we think are coming 15 up'in the future.
16 MR. COLLINS: I think a half-dozen cases ought to 17 give us the information we're after.
18
- MR. MILHOLLIN: How accessible is the information?
Can you press six buttons and get the information in five-20 minutes? I'm not seriously suggesting that.
1 2I MR. COLLINS: No, I can't tell you that. First of 22 all, we have to get the six cases. Then we have to decide as 23 a committee what do we consider the crucial points. After we 24 F
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decide those two items, the cases and the crucial ~ points of l' 25 money expended versus licensing actions or utility actions, l
I
. _ _ . . ___ )
89 1 then and only then can I find out how difficult it will be l
2 to get this information.
'3 MR. MILHOLLIN: You couldn't even tell us what you
() 4 need in terms of resources until we make some preliminary -
5 decisions?
l 6 MR. COLLINS: No. I suspect it's in-house. I 7 don't think it's that difficult to require a staff and this 8 and that to do a lot of digging. I think it's in-house.
9 MR. MILHOLLIN: If we identify certain points I
10 or considerations we want to look at, could we look at all -- ;
11 is it accessible enough to look at all the cat es, for e:: ample, i
12 on Point X? Would that be a better approach than looking '
i
{} 13 at all the points in five cases?
14 ' MR . COLLINS: I don't think so. I don't think our 15 financial analysis was done in any depth until about four or 16 five years ago, to the depth that we are now concerned with l 17 it.
18 MR. MILHOLLIN: So there are going to be a limited 19 number of cases for which we have the data?
20 HR. COLLINS: For which we could get the data , yes.
21 MR. MILHOLLIN: Of course, for other cases wc.
22 wouldn't have NEPA requirements, anyway, so the data, if we 23 had it, wouldn't be relevant.
I l 24 MR. OSTRACH: Mr. Chairman, while we're on the f Ace Federd Reporters, nc.
25 subject of data collection, there is a set of data that I
90 1 think we might want to have that I really doubt will be 2 accessible, or it already exists in the Commission's files, 3 and that would be timing of environmental impact. That's
~
4 the point I was mentioning before about the site environmental 5 impact started, or at least my feeling now, based upon the 6 case that I know best, which is Seabrook, is the site environ- -
7 mental impact being essentially zero until the C.P. was issued, 8 increasing rapidly, and then staying more or less constant 9 from then after. I think that really should be tested.
10 1 know of another case, for example, Sterling, where 11 the Applicant had their construction permit in hand for months 12 and they have not done a bit of work because of other reasons.
. 13 MR. COLLINS: Because of state problems.
14 MR. OSTRACH: No, I don't believe so. My impression-- ;
15 I'm not urging that as a final decision -- is that they don't )
16 need the olant. They just haven't started building it. I 17 might be wrong on that.
-18 But at the least I think that it would be relevant, 19 since clearly one of the things the Commission was concerned 20 about was irrevocable environmental impact during review, to 21 find ut exactly how environmental impact occurs and at what 22 stages it occurs. Is the permissible lev'el of activity under 23 50.10, pre-permit activity, does that ctuse significant 24 environmental impact? What about an LWA 1, an LWA 2? After Ace Federd Reporters, Inc, ,
i 25 C.P., _ 10 days? Thirty days? How much time would we need
91
) before an Appeal Board can make a stay decision?
2 If envir nmental impact is not irrevocable in 30 3 days, maybe we don't need to give the Appeal Board 30 -- you 4 know, we can let the Appeal Board continue as it now does, .
5 giving decisions, if we find out that it can, in 30 days, without I 6 being driven by the fact that that's too long and the environ-7 m ent will be irrevocably altered.
8 I'm .ust saying that we quite probably need his-9 torical data on timing of environmental impact at various 10 stages of the construction permit process, and I have no 11 idea where that idea might be accessible.
12 MR. SEGE: Well, I think that Miller's c 'tision r~x 13 may very well have that.
O 14 MR. OSTRACH: Would you have that, Miller? I 15 don't see why you would.
16 MR. SPANGLER: No. One would have to go on the i
37 site and interview people. I don't think even the utility l
18 would be the sole source of information about environmental 19 disturbance. You could find a lot of local sources of infor- ,
l 20 mation about that part. '
21 I think the financial part of it is a horse of 22 another color. I don't think other groups would have much (n_) 23 knowledge perhaps about that, except perhaps to question our 24 procedures, whether they're proper in getting that information.
Ace Federal Reporters, Inc.
25 I'm told that in terms of getting financial coct ,
I
92 i 1
I I data that you have the architect-engineers and the construc-2 tion companies and wnat-have-you, and the way they organize 3 their information and submit bills is not detailed in terns 4 of our needs.
5 I think there is going to be a mismatch right there, 6 and then we're going to have to make do, if that's important l
7 to us, with somebody's professional judgment of how it would 8
be broken out at different points in time. And the more
~
9 recent tiidt dhpeEience is, I think the better the judgment ,
10 would be. Of course, that would require field investigation 11 and traveling around the country talking to AE's.
i 12 I don't think the utilities have that information 9
'n that level of detail, and I don't think the contractors
'( ) i i 13 14 -have it, either, at that level of detail.
15 MR. IRELAND : Does Oak Ridge have it in terms of ;
)
16 a typical, average plant as a function of time? )
17 MR. SPANGLER: Theirs is very gross. It really 18 isn't in detail.
19 MR. COLLINS: Do we need it any finer than something 20 gross? If we're talking about a utility has committed $300 21 thousand, do we care whether it's 300 or 350 thousand?
22 MR. SPANGLER: It depends whether you get into O 23 these forward cost questions.
l 24 MR. COLLINS: Yes, but even in those cost figures, Ace-Federd Reporters, Inc.
25 it would seem the magnitude of hundreds of thousands of dollars d
1 93 l
1 j ls what we're going to be dealing in, To try to break it I l
2 down any finer than that is really, I don't think, going to ;
3 affect the decision made by this board. i
~
k',_')i 4 MR. OSTRACH: Particularly when, as Miller points 5 out, we don't really care whether they've spent 300 or 350 6 thousand collars. What we're interested in in terms of the 7 Commission's sunk cost factor is what impact does that have 1
8 on the completion of the plant as contrasted to alternatives.
9 The environmental impact question, on the other 10 hand, that I mentioned is one that is directly before us at l 11 the commission's request, and I think that we don't even have 12 gross data on that.
~
(w^]' 13 At least we have some accounting reports from 14 the applicants. In terms of environmental impact, I e::pect 15 that we would start at ground zero and our sort of floating 16 gut impressions about what we've heard and maybe what we've l'7 experienced in particular Cases.
18 That might well be something for a consultant or 19 something we'd even have to rely on public comment for.
20 MR. SPANGLER: Let me say I already have talked 21 to the Environmental Project Manager on Seabrook, since that's '
22 one of the key things. I asked him both kinds of questions,
,~ j
( k' i
23 about cost data and about environmental disturbances, 24 What he was able to give me was very macro and j
. Ace-Feder) Reporters, Inc.
25 very sketchy, and I would think rather inadequate for e
94 i decisionmaking purposes without going out to the field and 2 really scratching pretuy thoroughly on some of these things.
3 And that raises the question of how many -- and
()
v 4 I think that's in line with your philosophy -- how many can -
5 we afford to look for in guiding our deliberations en the 6 subject.
7 MR. MILHOLLIN: Paul, can I ask you, how many 8 cases are there in which we have complete data which are 9 fairly recent?
l 10 MR. COLLINS: I really couldn't say. I haven't 1
l 11 sat down for any length of time with the financial people. I 12 just sort of scoped it to them and gave them some highlights
~g 13 of the areas I hhought might be important or good stopping (Q ___ . -
14 points, and they indicated, "Yes, we have that information.
15 It's available here in-hou'se." i l
l 16 MR. OSTRACH: Nhat we have in mind when we're talk- l l
17 Ilg about cases, I expect, would be applications -- probably l 18 only those docketed after, say, the beginning of 1972. In 19 other words, applications that were docketed with the post-20 Calvert Cliffs Commission regulations, Appendix D to Part 50, 21 in mind. I just have no idea how many of those there are.
22 Does anyone know how many applications have been n
()
_ 23 docketed since about then?
24 MR. PARLER: There would be dozens. I guess the Ace Federd Reporters, Inc.
25 question is whether we want or need a complete inventory of
! 95 1
I those or as much information as we can get about Seabrook, 2 as much information as we can get about the Florida Power I
! 3 and Light Hutchinson Island case that led to the Hodder t
I l
(_/ 4 decision with a court-enforced stay of about. a year and cases '
5 such as that.
6 Do _We want six or eight or ten, or do we want a q 7 complete inventory of cases? 1 8 MR. OSTRACH: Are'ousuhhest[ngiusthorrorstories?
f 9 I mean you mentioned two what might be [alledhorrorstories.
I 10 MR. PARLER: Well, the horror stories as well as I 1
l 11 the other stories. I suppose if we have an uncontested case )
1 12 that nobody has raised any problem about, I would, just speak-l
() 13 ing right off the top of my head, find little use of that 14 information to show that the immediate effectiveness rule is 15 good and it shouldn't be changed.
16 MR. OSTRACH: Mightntk~hshLeofvalue--wecome I
17 to the immediate effectiveness rule, driven by a Commission 18 that expressed concern about its application.
19 MR. PARLER: Yes.
20 MR. OSTRACH: And I want to make sure that we give 21 the rule a full and fair hearing. The cases where the benefits ,
I 22 of the rule are-most clearly shown wmuld be an uncontested case,
'd,~
23 or at least a case in which there was never a reversal or a 24 court decision that there was an error made.
- AwFWwd Reomrs, W.
25 It was concern about those situations that led the h
l 96 ;
j Commission to order us to look at the rule.
2 MR. PARLER: I would certainly want to associate ,
3 myself with your remarks that we want to give the rule a k_s) 4 full and fair hearing. I'm always for that.
~
5 There should be a representative sampling of the 6 cases. Some of the people of this Group have suggested that ;
7 there be a complete inventory of the cases. My main point was 8 do we need a complete inventory or a representative sampling, 9 the worst cases that we know about as well as the others?
. l i
10 MR. SPANGLER: I think Bill's point is very sound. 1 11 I think if you were to do a value impact assessment on a rule ]
12 change, this would undoubtedly be a case where the exception j
() 13 is the main argument. The exceptional problems or cases are 1
14 the arguments for making rule changes. You would want to then l l
15 estimate the number of problematic cases we would have ahead 16 of us and a probability coefficient for these things happening, 17 and then assess the pros and cons or the beneficial and adverse 18 impacts of the rule change regarding these exceptional cases.
i 19 I would think that our main focus in the case l l 20 studies should be on the likely problematic cases and the l 21 frequency with which they will arise. I wouldn't object, how-l i
l -
22 ever, to maybe making one study of something else, just for j l
contrasting purposes to get the point across that we are in
~
23 l
our decision considering the full spectrum.
24 5 Am.Fwwd Reorwrs, lm.
25 But I think the main thrust of our information y
l 97 l 1 gathering ought to be on the problematic cases, because this 2 is why -- we ought to be considering fixing something. If 3 it's not broken, don't fix it. Where the fence is broken is l
(~' l
()h 4 where you ought to focus your investigation, so I agree with 1
5 Bill on that.
6 MR. MILHOLLIN: We have to recommend probably that .
7 any change we endorse either apply or not apply to uncontested 8 cases, so I don't see how we could avoid taking those into 9 account in any event.
10 MR. COLLINS: You may find that there is no dif-11 ference.
12 MR. MILHOLLIN: Yes. ,
() 13 MR. COLLINS: You may b'e very surprised to find 14 that a utility knows that they're going into a conte 'ed case 15 and they act the exact same way that they did on a previous 16 plant where they had an uncontested case, and the money 17 business falls out of our consideration.
18 MR. PARLER: I sure would be surprised, Mr.
19 Chairman, if I found considerable similarity between a typical 20 uncontested case and the Seabrook case. It would surprise me.
21 MR. MILdOLLIu: Loea anyone know ".thether there have
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22 been reversalo o5 uncontested cases?
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23 MR. PARLER: There have been reversals of uncontested l l
24 cases, but then the question is whether the C.P., the con-Ace-Federal Rmoeurs, Inc. j 25 struction permit that has been issued under the immediate j
98
. effectiveness rule, is suspended.
)
2 In:an operating license case some years ago, when 3
the fuel densification issue was raised, an operating license,
..O , I he11 eve. ves susgended for some gerioe of time. eue 1 eon't -
5 recall right now any instance, ~ other than perhaps the 'Ilutchinson 6
Island case, where there was a reversal accompanied by a ,
~
7 suspension of a construction permit other than the Seabrook 8
case. I haven't done any recent study.
9 MR. OSTRACH: There have definitely been reversals 10 of decisions in uncontested cases. I recall a case dealing 11 with a plant in Cincinnati, and also a TVA application fairly 12 early in our NEPA application. But in neither case do I 13 recall that.the construction permit was at any time suspended.
ja I might be wrong on that. 'I just don't think there were any 15 suspensions.
16 MR. PARLER: That's my impression at'the present 37 time.
18 MR.'FRYE: Which I think would probably lead us 19 to an-analysis of the reasons for reversals and the --
20 MR. PARLER: The reasons for not suspending.
g MR. FRYE: -- the reasons for not suspending.
22 MR. MILHOLLIN: In a case like that, how would you L
23 decide whether -- on what facts'would you decide whether to 24 suspend? ,
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25 . MR. PARLER: Well, the judgment as to whether the
99 record, even though it's imperfect in certain respects or re-3 2 quires a remand, is still adequate enough to support the find-3 ings which the Commission or its Staff has to make for the 4 construction permit to have been validly issued. ,
5 It's a different kind of analysis from the stay 6
riteria analysis.
7 MR. OSTRACH: It's certainly true it's a different 8 kind of analysis than the stay criteria analysis. The Appeal 9 Board in ALAB-349 and then again in ALAB-366 and the Commission 10 in its March '77 decision have discussed it, always in the 2
gg context of assumed NEPA violations.
12 As far as I know, I'm not aware of any decision where a safety error was made and there has been any e:: tensive O 13 1
- y anai, sis of whether or not construction should be suspended.
, I i
15 In the NEPA context, the Commission has employed ;
16 what it referred to as traditional balancing of equities and 4 l
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j7 consideration of possible prejudice on remand and has -- the i i 18 Appeal Board even bore than the Commission has discussed a e
j9 considerable number of topics under that; the seriousness of ;
20 the error, how many people are going to be laid off, the need 21 f r the plant, the tipping of the balance in terms of work 22 underway, environmental impacts during the matter. It's a ;
! 23 very refined type of balancing analysis.
24 Safety errors, I'm not aware of any such analysis l Ace-Federal Recone,s, Inc.
25 as to whether or not work should be stayed, encept conceivably j g 4
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j in the context of the Trojan seismic issue that came -- it i
l 2
didn't exactly come before the Commission, last summer, I 3
believe it was, where it was simply pointed out that there r
was no longer a certainty that the Control Room would function '
4 5 _'irope rly 5n~the event of an earthquake.
- Tne Applicant asked 6 for a license amendment to construct the Control Room properly, .
7 and their operating license was immediately jerked. They havo 8
considered whether or not to get their amendment.
k 9
MR. PARLER: Well, they were shut down at the timo 10 that they needed the amendment.
}
11 MP. . OETRACII : Right.
j2 MR. PARLER: The head of the Office of ;irr, issued ~
O j3 n rder f r them, in effect telling them not to start up ,
14 until they got things squared away.
15 fir. OSTRACII : And my point is there was just very 16 little analysis. It was almost an implicit feeling that if j7 you do not meet the safety criteria, that's all we need to 18 know. We don't want to hear how much it's going to cost you 19 to be. shut down or anything like that.
20 MR. FRYE: Well, I think we probably need an !
21 analysis of the decisions from that point of view, looking at 22 a sample, sau, of Appeal Board decisions and perhaps Commission l
O 23 decisions.
l 24 MR. PARLCR: That kind of analysis, as I understand t i
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25 it,.is what Section 4 in this April 5th memorandum is addressed a l
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101 L
I to. I don't know if my understanding is correct.
2 HR. SEGE: Mr.. Chairman, with respect to an inven-3 tory, wouldn't it make sense to make an inventory that is.
. <:) 4 comprehensive, has all cases in it, but provide juct ninical 5
information about each case so that we have the perspective 6
that Steve was looking for, with a balance of different types 7
of cases that relate to what we are doing, but at the same
'8 l time not concentrate undue attention on those cases that don't .
i 9
teach us much? ;
10 Then we will have an inventory that includes some 11 - . . . .
minimal information, and we perhaps can discuss that more fully 12 -
later on today. As the next step we could discern from that
() inventory which cases might be representative of horror
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stories or other situations that help highlight the issues 1 i 15 l !
involved in this committee's work, which is what Bill has been l l
16 saying.
-17 I I would suggest then maybe an appropriate compro-18 mise between going into a great detail on everything and l 19 I going into detail.on some things but not recognizing the I 20 existence of a range of other situations.
21 MR. MILHOLLIN: That's a good suggestion.
I 22 1 MR. SPANGLER: I think that's a very fine sugges-3 i
23 I i
tion. I would say that if that could be sequenced to be done 1 i
i 24 l Ac. Federal Reporters, Inc. firtA , that iS, these legal type tnings about what happened l l
25 in all these cases could be done first, that would greatly aid !I 1
102
- the efficiency of gathering other information that we need to 2
gather.
3 MR. SEGE: I agree. There was one question that l 1
/
4 relates to this. When we get the Commission's guidance about I whether. operating licenses should be included, that will have i
5 6 a bearing on'whether this inventory extends to operating 7
licenses as well as to C.P.'s, and that could considerably 8 affect how much work we do on this inventory.
9 MR. MILHOLLIN: Do you interpret the Commission's
-10 I charge to us as at least an indication that they_want us to gj address the Seabrook case in detail? I think I interpret it 12 that way.
13 I guess it occurred to me as a minimum we should ja sort of state our view on the Seabrook case in connection with 15 any recommendation we make. I put that out for consideration.
16 MR. SEGE: Well, I would be somewhat reluctant to 37 base too much concluding on the Seabrook case.
18 MR. MILHOLLIN: I wasn't suggesting that. I'm sug-19 gesting that whatever we recommend we say, "And the relation l l
20 dtween what we suggest and the Seabrook case is as follows." '
21 It could be that Seabrook was an exceptional 22 situation which has nothing to dowi.th what we recommend, and 23 therefore we're not following what might otherwise be an 24 implication of that experience.
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l 25 MR. SEGE: I'm sorry, I misunderstood you on that, jj
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j
103 MR. MILHOLLIN: It just seems to me that at some 2
p int we have to say that whatever we recommend has this effect 3 n the Seabrook case or the Seabrook case has this effect on 4
that. What do you think about that?
3 MR. SEGE: Well, certainly it would be a good test l 6 to apply to any recommendation that we come up with where it 7
e uld have prevented something that we thought shouldn't have happened in Seabrook. ;
8 9
MR. MILHOLLIN: Yes.
10 MR. SEGE: And this is particularly important in 1 11 those instances where what happened in Seabrook was not so i
12 unique that it wouldn't be happening someplace else, anyway.
But I would think that as a general rule applying o 13 ja that test,lamong others, would be a good idea. If you asked 15 formyviewasto$heUhertheCommissionintendedthat, I 16 don't know. All I really know about the Commission's intent 17 is what the Secretary's memo says.
18 MR. MILHOLLIN: It's now 10 after 12:00, and we 39 have to make some kind of operational decision at this time.
20 Shall we have an hour for lunch and come back? Or an hour ! )
-21 and a half?
22 MR. COLLINS: One is enough. +
23 MR. MILHOLLIN: How about an hour and 5 minutes?
l t
24 How about 12:15 -- 1:15? Is that agreeable to all of you? ;
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l 25 Or 1:307
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MR. SPANGLER: Fine.
2 MR. MILHOLLIN: .All right, 1:30 then.
3 (Whereupon, at 12:10 p.m., the meeting was.
4 recessed, to reconvene at 1:30 p.m., this same day.)
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l l j. AFTERNOON SESSION l
i 2 (1:35 p.m.)
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MR. MILHOLLIN: I think we can resume. We can 4 continue to just talk generally, or we could start talking l' about I guess something that I have to remember all the time, 5
6 and that is what we're going to do next, who's going to do l
7 what next and so forth.
8 S me ne indicated that it might be insufficient 9
if we just had one more meeting between now and the time we 10 pretent our interim report. What's your feeling about that?
I'1 Do you think we need additional meetings?
12 MR. SPANGLER: I do.
MR. PARLER: I certainly believe that one more
. (' 13 14 meeting between now and the interim report,would leave a lot 15 missing, as far as I'm concerned, a lot to be desired. I l
l 16 think we should have more meetings.
j7 MR. LOVELACE: I agree.
18 MR. MILHOLLIN: How about one meeting between now I
19 and the next monthly meeting? Would that be enough meetings, i I
! 1 20 or would you say more meetings than that? ; l 21 MR. PARLER: That would depend on what progress we l
22 make this afternoon. We still haven't decided, for example, 23 what we're going to do on the scope of the --the numbers or i
24 the kinds of cases that we're going to examine. '
[ Ace Federal Reporters, Inc. ,
! 25 MR. MILHOLLIN: Okay. Let's put that off and keep I d
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106 1
it in mind until we decide it's time to break up today.
2 MR. SPANGLER: Another procedural question I'd 3
like to put before the group is what structure do we want to
() 4 have for issuing our final report. Are we going to have a 5 vote, or are we going to allow dissenting opinions? Will 6
there be a formality about this? Are we going to have con-7 currences, votes, or what?
8 MR. FRYE: I personally think we may be a little l 9 premature in considering that. Let's see how we proceed. It 10 may be that we will all agree. If we don't agree, then we 11 can worry about that sort of problem.
12 MR. MILHOLLIN: That would be my feeling. I l
l g- 13 MR. PARLER: That's my feeling, also. Under the
\
ja policies that we operate under generally, if anyone on the 15 staff has a differing view they are free to express it, as I ; j i
16 understand it.
j7 MR. MILHOLLIN: That's Commission policy, isn't it?
I l
MR. PARLER: Yes. l 18 j l
19 MR. MILHOLLIN: Maybe we don't have much choice in j l
20 that matter. !
21 MR. SPANGLER: We had Commission policy about value ,
l i mpact assessments, and we just dismissed these.
1 22 O.
'_x s - 23 MR. MILHOLLIN: Shall we continue our discussion 24 of the scope of the study and the question of how many cases '
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25 we're going to take up and what the general focus of our e t
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107 4
information gathering is going to be?
1 2 One point that was brought up by Mr. Roisman was '
3 -the question of whether we should consider asking the 4 Commission for authority to engage consultants, engage outside 5 groups to do surveys for us of one' kind or another.
6 I suppose it would be difficult to make a decision 7 on that subject until we knew for what purpose we propose to 8 have a study done or what information we think they could pro -
F 9 vide to us that we can't get on our own.
10 What are your feelings about how we should approach 11 this subject? Shall we put it off for the time being? I 12 guess we can't put it off for more than -- we could put it
[} 13 off, I suppose, until after the time we file our interim report, 14 but it might be more efficient to deal with it in the interim 15 report if we can' agree on it by that time.
16 MR. PARLER: I would think that the suggestion 17 should at least be raised in the interim report. Whether they 18 s iiould be endorsed is perhaps another thing that we cannot:
19 decide at this time. l 20 MR. COLLINS: I think we have to see how much infor-21 mation is available to us within house that we can get in a 22 reasonably short period of time.
-23 We do have sort of a six-months time limit on the 24 Ace Federal Reporters, Inc.
study. If the ten of us, getting the help from the other people' 25 in NRC, can't get it done in six months, then we have little o l
I
108 1 choice:- either extend the study or get some additional help, 2 sign some contracts with some people.
3 But we ought to find out what we can get in-house,
- 4 what is in-house.
5 MR. PARLER: What we can get in-house and what we 6 can get by sending out questionnaires to the public interest 7 groups and to the applicants.
8 MR. CHO: Mr. Chairman, I think we ought to keep 9 that in mind, but my thinking is that it's premature now to 10 do much more on that until we have a better idea of what the 11 scope of our study is going to be, what informational needs I 12 we'll have, what difficulties we'll be having getting that
( 13 information.
14 I agree with Paul. I think at that point we'll be 15 able to decide better whether some outside help such as that l l
16 l
will be helpful and whether it will help to speed up the study. j l
17 MR. SPANGLER: Maybe that should be our first item l
l 18 of business, then, to examine explicitly what the scope of the i 19 study is.
20 We've been talking about it and we have the April I 21 5th memo in front of us, but we've had other suggestions sub-22 mitted around the table and in our individual memos and so 23 forth. I think we ought to' decide are we going to go with 24 the April 5th memo as the structure of the scope of our study, ,
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l 25 are we going to redefine the scope using that as a basis, or ! c 4
109 1
what? I M. ink that should be our next item of business.
2 MR. MILHOLLIN: Shall we just take it item by item?
3 Does t..at sound agreeablo?
4 MR. SPANGLER: That would be fine. We can talk 5
about sequencing as a separate item, I suppose.
6 MR. MILHOLLIN: On Item 1.A.--I suppose we can 7
start with the objective of deciding what we think about this 8
memo, and when we complete that we can perhaps talk about item 9 things. i 10 xxx Item 1.A., does anyone wish to comment on that?
II MR. OSTRACH: I think it's essential to the study.
12 That's exactly what motivated the Commission to begin our rq 13 work.
%)
14 MR. MILHOLLIN: I assume there would be no objection j 15 to having that as part of the study.
16 Mr. Ostrach, are you not assigned to that so far?
17 !
MR. OSTRACH: Yes, I am. I 18 MR. MILHOLLIN: I'm sorry, the two of you are.
19 MR. PARLER: Oh, I see. I forgot the other star 20 there. I just saw my star.
I 21 MR. MILHOLLIN: We have two stars on that one. l l
l 22 l MR. PARLER: I agree that that is essential to the 23 s tudy, just from the standpoint of complete accuracy. I would 24 Ace-Fedomi Reporters, Inc. assume that, although modifications to the rule are not actually 23 s tated in the questions in 1. A. , that that point should be ;
d
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110 j examined, also. It's not just the questican of retention or 1
2 rejection that we are looking at.' '
3 MR. OSTRACH: I agree.
r O) q 4 MR. MILHOLLIN: The task assignments are agreeable?
5 MR. PARLER: It's all right with me.
6 MR. CHO: I wonder if I might express my views i
7 again on task assignments. I do think it's premature.now to '
8 g through assignments until we see what the' scope of our I
study is. ]
9 10 MR. PARLER: But at least for this one, though, <
11 we just went through it. I certainly think it's an appropriate 12 assignment. I have no problem with it.
13 MR. MILHOLLIN: Well, as we discuss them -- when f would we talk about task assignments if we didn't do it when '
34 15 we talk about the item? We'd have to come back and do it. l i ;
16 MR. SPANGLER: We'd have to come back to it, that's ! !
~
37 right. ;
l 18 MR. CHO: Until you see the full scope of what l l
19 needs to be done. i 20 MR. PARLER: Some of these assignments involve l interrelated items. For example, one that I have later on, 1 21 ;
I 1.F., is interrelated with 1.C., and you have questions such 22 23 as that.
24 If romething like that comes up, you might have to I Ace Feder:A Reporters, Inc.
f 25 wait until we go '. hrough some of . them.
l i e I
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111 L
1 MR. FRYE: 1.A. almost seems to call for the l
l 2 ultimate conclusion. i I
3 MR. OSTRACH: Yes, that was a point that I wanted
() 4 to mention.
5 MR. SPANGLER: Do you have a spare copy of this? '
6 I seem to have lost over the lunch period all but pages 6, 7 7 and 8 of that, and I had it here this morning. '
8 MR. MILHOLLIN: I have only one copy of that 9 document.
10 MR. OSTRACH: Which document?
11 MR. MILHOLLIN: The April 5th memo. Is that on the 12 table, by any chance?
' 13 MR. OSTRACH: No, I didn't distribute'it. I have 14 several copies of it, though.
i i
15 MR. SPANGLER: Could I have one? I'm kind of at j l
16 a loss unless I have something to look at. ;
l 17 (Document handed to Mr. Spangler.) {
I 18 MR. oEGE: Mr. Chairman, perhaps it would help at ;
19 this point to allay the concerns that several of the Group 20 members have expressed if we stipulated that for now these !
21 conclusionary or semi-conclusionary sort of questions that are 22 raised in the scope statements, that at this point they will l
() 23 be addressed only in terms of information gathering rather than 24 I AwFewd Reorms, W.
in terms of conclusion-reaching, and that the conclusion-reaching 25 part would be deferred.
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112 3
In Question 1.A., for example, there are reasons 2
apparent n w f r retaining the rule. There are reasons 3
apparent now for rejecting the rule, and those could be tabulated ha 4 without attempts at evaluation or attempts at arriving at con-clusions.
5 The first part of this question, about the original intent, that is clearly a factual sort, historical sort of 7
a question that bears on the others.
9 I would think in that sense, in the sense of 10 information gathering with respect to these questions, that jj it may be premature to address most of the scope statement 12 questions in the context of this immediate assignment.
i 13 A so, there will be some cross-cutdng so d of j, information gathering requirements which perhaps we will want 15 to return to after the specific items are discussed, and some l
l 16 additional assignments may need to be made for background j l
g items that cut across the different study tasks.
g MR. MILHOLLIN: Okay. So we can assume, then, that I
j9 when we talk about whether we're going to pursue these various
{
20 items we will just be concentrating on the information gathering l g aspects.
22 MR. SEGE: For now.
O. 23 Ma. M m O m u For now.
l t
24 MR. SEGE: Then for the analytical and conclusionary ,
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I 25 SPects we will certa. inly have latitude for rejuggling assignments I c
i,
I' 113 or regrouping or what have you.
2 MR. MILHOLLIN: Okay. All agreed?
3 (Members nodding affirmatively.)
MR. MILHOLLIN:
x I guess we're up to 1.B., the general question of' correlating the construction activity
-6 with licensing steps.
7 I guess that's a big one, isn't it? We also have included in that the impact of --or the correlation between 9 changes in the environment and the licensing process. That's 10 a pretty ambitious item.
g) MR. COLLINS: One of the things that came co my 12 mind in my' replies on these is what do we n.ean by the irrevoc-13 able changes to the site? Are we talking about returning it
), .to its absolute state that it-was found in, or are we just 15 talking about gettinci it back into something that's esthetically; i
16 Pleasing. Eventually the trees will grow --you know, fill in l l
p the holes and plant some trees and let them grow. In ten years '
18 r fifteen years it will be back. Or are we talking about it's j9 got to be returned absolutely to its original state on this 20 irrev cable changes to a site?
I 21 MR. SPANGLER: Right now, as I understand it, we i~
22 . don't have any legal requirement to return it to anything. We 23 do have a study of decommissioning, once a plant is built. We 24 have three scenarios of decommissioning alternatives, but none ,
Ace-Federal Reporters, Inc.
25 f them really impose a legal requirement that they do these
114 I 1
. things. i 2 I don't think we even go through an analysis of '
3 what happens if, during the course of an LWA or a C.P., a j i
l( 4 hole l's dug in the ground and then we say move to Site B'and 5 abandon this site for the nuclear plant at this time. There }
6 is no legal requirement imposed on the Applicant. :
i 7
Maybe states might. They may have the authority. ;
t 8 Or maybe we might wish to do that, but we haven't done it yet 9 is what I'm saying.
{
10 MR. COLLINS: We don't allow them to make much l
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.11 change to the site prior to issuing a limited work authoriza- :
1 12 . tion. I don't' think we allow them to do much to the site other l
l 13 than what's necessary for. borings to satisfy themselves as'
)
14 to --
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15 MR. SPANGLER: Have you been down to River Bend? !
k' 16 MR. COLLINS: This is my opinion, now. Until you j7 'get an LWA there is not'too much done to the site.
18 MR. SPANGLER: T was down to River Bend during an 1 j i 19 LWA, and I rode around --
i
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-20 MR. COLLINS: No, no. You said during an LWA.
l ,
21 I said' prior to the LWA. ;
22 MR. SPANGLER: Oh, prior. You're right.
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J 23 MR. COLLINS: I think the C.P. is issued when you 4
! 24 go down there.after the LWA.
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l 25 MR. MILHOLLIN: The question is whether we could at i c
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115
- this time, I guess, try to agree on what we mean by "irrevc>c-2 able changes."
3, MR. SEGE: I have a suggestion on that.
4 MR. MILHOLLIN: All right.
5 MR. SEGE: That is that for now we don't worry too 6
much about definition of what is irrevocable and what isn t, 5 l
7 but for now describe the changes, and if in doubt put it in. ]
l 8
We can worry later about the line items.
9 MR. COLLINS: I agree. I think that's a good
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1 10 suggestion ~."~
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- l 11 MR. FRYE: I think that's what they really were ;
l 12 calling for here. ,
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l e 13 MR. SPANGLER: But I think we need to at,least go ja so far -- I don't th. ink we need to answer these questions l
15 here, but I do think we need to say what additional information 16 is going to be needed other than that kind of information in j7 order to make use of it in a decision context. l MR. COLLINS: Correct. l 18 ;
I 19 MR. SPANGLER: And I agree with.you on that. I l
20 had similar comments in my own memorandum.
21 MR. SEGE: That can come later.
22 MR. SPANGLER: As long as we included our information:
O 23 sooge.
24 MR. MILHOLLIN: Did you have a comment on that? l I J
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l 25 MR. PARLER: I just wanted to ask, Mr. Chairnan, l
116 j and I guess it's in line with what RLiler was asking. It 2
is my understanding that we are just examining the questions 3
as they are stated at the present time. Even though we may O 4 u ve eo e eeee tio= ror ugg1e e<*1=e the informetien eset -
S being asked by the question, thai we should defer on that 6 until ster we complete the first run-through of the question?
7 The reason why I ask the question, it seems to me 8
that the 1.B. series of questions is the place where the 9
pre-LWA, pre-construction permit costs that could be incurred 10 under the authority of Section 50.10 should be asked.
gj When I reviewed this nemorandum, it .asn't entirely 12 clear to me that those costs were specifically identified
(] 13 and solicited; yet I think that they should be, and I under-34 stand from one of the comments that we received from a member 15 f the public this morning that those kind of costs are also 16 important facts that should be considered.
t j7 MR. MILHOLLIN: All agree?
l 1
18 (Members nodding af firmatively. )
l 19 Would it be appropriate as we take these up to 20 consider briefly what kind of information we might have in- l l
21 house or not? Would that be too time-consuming for you to i 22 give us a general notion of --
l 23 MR. COLLINS: Whether the information is available 24 or not? I Ace-Federal Reporters, Inc.
25 MR. MILHOLLIN: Yes.
I
117 1 MR. COLLINS: I wouldn't be able to speak on it 2 at this time, really.
3 MR. MILHOLLIN: All right.
4 MR. IRbAND: If you're entertaining the idea of 5 meeting between now and March, maybe in the interim, before 6 the next meeting, we could find out what's available.
7 MR. MILHOLLIN: That's what I was assuming, yes.
i 8 MR. COLLINS: I think it would be most important 9 to find out about that.
l l
10 MR. MILHOLLIN: Any other remarks about 1.B.?
11 MR. COLLINS: I have no objection to taking the 12 lead on that for DPM, on 1.B.
()
13 MR. MILHOLLIN: 1.C. is -- l 14 MR. SEGE: I would recommend that we keep 1.C. in 15 the scope without change, but gather no information with 16 respect to it at this time because it would be premature.
l 17 MR. MILHOLLIN: It's stated in rather conclusory 18 form, isn't it? If we knew the answers to that question, 19 we could all go home. Maybe that's an overstatement. !
l l 20 MR. PARLER: Also, Mr. Chairman, I would think that, ;
l 21 in order to be able to deal with the question, we would have 22 to have some sort of assumption as to how the rule would be
.O i 23 'm odified.
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It's one thing, for example, if the Commission delays' 25 the effectiveness for 30 days, and it's quite another thing if i
118 j they delay the effectiveness until all issues have han re-2 solved, either administratively or judicially.
4 3
MR. SEGE: This is really a corrolary to a number '
4 of other questions rather than an independent question.
, MR. M m O m N: yes.
, MR. COLLINS: May I go back to 1.B. and request that everybody look at the point picked out to be looked at 7
and see if we agree to that or whether we think that there I 8
- 9 are other points in the process that should be looked at, also?l t
i I
10 Money spent on a project in the various steps of 11 the licensing process, including tendering of application, g filing of the DES, FES. Does somebcdy think of something else 13 g MR. PARLER: You have the point that I suggested 15 a few minutes ago, the pretendering costs. I i <
16 MR. COLLINS: The pretendering, 50.10.
g MR. PARLER: There may be a few other things that 18 y u might want to look at that maybe would put things in 1
39 better perspective which I will suggest for whatever they're i
20 w rth. That is the costs which are incurred by the applicant ;
g subsequent to the issuance of the construction permit and prior to the issuance of the operating license. And information O u on the cost-benefit mereins in groceedinee et the construction !
g permit stage: how broad the margins are or how narrow, and
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I i
e r
119 1 e would seem to me to be important kinds of 2 _information for analytical purposes. Whether they are in 3 fact to the Group or not, I do not know.
4 MR. FRYE: I guess I would have to go along with 5 that if we're talking about alternate sites, but I wonder 6 about it for the ultimate cost-benefit in view of the l 7 Appeal Board's holding on the value to be placed on the need 8 for power if the power is in fact needed from a facility.
9 MR. PARLER: You're referring to the observation 10 in the Vermont Yankee proceeding that if the power is needed 11 the benefit is priceless.
12 MR. FRYE: Yes. ~
'l l
13 MR. SPANGLER: That raises again a fundamental l V
14 question of the scope of the cost-benefit analysis.
15 We now have succeeded in getting a wider scope of 16 cor.siderations in the need question. It isn't any longer a 17 question of "need for power," which involved forecasting 18 demand and reserve margin requirements. We also now look at
~
19 other aspects of need, like, for example, economic advantsges 7 l
- . ,t 20 When a utility system has a strong dependence on high-cost !
.- -. L 21 baseload oil, there may be economic advantages that would 22 justify the addition of baseload facility without having the O 23 sore of cemend erowth grosecetons end reserve merein thee the 7-C 24 criteria would require. Perhaps maybe a percent or two a year ,
! Ace-Federal Reporters, Inc.
i 25 of demand growth would be enough, and maybe the range of a i
I l
4
120
~
j uncertainty around demand projection is whether it should be 2
3 or 6 So economic considerations and need for facility are 3 involved.
(s 4 Another one involved -- and, of course, the 5 Jamesport decision highlighted both the second and third 6
criterion, or the third criterion, I'm about to refer to --
7 1s reliability of the fuel source. j 8 As we know, the Jamesport decision laid quite a 9 bit of stress on the potential interruptions of oil supply ;
)
10 to Long Island and what this might mean in terms of reliable i 11 electricity.
12 MR. MILHOLLIN: Let me suggest something. It (5 13 seems to me that what you're talking about is whether w e could X_] l 14 add to this item, the general question of the decisional i
15 processes by the applicant: finding out when the applicant l t has to make certain--when the utility has to make certain i
17 decisions; when does it decide to commit itself to a certain 18 site; when does it decide to order equipment that cannot be 19 used at another sits; and the extent to which the licensing l 1
l 20 process affects these decisions now.
21 I suppose that's a fairly ambitious addition. We're l 22 not likely to have that in-house.
()
l 23 MR. OSTRACH: That sounds like the sort of subject l 1
i 24 that would naturally lead to a questionnaire directed to '
AeFerrel Reporars, f nc.
I maybe the six or whatever number of case study utilities, 25
]<
l i
, -.- - _... - .- .- - - - ---__ _ .~. .. .. . .-.
I applications that we study, and perhaps open to general re-2 sponse by other utility companies: when do you make those 3 decisions?
() 4 MR. MILHOLLIN: The second factor that may compre-5 hend what Miller Spangler was addressing is the relative 6
imcortance of licensing uncertainty for an applicant. By 7 " relative" I mean, if we assume that there are X number of 8 uncertainties for an applicant, how important are the un-9 certainties which can be attributed to licensing as compared I
10 to other uncertainties?
11 MR. SPANGLER: I think that's very critical.
12 MR. MILHOLLIN: If we're looking at the effect 13 of our proposals on planning, we'd have to know how important j 14 licensing is in the overall planning decisions of an applicant. . l l I 15 MR. COLLINS: I don't think this would come under !
i 16 this 1.B, though, would it?
17 MR. MILHOLLIN: Maybe not. Is there another topic ,
18 under which this would come? l l
19 MR. SPANGLER: I think it comes under 1., and I t
{
20 think that's the deficiencies of our scope. There are other '
I i'
21 things that are important besides what are listed here in 22 answering the first question regarding modifications.
O 23 MR. MILHOLLIN: Wherever it comes, how uo you feel l t
l i 24 about it? '
Am FMwd Reorwrs,1N. '
25 MR. OSTRACH: I think that applicant psychology is i <
m
122
) a very -- applicant decisionmaking is a very important element 2 in our study, and I think that what you're suggesting really 3, leads to -- maybe it ought to be something we think of doing I
4 right at this meeting, beginning praparation of a questionnaire 5
f r the utilities.
6 You've already identified four or five different 7 questions that are uniquely in the knowledge of utilities, 8
perhaps vendors as well, that everyone seems to think are 9
reasonably relevant.
10 1 MR. MILHOLLIN: Well, it leads into another ques-11 tion I have, which I guess I mentioned in my memo, and that is l 12 to what extent could applicants compensate for the various l 13 alternatives which are proposed in their planning?
34 I guess that's maybe a corrolary of the question, 15 how they plan now. -If you knew that, maybe you could predict 16 whether they could plan so as to take into account a different j7 stay criterion or different date of effectiveness.
_____._._.___J 18 MR. COLLINS: I think so. Right now what I'm l-19 interested in is 1.B., and I don't feel those type of questions l 20 fall der the 1.B. right now. They may be 1.B. (1) ::5. 7ething) 21 1 ike this later on.
22 MR. MILHOLLIN: Shall we add 1.C. to that, then? 5 23 MR. OSTRACH: We already have a 1.C.
24 MR. MILHOLLIN: How about 1.G.? Shall we add a ;
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25 1.G., which would comprehend those points?
l
- g. . - - - . .. . _ ._ _. - . . . _ . _ _ . . ... .. .. . . . _ ..
123 ,
j MR. SPANGLER: Right.
2 MR. COLLINS: We already have 1.G.
3 MR. OSTRACH: No, we don't. It stops at F.
() 4 MR. COLLINS: Mine goes down to G.: "How many 5 stays have been granted by boards and the Commission, and 6 what is - "
7 MR. OSTRACH: That's 2.
8 MR. COLLINS: Oh, I skipped a whole page.
9 MR. SPANGLER: Shall we make 1.G. kind of a catch-to all for things that are relevant to 1. that are not included -
11 by items A. through F.?
12 MR. MILHOLLIN: Well, maybe we'll need a 1.H.-for 13 other things.
-( }
14 Can we agree that 1.G. has to do with decisional 15 processes by applicants?
16 MR. COLLINS: All rignt. I 17 MR. PARLER: That's the same as planning?
18 MR. MILHOLLIN: Yes, planning by applicants.
19 MR. PARLER: Sure.
20 MR. MILHOLLIN: And also the effect of uncertainty 21 in licensing as compared to other uncertainties, how important 22 is the uncertainty of licensing to an applicant.
23 MR. PARLER: I just wonder, Mr. Chairman, if that 24 is going to get us a lot of nformation about ratcheting and ,
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.25 change in the varicus regulatory requirements other than the l l i l
l i l
A2Fd 1 specific kind of procedural change.that we're talking about?
2 Do you want to relate the effect that any -- not 3 any, but a change in the immediate effectiveness rule would O 4 " v- " *" >> 1 "*' 9 ^""i"9 ^"a ** i * "^ "" - i=i' 5 it to that, or do you want to raise the question of all of 6 the various regulatory uncertainties and the impact that they 7 may have on the applicant's planning and decisional process?
I 8 MR. SEGE: It may be better to defer information )
1 9 gathering on this question until we're far enough along to 10 be able to phrase a questionnaire or the scope of a study 11 that you may want to start on the subject, until we can 12 phrase that in more specific terms with respect to specific I 13 changes that we are seriously considering at the time.
14 I agree with Bill that we may be getting such a 15 wide scatter of vague information at this point that it would 16 be more useful to do it in a more focused way later, when we 17 can focus the question better and more specifically.
18 MR. OSTRACH: I agree with the general suggestion, 19 I guess, of deferring preparation until we can address more 20 focus to the question. I don't know if I would defer until l 21 we have specific alternatives that we wish then to address, 22 because in part at least I would like to know what applicants h 23 feel before I go around drawing up alternatives.
24 It may well be that applicants could come up with
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25 an intermediate option or suboption that none of the Group
! 1
125 j members might have thought of on their own, or might have 2
thought of and dismissed as trivial or not offering significant 3
advantages.
MR. PARLER: The question, Mr. Chairman, following .
4 5
up on what Steve has said, I think, that would ie pertinent and !
I 6
timely now is the question of what effect does the -- or l I
7 impact does the present immediate effectiveness rule have on !
I the applicant's planning and decisional process for a nuclear i 8
9 plant.
10 MR. SPANGLER: We already have that as one of the 11 issues that were stated in the charter, I believe, the impact 12 n rational planning.
33 MR. OSTRACH: That's one of the issues.
j4 MR. SPANGLER: We've never defined what we mean by l
15
" rational planning," but I think this section gets at that. <
16 MR. MILHOLLIN: Where is that?
j7 MR. OSTRACH: It's 1.E., I believe.
jg MR. SPANGLER: Yes, I believe it's the last one.
I 19 MR. OSTRACH: But that's in the issues, on page --
l 20 it isn't even E. I'm sorry.
21 MR. COLLINS: The last item.
22 MR. OSTRACH: Page 2.
23 MR. SPANGLER: " Distortion of rational planning."
24 It seems to me we have to have some characterization. I ,
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25 don't like the term " rational planning." We might say the i <
l 1
e
126 ,
j spectrum of planning that is now performed. .
2 MR. MILHOLLIN: Bill, your remark refers to the 1
3 question of whether we should concentrate, when we-talk.about
()
4 planning by applicants, on thc effect of the present rule on 5 their planning, as I understand your statement.
I 6 MR. PARLER: That was a thought, at least for i i
7 openers.
8 MR. MILHOLLIN: All agree? That's an obvious !
i
-9 question, I guess.
10 ' MR. SPANGLER: What are we agreeing on?
j 11 MR. OSTRACH: This question, discussion, arose out 12 of our discussion of 1.B., I think.
13 MR. MILHOLLIN: Yes.
14 MR. OSTRACH: Am I correct that we had earlier 15 indicated that there might be some applicant input to the l 16 questions in 1.B. and that was also going to be part of this '
17 1*G 7 1
18 MR. COLLINS: We were going to have to see how .
19 much is in-house to see whether we need to go to the applicants.!
I 20' MR. OSTRACH: So 1.G. right now deals only with i 21 the question of the application of the rule to applicants' 22 planning and decisionmaking, rather than the other question r'
(_)s-- 23 of how do applicants feel about the issue of 1.B., what are t-j i
24 applicants' data sources?
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25 MR. MILHOLLIN: Yes. <
l l
1
127 j I suppose when I made my suggestion about finding 2
un planning by applicants I assumed that that would include 3 all planning which had to do with licensing, whether the (v ) 4 immediate effectiveness rule or other aspects of licensing 5 which might create uncertainties for applicants.
6 I also assumed that we might find out that licensing 7
as an entire process has little effect on applicant planning, 8 whether it be the immediate effectiveness rule or some other 9 aspect of licensing, that the uncertainties which applicants 10 face from other factors may be far greater than the uncertainty ij they face from licensing.
12 I assume that it would be interesting to know the relative importance of licensing to applicants in the con-0'
/ 13 14 tinuim of uncertainty that they're dealing with. That's the )
15 assumption I had when I proposed that this be added.
I 16 MR. OSTRACH: I think your concerns and those of l l
t 17 Bill could be accommodated in one sentence, which would be j l
1.8 basically what is the impact of the immediate effectiveness j j l
19 rule and resulting uncertainties on your planning, particularly {
l 20 as contrasted to other uncertainties that you confront and l 21 deal with in your planning process, 22 MR. PARLER: Including licensing and all others.
23 MR. OSTRACH: Right, including licensing and all I
i 24 others. ,
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l l
25 MR. PARLER: That would cover an area that another j q i
l i
1 128 l
) member of the public raised a question about this morning, l 2 as I recall, the fact that delays which might be caused be- ;
I 3 .cause of the licensing procedures or changes in licensing l
O 4
grocedures shou 1d be viewed in the coneexe ef e11 the other i
5 causes of. uncertainties and delay. !
i 6
MR. MILHOLLIN: Does anyone wish to propose a 7
1.H. growing out of the fertile ground of 1.B.? Are there 1 8
other things in 1.B. or suggested by 1.B. that anyone would 1
9 like to propose? !
10 MR. SPANGLER: I think the second half of 1.B., 1 jj if I had that information that is implied there on irrevocable 12 dianges in the environment, if I just had that information O '3 * "*' "S"***"' '""' " "" **"" " * **'*"*** "' "" " " ""*
ja I both feel we need, if I just had that information alone I 15 wouldn't be able to put it in a very meaningful decision con-16 text. I think one would need additional information besides 17 that, and one would have to find out what -- how important l 18 these irrevocable changes are to society.
i 39 MR. PARLER: Miller, as I understand it no one is j
20 suggesting that changes in the site environment, that that l 1
l 21 information will be the information va which whatever decision 22 is made is based. That would be just one piece of the infor- '
23 mation, along with all the other information that we're going <
24 to end up asking about. i Ace Federd Reporters, Inc.
25 MR. SPANGLER: But I'm just saying that the other a
}
l l
129
)
pieces related to th; use of that information aren't spelled 2
out here. I don't know where they are spelled out.
3 .
MR. COLLINS: If we go down the path suggested by 1
George, if we just find out what changes are being made and
( 4 5
just forget about whether they're irrevocable or not, I think 6
then we can see whether it's worthwhile even considering it 7
any further.
8 If changes are not.made until after the LWA is 9
issued, or C.P. or anything of significance, isn't made until ;
10 after the decision, that may just dissolve. We may not be 11 too concerned with it.
12 MR. SPANGLER: Well, just to get back to one 13 practical example that was cited this morning about trees
(
ja ihe[ng cut down. I just heard on the radio last night driving l 15 home that 50 percent of the land area between Boston and i
16 washington is covered by trees. I don't know if that's I 37 accurate or not, but that's what I heard. As we all know, 18 trees can be grown. It is true that you don't have a disregard 19 for cutting down trees. I think these are environmental 20 values which should not be ignored, but the question is how 21 important is it to society and where does private property, 22 the freedom -- you know, we buy land for a home, and we're
() 23 free to cut down trees; so why is it more important to 24 impose this as a penalty to society for an LWA which cuts ,
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25 down trees.
i-I
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130 P
j MR. COLLINS:- We're not trying to make any decision right now. We're just trying to gather the facts.
2 i
3 MR. SPANGLER: I was just illustrating why I C 4 think you have_to have something more than how many trees 5
are destroyed in the licensing process. How valuable are 6
these to society is what I'm saying.
7 MR. MILHOLLIN: Let's first find out whether they've -l 8
been. cut down, and then we can decide how valuable they are )
l 9
later. l 10 MR COLLINS: Right. I xxx- jj MR. MILHOLLIN: 1.D. is the next one on the list-12 here. It refers to the likelihood of ultimate reversal of 13 the-result of any Licensing Board or Appeal Board decision.
O .jg Have decisions on review been affected by continuation of 15 construction during review?
16 That's really two questions, I think. I guess in j7 my memo at least I talked about quite a few information items 18 I thought would be useful to know on that head.
19 More specifically, I was concerned with the quality 20 of the -- the quality and character of the reversals. I 21 don't think -- is there another item under which this should 22 come? I don't think there is,.is there?
- 23 MR. PARLER: I don't recall.
24 MR. MILHOLLIN: Okay, I guess now it's time to p Ace-Federsi Reporters,' Inc.
25 talk about that. How do you feel about a rather ambitious-C
F DJ1 l
j research project to find out why it is that the reversals 2
have occurred in the past and on what kinds of issues? I'm reading from my own memo, I guess. And what the results of 3l - .-
4 those reversals were. What really happened as a result of S
the reversals? Were licenses denied or additional conditions ;
6 imposed, more evidence taken? Is the effect of a reversal 7
simply to complete the record? If so, that's quite important 8
but that may or may not indicate that effectiveness should be 9 changed.
10 Having read my memo, I guess I'll open it up to 11 general discussion.
12 MR. OSTRACH: That's a point that was made to I
p 13 George and me when we were speaking to people, even before
%)
14 the Commission's April 5th memo was issued.
At least one person said to us that he believed 15 l'
I 16 under the Commission's present sunk or forward costs and l i
17 obvious superiority rules it was almost inconceivable to him j 18 that any Licensing Board decision approving issuance of a C.P.
19 would ever be ultimately reversed in the sense that after the j 20 Process winds to an end it would have been determined that they; I l J 21 cannot have that license at that site. And that being so, !
l 22 since eventually the applicant was sure to win eventually, s ; 1 23 that person did not see any reason why their C.P. should be l
l l
24 immediately effective. They were sure winners. !
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! 25 That was one person's view, a knowledgeable person, l !
l
. . . A
132 and I think it's rather important. If experience shows -- not 2
nlY experience, but reasonable projections for the future 3
are that ultimately all that happens is that paper is produced ;
("')
v 4 and hearings are held and maybe the Staff is forced to jump 5 through more hoops, but it always ends up getting built.
6 Postponing effectiveness would have no effect at all except i
to run up costs. j 7
8
. a , there's another aspect a
9 of the issue which is of concern, of interest to me. It seems 10 ! that if the immediate effectiveness rule is sound, as it might 1
j) w ell be, that it is reasonable to assume that it is based at l
I 12 least in part on, Licensing Board decisions which are likely to -'
1
, 13 stand the analysis of appellate review.
t a l a
ja For that reason, as well as the reason that Steve 15 mentioned, and perhaps other reasons that I haven't been able t 4 16 to think of yet, I think that it is very important to get the j7 detailed information on the subject along the lines that you I ;
I 18 have outlined in the outline that you furnished to us several !
I 19 days ago.
20 MR. OSTRACH: Do the people who are charged with g that task -- and I know this is John, John, and Bill. Is that right? Do you think that you can gather that information? j 22
, l L) 23 MR. CHO: Well, I certainly agree that those ques-24 tions are relevant and ought to be added, I think, to the '
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25 scope. I think that we ought to look at it.
d a
133 l
j MR. FRYE: I agree.
MR. PARLER: I agree. i 2
MR. OSTRACH: Do you think the information is ,
3 b) 4 available?
MR. FRYE: I think it may call for somewhat of 5
6 a subjective analysis, but I think it's probably available.
MR. PARLER: The information is not readily avail- ,
7 able, I don't think. That isn't what you asked.
g MR. OSTRACH: 'No.
9 MR. PARLER: I would think that the information '
10
- j can be obtained only by digging through the NRC reports. ,
12 Incidentally, a pertinent question at this point is how far back do we want to go? To the beginning of 1972
(T 13
..J ja or the beginning of 1966, or where?
MR. FRYE: Do we want to select some representative' 15 g Cases? !
I MR. SEGE: That's a scope question to raise.
j7 ,
MR. OSTRACH: We mentioned it earlier, I think. l 18 l 39 MR. MILHOLLIN: We mentioned it earlier. Didn't l we mention it in connection with NEPA requirements?
20 MR. OSTRACH: Yes.
21 22 MR. MILHOLL N: I1evaaid not earlier than '72.
MR. PARLER: Yes, but that might not necessarily 23 be the answer to this question. It will be fine if it is.
24 '
Ace-Federd Reporters, Inc. l 25 MR. CHO: It may be that only recent happenings i
I i
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1 woul'd be relevant here.
2 MR. SPANGLER: I would think we would want to go i l
3 earlier on applicants. I would think we'd want a little l 1
)
('/ l g_ 4 e xperience before the oil crisis began in late '73. I would 5 think we would at least want to include C.P. applications l 6 after. January 1, 1973. At least I'd want to go back that 7 far.
8 MR. MILHOLLIN: I was going to ask John Frye, what l
9 do you think about that, John, the question of how far back '
10 we should go on reversals?
)
11 MR. FRYE: My initial reaction to it is to wonder 12 whether it would be a good idea to pick certain representative 13 cases that might cover'a span, say, going back somewhat.
{
14 MR. MILHOLLIN: Would it be too burdensome to do 15 all reversals? Are there just too many of them?
16 MR. FRYE: Well, you basically have, as I recall 17 it, reversals, remands, affirmations, and affirmed and modified.
18 Those seem to be the four categories the decisions fall into. '
19 If you pick reversals and remands, I think you're 20 going to find there are not too many cases. I could be wrong 21 aboat that, but that's my gene. val impression.
l 22 If you pick affirmations with modifications, you'll 23 find a lot of cases. And if you pick affirmations, just 24
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straight out affirmations, you probably won't find very many. '
( 25 That, I think, is the way it breaks out. e l
I i
i
13* 1 MR. SPANGLER: To the extent that there are sub-
)
2 e tive aspects of determining answers to these questions, w uld it not be possible that we might want to have a different l 3l l ,
scoping in terms of some of these questions than in others?
]V' 4 5
Maybe for some of them the information is so easy 6
t get. We do that for all of them, and the more difficult 7
ones we'll be more selective.
8 The reason why I state that is I think, to the ex-9 tent it's practicable for us to do so, I think as large a 10 sample as possible would be very desirable to determine
- .. i 11 frequencies which to apply all our other analyses to to de-12 termine how many are normally processed and how many exceptions 13 arise and to get frequency estimates that would be put in a G'
34 decision context.
15 MR. FRYE: If 11 we're talking about is statistics,)
i l
16 it's very easy to do. You can very easily go through and pull j7 those out, but that won't give you any kind of subjective j l l
18 analysis of whether the issues involved were such that they I l
39 might go to the ultimate question of whether a permit should have issued, j l 20 21 MR. SPANGLER: Right, and that's where I make a 22 distinction. I say for the easy part maybe we should do it l 23 f r all f them, and then where you think the level of effort 24 is too great we'll have to settle for less information. I Ace Federal Reporters, Inc.
25 MR. MILHOLLIN: Maybe we could agree that this j
g._. _ . _ __ _ __ _-- _ _ _ _ ___ __ _ _ _ _ . . _ _ _ . m. .
136 y should be in the scope and then let the people who are assigned 2
to this work on the information gathering burden the next 3 couple of weeks, if we decide to have a meeting in a couple 4 of weeks,'and then we could maybe decide over again how many 5
decisio's n y E want to look at. Does that sound agreeable?
6 MR. PARLER: You mean the information which would 7 be covered in your outline which would be in the scope? Is g that what you're talking about? i 9 MR. MILHOLLIN: I got the impression that there was l 10 general agreement that these items should be included, but i 11 that perhaps there was some discussion as to how many cases 12 we should look at and so forth. And that would depend on how p 13 many there are, I suppose, and how accessible the information V i
- 4 is for each one.
l l
15 What I was suggesting is that maybe w'e could agree l 16 on the inclusion of these in the scope now and then wait for 17 a while to decide on how many decisions to look at when we j l l 18 find out more about how many there are. i 19 MR. FRYE: I'll take a wild guess. If you're 20 talking about -- when was the Appeal Board formed? !
i 21 MR. PARLER: Fall of 1971.
22 MR. FRYE: Fall of '71. And they're up to over 23 ALAB-500 now. So if we're going back to '72, we're talking i I
24 about all the decisions just about. l
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25 MR. MILHOLLIN: While we're on the question of
137
) scope, would you -- since it's my memo we're talking about, 2 how do you feel about looking also at uncontested cases? I 3 assume that you would agree to include that.
MR. FRYE: l 4 Yes, that would be included. Those would '
5 be included. There are not very many of them.
6 MR. MILHOLLIN: I'm not sure that my questions 7 about what happens in uncontested cases are universally use-8 ful. I ju.st thought that the category should be looked at l
9 separately. !
10 t tR . CHO: I would suggest that we look at these i
11 questions a little bit more deeply, not only this particular 12 question but all the questions. We will be, I'm sure, coming i 13 up with others, an'd we might want to suggest that for the O
i
\
14 next meeting. l 15 Perhaps we will find that some of the things we've 16 agreed tentatively today may not be really helpful and that 17 we might want to suggest a change again at the next meeting.
18 MR. FRYE: Maybe we can sort of give them at least ,
19 a report <' the numbers involved and how great a task we think is involved and what we recommend doing as a result.
20 21 MI CHO: Yes, I would suggest that that apply 22 to all the other cases as well.
23 MR. 1 TRACH: Just a parting shot on that issue.
24 I at least think -- and I think Bill also mentioned this i Aae Fooerst Reporters, Inc.
25 earlier -- that you'll probably want to do at least some c
138
)
subjective probing of the participants to see what they thought 2 the effect of ALAB such-and-such was and how it affected future 3
actions.
p
,j MR. FRYE: How they view the issues, perhaps?
5 MR. OSTRACH: How they view the issues and what 6
they view the significance of it as.
7 MR. FRYS: That sounds like a good idea, and that 8 w uld seem to argue for selecting a few for very in-depth 9
sort of analysis.
10 1 MR. COLLINS: I think we'd have to ask the Staff, ;
11 too.
12 MR. FRYE: Oh, yes. Well, the Staff, of course, (l 13 is a participant.
U ja MR. PARLER: Incidentally, in that regard, Mr.
15 Chairman, I would assume that if any member of the public -
16 alggests a particular case as an example for further study and j7 it's not on our list that we would consider those additional 18 examples.
j9 MR. MILHOLLIN: I would assume so, yes.
20 MR. FRYE: I would think so. Also, I think we j i
21 ught to be somewhat concerned about pending cases and how we i i i
22 should treat them, if we should treat them. Certainly anything f
+
n" 23 we say in our meetings has got to be taken with the caveat'that 24 we're not binding anyone with regard to any pending cases. .
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25 And I thiuk we should consider, when we pick our , q i
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139 I
cases for study -- we should have that in mind.
MR. SPANGLER: You mean Seabrook should be finished ,
l I l l
3 before we -- out of.the adjudicatory process?
4 MR. OSTRACH: I think what John is saying -- and I
, )
5 endorse it wholeheartedly -- is that our comments about spe-l 6
cific cases are directed solely towards their implications 7
for the generic questions that we are considering and there-8 fore are not intended to have specific decisional effect or 9
specific reference to the individual cases themselves.
10 I'm emphasizing this because I believe that for 1-my part, and for George's and Mr. Cho's, and the rest of you, 12 that we should feel free to comment on specific cases an,d s 13 express views about them without feeling constrained from 14 continuing whatever adjudicatory responsibilities we may have 15 or may come to have in those particular cases.
6 I believe that's quite proper as long as we under-17 stand that we are speaking in terms of their relevance for 18 the generic issue that we're addressing.
19 MR. MILHOLLIN: Do we all agree that this should be 20 so?
21 (Chorus of yes.)
. 22 All agreed.
MR. SPANGLER: I have one other question to raise 24 i
[ Ace.Federd Reporters, Inc.
about scope with regard to this. Maybe there is a feeling that it doesn't make any difference, anyhow. I don't know. j
140 1 But I just wondered whether it would be pertinent 2 to add.how many initial decisions were split decisions, 3 whether we might want to differentiate our rule change pro-( 4 cedures in terms of whether there is a spli decision or not.
5 MR. MILHOLLIN: I think somewhere in this statement 6 there was a reference to that, was there not?
7 MR. FRYE: Yes, I think there was.
8 MR. OSTRACH: Yes, 2.F., I believe.
9 MR. SPANGLER: I see. But it is pertinent at any 10 rate.
11 MR. OSTRACH: Definitely.
xxx 12 MR. MILHOLLIN: Well, we are now at 1.E., which 13 again is more than one question. Does everyone agree that 14 this should -- do yo'u have comments on 1.E.?
15 MR. PARLER: Mr. Chairman, there was one point of 16 clarification that I had in my own mind, and that is if the 17 reviewers that are referred to in the second question just 18 mean the appellate reviewers, or other people, too?
19 MR. MILHOLLIN: By "other people" you're referring 20 to Licensing Boards?
21 MR. PARLER: Well, Licensing Boards as well as -- a 22 lot of the review is done by the Staff. The question about
( 23 people being on the critical path is often raised in the past.
24 Am-FWwW Rmwwn,1%
Most of the time it is only raised in the context of a 25 Licensing Board being on the critical path, or an Appeal Board '
141 l
l 3
or the Commission, and the impact tuat being on the critical 2
path would have on the qualityo 'f their review.
3 My comment, my point, is that the Regulatory Staff
() a are also reviewers. I suppose their review is on the critical l
5 path. Being on the critical path, if it's thought that it 6
affects the quality of the review we should look at all the 7 reviews.
MR. FRYE: I'm inclined to agree. It seems to me 8
9 that if you talk about eliminating the immediate effectiveness 10 rule you're obviously going to be increasing the time that it takes to give an applicant a license, and that could have 11 12 the effect of putting more pressure all along the line, not
(~N 13 only the people in the Staff who are reviewing the application
(_) i 14 but the Licensing Board and the bodies performing the f i
j 15 appellate function as well.
16 MR. OSTRACH: If anything, it would seem to me i
17 that it would have the effect of reducing pressure on the 18 Staff.
19 If right now there are perceived as two steps l
20 before you can send the bulldozers in, getting Staff to sign 21 off and then get the Licensing Board, if there was a third 22 step, Staff, Licensing Board and say the Appeal Board, 7x
(_) 23 wouldn't that reduce the sense of pressure on Staff? I'm 24 speculating, of course. !
AcFFMwd Reorwrs, lm.
25 MR. FRYE: Well, I am, too, speculating. Given i l
,~ _ - - - _ - -. . . - . - _. . _ _ - - _ . . - . _ . - . . _ - . - . .
j the situation that we so often have--whether it's real or not 2 is sometimes hard to know, but given the situation we so often 3 have, when an applicant is very anxious to begin work, I think ,
4 it could well have the opposite effect since it's going to 5 increase the amount of time before he is permitted to begin i l
6 work.
It may just increase the pressure on not only the 7 {
l 8 Staff but the Licensing Boards to finish their work as quickly 9 -as they cr.u and add pressure to whomever is performing the 10 appellate function.
i 11 MR. COLLINS: If there was a time limit on your 12 review process, any questions that would be asked the Staff 13 certainly would impact more than it would now in that they 14 would have to immediately get on those particular problems 15 to answer any questions that the Appeal Board might have.
16 MR. PARLER: Mr. Chairman, my only purpose in rais- j i
17 ing the question was to inquire of my colleagues as to whether l 18 they thought clarification in this regard would be helpful.
19 MR. SEGE: One possible alternative phrasing of 20 this series of questions might go something like this: The 21 Staff reviewers and the Licensing Board are now on the critical 22 path in terms of licensing decisionmaking. Ordinarily, with 23 the immediate effectiveness rule in place, ordinarily the 24 Appeal Board is not on the critical path. The question in E.
Ace-Feder:t Reporters, Inc, 25 could then be rephrased, "Is it valuable to have one of the
143 1
j revir.w layers, namely the Appeal Board layer, out of the l 2 c'Atical path as additional assurance for the quality of 3 ultimate decisions?"
4 MR. MILHOLLIN: Responses to'that suggestion as a 5 rephrasing of the item?
6 MR. PARLER: I certainly think that it would achieve 7 the clarification that I had in mind.
8 MR. SEGE: We might handle it as an interpretive 9 rephrasing rather than a rephrasing that replaces tha present 10 phrasing. l 11 MR. FRYE: .To be sure I understand you, you're 12 saying in essence that there is a certain value to having -
the
() 13 appellate function carried out with the leisure of time avail-14 able to it without critical path pressure so that they can' 15 very carefully go through the work that's been done before?
16 MR. SEGE: Right. At least I would rephrase 17 Question 1.E. -- to interpreA the present phrasing of Question 18 1.E. I would rephrase it as a question of whether that is
-19 actually the case, whether there is actually that value that 20 you described.
l 21 MR. OSTRACH: It's my understanding that that would 22 be an internal rephrasing for guidance for the people working 23 on that question. It wouldn't be something that we would 24 specificially call to the Commission's attention in our Am-FWwd Reorwrs, lm.
i 25 interim report as what we plan on doing.
--r
l 3
MR. SEGE: I would suggest mentioning it to the 2 Commission as how we -- as the emphasis with which we interpret l 3 this question, not as something that we recommend replacing
, ()
v 4 Question 1.E. with but as an additional phrasing of it that 5 would help the Commission-see how we are interpreting that 6
question. Is that too complicated?
7 MR. MILHOLLIN: I don't think so.
8 MR. CHO: I think that's the import of E., anyway.
9 It talks in terms of commissions and boards, so I think it 10 tends to exclude Staff from that and asks about the impact on 11 the'other reviewers we've talked about, i.e., the Appeal 12 Board and the Commission.
~S 13 MR. COLLINS: Do you call on the Staff during (G
14 your review of appeals?
15 MR. CHO: No, not unless it's on paper.
16 MR. FRYE: I'm inclined to agree that it's a good 17 rephrasing. I think we also ought to perhaps focus on the 18 effect, if there is an effect, that might occur to the Licensing 19 Board reviews and the Staff reviews that precede it in focusing 20 on this question.
21 MR. SEGE: Yes, I agree that that is a good sugges- i l
22 tion.
j tm
(_) 23 MR. MILHOLLIN: The question is phrased with.an l l
i 24 emphasis on the effect on the functioning of the Board rather i Ac; Federal Reporters, Inc.
! 25 than being phrased in such a way as to elicit data specifically.
1 I
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145 !
l g Can we assume that included in this item would be questions such as how much time is now required to decide 2
3 an appeal and whether the time would be reduced if the Appeal i
~
l 4 Board were on the critical path, and by how much? And whether 5 with additional staff the time for deciding appeals could be 6 reduced? !
7 MR. OSTRACH: I think that's information that we 1
8 hav~e to have. This seems like the reasonable heading to group 9 that information under. I 10 MR. MILHOLLIN: If one of our alternatives is to 11 make effectiveness begin after the Appeal Board decides, then 12 we need to know whether that period for review can be reduced,
' i u i by how much, and what will be necessary.
14 MR. CHO: The question I have is I'm not sure how 15 relevant that kind of information is with respect to the ulti-16 mate question we have to make recommendations on.
17 As you know, ,.ppeals vary so much, from one single 18 procedural issue to dozens of very complex substantive is. sues.
19 The fact that one appeal may take six months to resolve and
- 20 another one two days to resolve I'm not sure can tell you very 21 much.- l 22 MR. OSTRACH: That's true, but there are certain 23 things that will leap out at us. Cases that aren't on the 24 critical path, on occasion the Appeal Board has taken -- has Aca-Federd Reporters, Inc.
' 25 very clearly put them at the bottom of the pile. a
. . _ . . , . . _._- _ . _ _ _ - . _ _ _ . _ _ _ . _ _ - .~.
146 l
j At Phipps Bend there was a purely legal question 2 presented. The parties agreed that it should not affect J 1
l 3 construction work in progress. It took the Appeal Board sub-() 4 stantially over a year from the time it was argued to decide J 5 it. It was not the most complex legal case they had before l
6 them. It was clear that because thsy were not on the critical 7 path and because they had a lot of other very important, 8 pressing work they simply bottomed it.
l l
9 MR. CHO: So what does that tell you, assuming you l
10 find out that it took two years to decide Phipps Bend in that 11 particular case? l 1
l 12 MR. OSTRACH: Well, by putting them on the critical I
i 13 path in some decisions you'll get results more quickly. That's j
( l 14 not really the question we're asked to address, though. I 15 MR. MILHOLLIN: If the question could be broadly l 16 phrased, "Should the Appeal Board be on the critical path,"
l 17 then wouldn't you have to know what resources they have and 18 how long it would take them to decide a typical case if they 19 were on the critical path?
i 20 Even though you couldn't predict for each case how '
l 21 long it would take, wouldn' you have to have some general 22 idea of what their resources are?
() 23 MR. CHO: Yes, but is that what your question is, 24 though? I'm not sure you're asking about the resources of l Aa-FMwd Reorars, lm.
25 the Appeal Board.
147 1 MR. MIT.3OLLIN: I guess my point is that under E. --
2 E. as now written, or even as rewritten, addresses only the 3 effect on the functioning of the boards. I just wanted to ask 4 whether you understood that to include the question of what 5 the -- how the board would function if it were on the critical 6 path.
7 MR. CHO: I'm not sure I understand.
3 MR. SPANGLER: I think a more basic question is 9 how would all this affect the publ.ic interest again. I always 10 come back to that point.
11 There may be several ways it would affect the public 12 interest . It may affect our own regulatory practice. It may 13 mean that'we would have to perhaps assign more resources to 14 the board or to modify our policies or rules so these things 15 wouldn't come up as frequently as they do now.
16 MR. MILHOLLIN: That's what I'm trying to get at.
17 Could we assign more resources to the board if it were on 18 the critical path, for example?
19 MR. PARLER: Mr. Chairman, on the critical path to 20 deal with what scope of issues? It would seem to me that it
/
21 would all depend on how the rule is changed.
22 If the rule was changed so that all issues that are O 23 reised by excege1one er by en egge11ete seerd su1 egonde heve 24 to be resolved before the decision can become effective, that Ace-Federd Reporters, Inc.
25 is one thing. On the other hand, if they're only on the.
148 j critical path to resolve issues that have been raised by a 2 motion for a stay or significant issues of law or policy or
~ . .
3 significant issues about alternative sites to resolve issues em
() 4 about sites where there is a split decision below, that's -
5 another thing.
6 So it would seem to me that in order to answer the 7 question and to express a judgment on it there would have to 8
be assumptions like that made.
9 MR. MILHOLLIN: Do we seem to be at an impasse 10 here?
11 MR. FRYE: Well, I would certainly concur with 12 what Bill has said. I think the question does require some
,r's 13 assumptions when you're considering the effect on the appellate V
j4 b ody.
15 MR. OSTRACH: What you're speaking about now are l 16 the answers to the questions, and that's quite true. I'm i j7 quite sure that 1.E. could only be answered if reviewers were
{
l 18 on the critical -- in other words, it is not enough to say if j l
19 reviewers were on the critical path. What you need to present !
20 is a scenario, if reviewers were on the critical path with 21 respect to site determinative decisions, what would be the 22 effect? Two-month average delay. If they were on the critical es
(_) 23 gith or they had to resolve every single issue, what would be 24 the effect? Four-month delay and rushing, thus reducing the Ace Federal Reporters. Inc.
25 quality of the decision, something like that.
I
149 j For present purposes we're trying to decide first 2 if it should properly be within the study, and I sense 1
3 unanimity that the impact of the immediate effectiveness rule
(~')
%)
4 on the functioning of the Appeal Board is properly within the 5 study.
6 MR. PARLER: I certainly agree with that.
7 MR. FRYE: I agree with that, yes. '
8 MR. OSTRACH: Secondly, do we think that -- what 9 data do we need? That was the question I think we're stuck 10 on.
11 The suggestion Gary had made was do we need data i 12 dealing with time periods, really, for decisions, I guess.
g- 13 MR. CHO: And that was the question I was focusing
()S 14 on.
15 MR. OSTRACH: That's really what the impasse is, 16 right, do we need to look at that data.
I k 17 MR. MILHOLLIN: Yes, the question is what are we :
18 going to look at in order to evaluate the question of to what i
19 extent the Appeal Board should be on the critical path. That's !
the problem. !!
20 i i 21 MR. SPANGLER: I would like to suggest that this !
22 paragraph has phrased has an implicit value judgment, that
() 23 putting the appellate process on the critical path would 1
24 necessarily reduce effectiveness.
Ace-Feder*J Reporters, Inc, 25 I can think that it would be at least a fair question .
i
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150 l
j to ask if it might increase effectiveness. That is to say 2 when things are drug out too long. We even find staff people
~ ~ '
3 in the laboratories who prepare environmental impact statements
~
O 4 ar ~^ t-have-you are in different jcbs, and you don't have I
5 the same focus of attention that you do when things are on the l 6 critical path.
7 So I don't think we should prejudge that it would 8
necessarily would lead to the reduction of effectiveness.
9 There may be other ways of relieving pressure on people, by 10 suppling more resources, perhaps, if that is the answer, if 11 that is the problem.
12 I think we still have to come down to finding out 13 what impact all this has to the public interest, one way or 14 another, and the various mechanisms that would alleviate ad-15 verse impact or magnify the beneficial impacts of modification 16 of our rule.
17 MR. OSTRACH: So what you're suggesting in effect 18 is that instead of the quantitative data that Gary suggested 19 that we get, that we look more for subjective data from the 20 Appeal panel members and litigants and participants to see 21 what they believe the impact would be?
MR. IRELAND:
22 Either that or throw the whole thind~
l 23 out.
24 MR. OSTRACH: We can't throw it out.
f Ace-Federd Reporters, Inc.
! 25 MR. CHO: Under different assumptions about changed g
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151 I I
I
,1 practices.
2 MR. MILHOLLIN: John, what data would be relevant, 3 do you think?
MR. CHO:- I kind of agree with Steve. I think a f) 4 .
5 more subjective analysis after we obtain the kind of informa-6 tion we've talked earlier about: What kind of reversals have 7 there been? What are the grounds for reversals, whether there 8 were' substantive issues involved in those reversals?
9 I think from those data we can drav some subjective 10 conclusions as to whether.there will be an impact if the 11 appellate body is on the critical path or not.
12 The assumption we 'd have to make- or know is what 13 kind of imm&diate effective rule would come out of this study. 1
.( )
, 14 If it stays pretty much as it is, I'm not sure there is any 15 impact whatsoever, even if the Appeal panel takes two years ]
.16 to resolve an issue.
17 MR. OSTRACH: Jus long as they affirm. If they i
18 reverse the Licensing Board's substantive decision but then s
19 go ahead to consider a forward cost or sunk cost analysis, 20 the immediate e iveness rule can control their entire 21 decision, i 22 Arguments llave been made that that happened in l
() 23 Seabrook,.and one can certainly conceive of another case, where 24 they decided Alternate Site 1 really was better, the Licensing' AnFMuu Rowwn, im.
Board was wrong, but it's been two years and they've dug the 25 1 9,+i +3--f.m ,m-r
j excavations, they've put in the concrete pad, and now it would 2
be ridiculous to move the plant to the alternate site.
3 In that case the immediate effectiveness rule was 4
.of crucial importance, whereas if the Appeal Board had been 5
n the critical path nothing would have been done.
MR. MILHOLLIN: It's also important how long it 6
7 takes to decide the case.
l 8
MR. OSTRACH: Right.
9 MR. MILHOLLIN: Because the sunk costs ar'e going 10 to depend on how long it takes. That's why I suggested that 11 we need to know how long it takes.
j2 MR. PARLER: A clue as to how long it might take 13 might be given to the time that it has taken the Appeal Board 14 to handle requests for stays of the effectiveness of initial 15 decisions in the past, 16 I assume that those requests were given expeditious 1 17 t reatment . If the rule cere changed and the Appeal Board was 18 placed on the critical path, maybe the time it took in the 19 past for stays would be somewhat of an indication of how much 20 time it would take in the future.
21 MR. CHO: I agree in the context of particular 22 Proceedings it would be relevant. I guess what I was question-23 ing earlier was whether just a mere statistical gathering of 24 the times involved in the proceedings would be particularly Ace Feder:I Reporters, Inc.
25 h elpful . That was my point.
c
10DJ j MR. MILHOLLIN: I think Bill's question is a good 2 one if we can relate it to what Mr. Roisman was talking about 3 this morning. Maybe there is an irreducible minimum time it s_/
) 4 takes to process any kind of a complicated issue on appeal.
5 If there is, then we should know about that.
6 MR. PARLER: In a complicated case in which they 7 have to examine the merits before taking action there is 8 certainly a minimum amount of time that is required, in my 9 judgment, to do an adequate job.
10 MR. MILHOLLIN: Obviously there is an irreducible 11 minimum. I'm just wondering how important it is to know what 12 that minimum is with the present staffing and whether it could
(~g 13 be reduced with a change in staff. '
%J l 14 MR. OSTRACH: I think it might be important to dis- l 15 tinguish between two kinds of decisions. What Bill was dis-16 cussing would be very important for consideration of those I
17 optionsthatwouldasktheAppealpaneltomakeapreliminary--j 18 guess the Appeal panel to make a preliminary determination 19 before effectiveness would ensue, some sort of stay or stay-like 20 decision --
21 MR. MILHOLLIN: Yes, I recognize that.
22 MR. OSTRACH: -- where they're not really resolving i
()
fm 23 the issue.
24 MR. PARLER: Right.
Aos Federd Reporters, Inc, 25 MR. OSTRACH: If the question were -- I mean a body i
- . ~ _ - - - -. -_ --- -. - - . . . . - . - - . - . _ . _ - .
I 154 I
9 just works differently if they're just looking at likelihood 2 f success and immediate injury than they do if they have to 3 decide something to their fullest. satisfaction. That un-l 4 doubtedly takes longer, and it might not be as tightly bunched -
5 as a stay decision.
l 6 I would have a feeling somehow that a stay decision ;
! can be--as you're indicating, Gary, there is a sort of period 7
l 8 f time it takes to make a stay decision, and agonizing over 9 it doesn't improve anything; whereas merits decisions, I think, 10 vary a lot mdre, certainly depending on the issue presented 11 but also the difficulty of it.
12 MR. MILHOLLIN: Also the precedential effect it's l 13 likely to have would tend to increase the time necessary to 14 consider it.
l l 15 MR. OSTRACH: Right.
16 Do the people who are to be working on 1.E. have l 17 some feelings that they could start doing something? l 18 MR. MILHOLLIN: You're one of them. Another one l 19 is John Frye, and the lead is John Cho, I believe.
20 MR. OSTRACH: John?
21 MR. CHO: I agree time is certainly relevant, but 22 again I'm not sure how helpful just a broad canvassing of the i
O 23 eime it tekee for every eggee1 to ee decided wou1d se.
24 MR. OSTRACH: What about some looking at mere Ace-Feder:8 Reporters, Inc.
/ 25 statistics, not exhaustive but some look at statistics, with <
' 155 1
particular focus on the timing of whatever become the 2 laboratory cases that we do fold into the proceeding, and 3 supplementation by subjective interviews of Mr. Rosenthal
() 4 and leading litigants on both sides, including Howard Shapar -
5 and people like that?
6 Does the group as a whole feel that would be a 7 sufficient data base for our consideration of 1.E.?
8 MR. CHO: it sounds reasonable to me.
9 MR. FRYE: It does to me.
10 MR. OSTRACH: That's 1.E., then. ,
l xxx 11 MR. MILHOLLIN: The next item on the memo is 1.F. ,
I 12 Again I suppose, under what we call the Sege interpretation, ;
/T 13 we can ignore the first sentence perhaps, which calls for a V
14 conclusion of rather wide magnitude.
15 MR. SEGE: Well, I don't know. The first question 16 isn't conclusionary. It's what is the list of possibilities, 17 options, concerning which conclusions need to be considered.
18 That could be interpreted as at least partly a factual question.
19 MR. MILHOLLIN: Yes.
20 MR. SEGE: And there is some -- a partial list is 21 provided by the questions that follow, A partial list of the 22 functions is embodied in the questions that follow.
(D sd 23 MR. PARLER: Of course, the combinations of options 24 that one could come up with are almost unlimited.
Ace-Federd Reporters, Inc.
25 Miller Spangler in his paper has come up'with any c
56 1
i I number of options and suboptions.
2 I happen to have this topic assigned to me, and 3 it'doesn't make any. difference. If the Group'wants options Y. -
.V '4 generated now, I-can generate options. -
5 It does, however, seem to me to be premature at >
6 this' point, before we have had much collegial discussion and 7 .before we have gotten any data to start generating options.
8 The option on the one hand would be to let the i
9 rule stay as it is. An option on the other hand, the other 10 extreme, would be to do away with the rule completely. There ';
II a re a lot of op'tions in between, some of which are mentioned 12 in the-1.E. i 13 Would it serve any useful purpose to reduce what I just said to writing and to ela~ borate on it?
~
14 15 MR. MILHOLLIN: You make a good point. I suppose 16 for organizational purposes we have to say something about 17 it in our preliminary report, in our interim report.
18 MR. OSTRACH: It could be something as little as 19 the Study Group understands that there are a wide range of 20 options and intends to consider as many options representing 21 the entire range and as many suboptions as appear to be useful.
22 .MR. . PARLER: For purposes of something to be put 23 in the interim report, that's one thing, which I think that l_ 24 we could perhaps reach agreement on, if not at this meeting l Amfeders Reporters, Inc.
l 25 certainly without too much deliberation. c
157 1 On the other hand, to come up with a complete 2 set of options which would be worth the time of our delibera-3 tions and analytical considerations, that's another thing, m
f
) 4 That's the point I was trying to make. -
5 MR. SPANGLER: I think it's a very good point, Bill.
6 You referred to my_ characterization of this, and let me say 7 that just because one can think bf lots of options doesn't 8 mean that -- I hope no one interprets that to mean I'm pre-9 scribing that we consider a large number. I think if you 10 rea'd very carefully what I said is if you start doing this it 1 11 becomes clear rather rapidly that the very problem in front 12 of us is how to constrain our analysis of. options to something
(- 13 that's manageable for our Group.
V) 14 Perhaps what we might wind up doing, just as food 15 for thought, is in our final report to the Commission say, 16 "Well, there was a wider list of options. These were some 17 of them. For various reasons we did not direct our attention 18 tocil of them. We wanted to concentrate on these options."
19 I think it's imperative that we go through this 20 larger mental process of looking at a wider scope of possi-21 bilities and consciously deciding what we're going to focus 22 our attention on.
_m) 23 MR. PARLER: Mr. Chairman, a lot more is involved ~I 24 than just the time, the time for delaying the effectiveness Ace-Feder::: Reporters, Inc.
25 of decisions. The time is one of the points that is referred j
fi 158 l
l 3 to in the example in F.
l 2 Another. approach might be shifting the burden of l
3 Proof, as was suggested this morning by someone in the audience.
() 4 Regardless of what the timing of the initial decision -
1 5 is, it would seem that the criteria that would be applicable '
6 would be very important. If the criteria are such that they 1
7 are very difficult to satisfy, that's one thing. If, on 8 the other hand, the criteria are more easily satisfied -- for i 9 example, if the criteria for either staying or going ahead )
l l
10 were the presence or the' absence of a significant policy or
- 11 legal question, that's another thing, which is quite different 12 from the criteria which are now in Section~2.788 of the rs 13 Regulations. 1
(-) {
14 Because of these interrelated considerations, 1 15 that's another reason why I believe it would be premature to 16 start developing a list of options at the present time.
17 MR. OSTRACH: One final point,'although it might 18 well be beating a dead horse at this point.
~~
Options are a subject, I Ehink, particularly
~
19
~
20 appropriate for public comment, since it makes little sense ;
21 to propose _or recommend an option that applicants and inter-4 22 venors don't feel is a realistic or useful one. It is rather
) 23 important to see what people believe are significantly dif-24 ferent options rather than us going through a law school Ace-Federd Reporters, lu, 25 exercise and oermuting possibilities.
l
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159 l
MR. PARLER:
j I think Steve's point is a point that l
2 can be well made in the section of the interim report that 3 talks about the general range of options that we have and
() 4 that we're thinking about. -
5 MR. MILHOLLIN: So I take it, then", there is 6 agreement that we, as I guess I originally suggested, dis-7 regard the first sentence in this 1.F.?
8 MR. SEGE: Well, I would feel comfortable in spite
'9 of what has been said -- and I certainly think that what Bill 10 and Steve said are very good points -- but in spite of it I 11 would feel comfortable with an iterative process whereby we 12 at least sketch out some significant options that we can i 1
('T 13 discern now as a starter, which would certainly not foreclose v
14 Possibilities for later.
15 The way the question is phrased, what are the main 16 options, I would concentrate on that word " main" so that we 17 don't end up with a large list of options but a few signifi-18 cant ones, and sketch them out without detailing them at 19 this point.
20 That might even be uscful as a starter for getting 21 public comments. Sometimes one can get public comments 22 better if one says that you're thinking in a very preliminary 23 way along the lines of these four main options and what do 24 you fellows think, rather than just start out with completely Ace-Feder::t Reporters, hic.
. 25 carte blanche.
1 160 j So I ,ould feel comfortable with doing something 2 minimal with respect to the first sentence.
3 I notice that OPE is down'as a helper on this, and
() 4 'I can volunteer to provide suggestions to Bill as the lead 5 on this.
6 MR. PARLER: Mr. Chairman, the reason why I engaged 7 in the discussion and tried to make the points that I made was
~
8 not necessarily because I was lacking in imagination as to J
9 what the options should be, but I raised the question as to 10 whether it would be profitable or beneficial to this Group o 11 at' this time to come up with a series of options.
12 If it's just a list of options that we want, rT 13 without going through the pros and the cons and the value V,
14 impact analysis of each, perhaps it could be beneficial and 15 wouldn't be too much a waste of time. .That was my only point.
16 MR. SEGE: What Bill said is all I had in mind.
17 MR. MILHOLLIN: You could do that within the next 18 couple of weeks probably.
19 MR. SEGE: Yes. Couple of days.
20 MR. OSTRACH: That would have one benefit relevant 21 to the point I mentioned before. It would perhaps serve to 22 guide and channel public comment. -
'\-r-)- 23 Rather than forcing everybody in the outside world 24 to go through the same imaginative game and come up with.
Ace Federal Reporters, Inc.
25 essentially list that we have, it would let them focus on things l
l
161
- that are not obvious to us. Perhaps it would drive them in 2 the direction of coming up with creative options and alterna-3 tives. Also, it would give the public a preliminary oppor-l i () 4 tunity to comment on what they see as the advantages or dis-5 advantages of a specific option. They would, of course, have 6 many other opportunities to comment, but it can't hurt to get 7 them thinking about option 2 and option 3.
8 MR. PARLER: How does it visualize that we would 9 get this information to the public? In our interim report 10 to the Chairman or in a Federal Register notice, or what?
11 MR. MILHOLLIN: In 5e~
h event we want comment before 12 we --
{} 13 MR. OSTRACH: I was not planning on getting comment 14 before, other than through written comments made on meeting 15 transcripts or public statements. I was not planning on 16 getting comment before the interim report went to the Commission. !
l 17 I would expect that the interim report would be 18 given to the Commission. I imagine its length would be such 19 that we wouldn't want to publish it in the Federal Register, 20 although that depends on its. length. We'd certainly notice 21 that it was available for comment, and then we would get comment 22 on the report.
( -'
23 A celieve we had said that -- the Commission said 24 that in its notice on public comment. Yes, on page 7 of the Ace-Federal Reporters, Inc.
21 {
April 5th memo it said, "Public comments following publication
162 i of the interim report will provide further opportunity for 2
Public participation." That's what I had in mind.
3 MR. MILHOLLIN: The other parts of 1.F. are simply l c( 4 statelnents, or questions I guess, which have to do with data --
_ _ _ _ _ _ . . _ _ . ~ . _ _ , _ _ _ _ __ __
5 well, perhaps that's not an accurate representation of it. )
l 6 The questions are more specific in that they don't
, 7 ne'.:essarily comprehend other items within the memo.
l l
8 MR. PARLER: The other questions in 1.F. , it seems l l
9 to me,, require that the information be received from appli-10 cants. -
11 MR. COLLINS: I think'it's just a listing, isn't 12 it, of suggested options? It starts off with "For example."
O "" "^^'""' *"" """*'' " *"" """' ** *"-
14 MR. OSTRACH: I think it's preliminary to what l 15 George says he's going to try to compile, which is just a i 16 listing of the various options.
17 Anything more, any substantive analysis, is again 18 the ultimate question before us.
19 MR. MILHOLLIN: Very well.
20 MR. PARLER: That's how we should perceive, then, 21 that these questions are illustrative examples of options?
22 MR. MILHOLLIN: It occurred to me that it would 23 be important for us to identify infbrmattion items which relate 24 to these options listed, if they are options, now, in con-
-~
4 .r.o.r:3 n. pori.e.. Inc. . . . . . . _ - . -
25 nection to this 1.F., if these aren't repeated later on.
L
163 I Do you follow?
2 MR. PARLER: I don't.think they are repeated later The closest connection of these questions to anything 3 on.
.o() 4 that I recall, either.in the April 5th memorandum or in the 5 discussion here, is the earlier discussion that we had about 6 the impact of the change in the immediate effectiveness rule 1
7 on the applicant's planning and decisional process. Isn't 8 that what these questions relate to?
9 MR. MILHOLLIN: They_could be interpreted as 10 applying to-applicant planning, or they could be interpreted 11 as applying to our internal personnel needs or the manner 12 in which the boards function.
13 MR. PARLER: I thought that information was going 14 to be solicited under 1.E.
15 MR. MILHOLLIN: It could very weli be. For example, what would be gained and lost by delaying. effectiveness of 16 i 17 a board decision by 10 or 15 days to allow parties to prepare
. 18 tay papers? One can interpret that as requiring data which 1 l' would show whether you could decide a stay within 10 or 15 20 days. I'm sorry. -It doesn't contemplate that the stay would 21 be filed within 10 or 15 days, does it? Well, until the 22 Appeal Board or the Commission rules on a stay, for example.
( 23 MR. PARLER: Just to postpone the effective date 24 of the decision for 15 days so that stay papers could be filed w res d n.s= ws. lac.
25 within'that time. That's the way that I understand that.
% ,. , -4 - . - - , , -c - - ,-,> - - ,
164 1 MR. MILHOLLIN: The next sentence, for example, 2 refers to delaying effectiveness until the Appeal Board has 3 ruled on a stay motion.
rm
() 4 MR. PARLER: It depends on how long it takes to 5, rule on the stay motion.
c 6 MR. MILHOLLIN: Exactly, My point is that that 7 doesn't -- that the data necessary to address that issue is 8 not data which is uniquely relevant to applicant planning.
9 It could relate to our internal capabilities here.
10 MR. PARLER: An applicant could well say that until '
11 and unless they know how long it takes an Appeal Board to rule, 12 that certainly would have a significant impact on their plan-13 ning decision to go for a nuclear plant license because of the 14 u neertainty and unpredictability of the licensing process.
15 MR. MILHOLLIN: How do you feel about generating 16 information necessary to say how long it would take the 17 Commission to rule on a stay in connection with this item?
18 MR. COLLINS: That's one of the options we come 19 up with. I'm looking at those questions as suggestions for 20 us now. If our list incorporates these, then we should in-21 vestigate them thoroughly, but not just because they're on 22 this paper, on this memo here.
O)
N- 23 MR. PARLER: That's an option, but the questions 24 Ace Federti Reporters. Inc.
a re preceded by the words, "For example, what would be gained I
25 and lost." That seems to me to require an evaluation of these
165 I various options.
2 MR. COLLINS: I look at them as just as an example.
3 If they appear on our list that's going to be drawn up by
'O kJ d George, I guess, then yes, we'll consider what will be gained 5
and lost from each one of the options that we develop, not 6
what J.is paper is suggesting.
7 Is this right, George?
8 MR. SEGE: I think that unless we tell the Commission 9
that we want to delete'some of these questions from our scope ;
10 we are obligated to eventually answer all of them, all of the
' parts of this 1.F.
I2 Il But for now we don't have to answer the questions.
13 All we need to do now is to discern what information has to Id be brought together to help us develop the answers. That is 15 all that we need to bite off at this point. j 16 MR. CHO: And on that point, aren't we apt to get I7 the answers to these options on che information that we've I0 already decided that we would need to answer the other questions that have already been discussed?
20 MR. IRELAND: Item C. above. You've got to know 21 what the options are before you can know how to consider them 22 in terms of potential delays and the impacts on various things.
' 23 MR. PARLER: Precisely. That's why we deferred l.C.
Ace Federal Reporters, Inc.
MR. MILHOLLIN: Yes, that's why we deferred 1.C.
.- . . ~ . - . - . . . -. . - . - - - . . - - - .
166 j If in 1.F. George is going to draft a list of possible options, 2 the question'then is are the people who are responsible for 3 1.F. going to also indicate what information will be necessary
'() 4 to answer these other questions now?
5 MR.,PARLER: That's the question.
6 MR. MILHOLLIN: I take it that George would agree 7
yes.
8 MR. SEGE: I would think that for now we would not 9 delete any of the other questions within paragraph F., but 10 to assume that in our final report all these questions will l
11 be answered and that for our informaItion gathering task now 12 w'e should gather information needed to go to those answers. )
13 I don't see any of these questions at this time l 14 as not being good questions for us to come to grips with in 15 the course of our 9-month existence.
16 MR.'CHO: hhe question is do they raise the need 17 for additional information we already haven't said that we 18 would need.
19 MR. MILHOLLIN: Have we agreed that we're going to 20 look at information which tells us how long it would take the 21 Commission to decide a stay, for example?
22 MR. PARLER: I haven't heard that discussed. If
) 23 ti.at information is needed, who is going to get it?
24 MR. MILHOLLIN: I was hoping we could talk about AwFWwal Roorwrs, inc. i 25 that while we're on this point.
i I
167 l l
j MR. PARLER: So do I, especially since the point 2 is assigned to me.
3 (Laughter.)
() 4 I'm not in position to find out from the Commission 5 how long it will take them to act on a stay.
6 MR. MILHOLLIN: Is there any expression from anyone 7 here on that subject?
8 MR. SEGE: I would think that the General Counsel's 9 Office might be in the best position to develop informacion 10 on that subject. I think when Steve comes back he'll be 11 delighted to hear that.
l 12 MR. MILHOLLIN: Shall we all agree in his absence 13 'that we'll give him that job? l V(N _ . _ _
14 MR. PARLER: How about the Appeal Board?
15 MR. MILHOLLIN: What about until the Appeal Board 16 rules? There are a lot of fairly tough questions in there, 17 it seems to me. We also have until the Appeal Board rules 18 on the merits.
19 MR. PARLER: Really, the answers to those questions 20 would have a considerable influence on the reasonableness 21 of the alternatives that are developed.
22 MR. FRYE: I agree.
f')
(/ 23 MR. SPANGLER: Certainly does.
24 MR. PARLER: This certainly is a very good example Ace Federal Reporters, Inc.
25 where the admonition that we received this morning, to get to,
16hA_
the information before'we started to deal with issues and ;
s lutions, would be very helpful.
2 MR. SPANGLER: On the other hand, I think if we 3l have our sights on a six-month study and not a twelve-month or_ eighteen-month study, I: think there is some optimum point beyond which we should not go in structuring our task, or l
we'll be foreclosing the option ~to give very hard type recom- j l
1 m endations 'to the Commission. We'll be giving them a lot of 8
~
"l s of t words and "You go and study this and this and this" be-9 -
c ause we didn't study these things , q 10 jj I would think that the Commission would hope that
)
we could dispose reasonably of a number of questions that 12 q g are involved here or closely related to these questions. If D
g we don't set our sights on that six-month time limit-- and Itaybe it's unrealistic to even think of six months. If so, 15 we ught to tell the Commission that this is a twelve-month 16 g study you've imposed on it. But if we're playing the game of six months, then I see a warning flag about going too far in i
39 gathering information before we focus in on what kind of 20 re mmendations. i i g Even i# it's only a reasonable guess as to what w e ' re going to be doing, I think there is some point in time I g
O 23 where we've eoe to meke thet eteb. 1f edditione1 1 dees come 24 f rth to modify that, so be it, but I think we have to firm Aos.Federd Reporwes, Inc.
25 up structure at some reasonably early part of our process, i
l
168 j MR MILHOLLIN: We could concentrate here on the 2 question of what information do we need to answer the question.
3 For example, what would the effect be of postponing effective-() 4 ness until the Appeal Board ruled on the merits or until the 5 Commission rules on the merits. We can try now to decide that, 6 what we have to know or what would be relevant to find out 7 to answer that question.
8 MR. CHO: It seems to me that information like 9 what do applicants do within the first 15 days after getting 10 a permit, how much money do they spend. It's my understanding '
11 that that kind of information will be sought in connection 12 with some of 2e other questions that we need to look at.
MR. MILHOLLIN: Yes. Can we assume, then, that
(]) 13 14 you are going to collect the information which will tell us 15 what the impact on the Appeal Board would be?
16 MR. CHO: I'm not sure'it's a question of collecting 17 information now.
i8 MR. MILHOLLIN: Or stating what information is 19 necessary. The Appeal Board's own functioning, I mean, 20 irrespective of the applicant.
21 MR. CHO: Well, we can attempt to list some of 22 the information that we think might be relevant and see whether 23 i t's already covered under some of the other questions.
24 I guess what I'm trying to distinguish now is the i Ace-Federd Reporters, Inc.
25 question of. identifying the kind of information one needs and 9
16 8-A i j determining the task of actually gathering that information.
2 I think we ought to divorce the two right now.
3 MR. FRYE: Well, it seems *o me that we come back i
O 4 ee 1= to eae ame eice er ese re1 eve = e or ese 1emeta or time 5
it takes the Appeal Board to decida cases and whether that 6
could be shortened, that sort of thing.
7 MR. PARLER: If we determine generally that it takes I 8
the Appeal Board, for example, fifteen days or thirty days to 9
decide a stay, or the Commission an equivalent amount, that l 10 would be very relevant, it seems to me.
j) MR. .CHO: So you're saying, if that's the case, 12 obtaining information for tBn days or fifteen days may just 13 be a wasteful use of time and effort.
14 MR. PARLER: I didn't mean that. The ten or the 15 fifteen days that was talked about in this example was the 16 time to allow parties to file the request for a stay, and a 17 separate question is how long is it going to take the appellate 18 body to decide the stay request.
39 If we get information which indicates that generally
~
20 speaking it's X number of days, that would be a point that I 21 would want to focus on to decide whether that isn't a good 22 clue for some alternative to the present immediate effectiveness 23 rule. For example, to delay the effectiveness of the decision 24 for X number of days.
Ace Feder:J Reporters, Inc.
25 MR. CHO: What kind of information do you think now
169 l ; we might be able to get to make a meaningful decision on that question?
2 3
MR. PARLER: I don't have the slightest idea myself.
- [J~'T
^ MR. CHO: This is the problem, Mr. Chairman.
5
. OM: Well, someone has to udenake 6
this task. So far it's been assigned to ELD, I guess, as the 7
lead, with help from DPM, the Appeal Board, Office of General unsel, and OPE.
. 8 J
9 I suppose it's appropriate to ask whether you all 10 are comfortable with this assignment, however difficult it i 11 may be.
12 MR. PARLER: Mr. Chairman, I am comfortable with r's 13 the part of the assignment that talks about developing options.
(_)
ja The effect of the delaying the effective date of a decision 15 f r ten to fifteen days to allow parties to prepare stay l l
16 Papers, I would assume that that is the kind of information 17 that could be solicited in a questionnaire which we've been 18 talking about sending to applicants.
j9 But beyond that, how long it would take the 20 Commissioners to decide a stay request, how long it would take 21 the Appeal Board to decide a stay request, I am not optimistic 22 a t all that I could get that kind of information. It would r3 i / 23 seem to me that there are others that are in a much better l 24 position than I to try to get the information.
! Ace-Federd Reporters, Inc.
25 MR. MILHOLLIN: Who would you recommend?
l
170 l
MR. PARLER: Well, some recommendations have l 2 already been made. I would defer to others in that regard.
3 MR. SEGE: One possibility, Mr. Chairman, would be l
('] 4 to make it primarily historical, not how long it will take for 5 each level to act on stays but how long it has historically 6
taken. That may be easier to do. Possibly John Cho could 7 determine how long it has in the past taken the Appeal Board 8
t act on stays.
9 The Commission I don't think has had too many 10 ! stays to act on, so there I would think that Steve could de-11 termine how long it has taken the Commission to act on the 12 few stays that have been before them to act and possibly con-m 13 sult with the Commissioners' legar assistance to add some N) j4 "guestimate" as to what that implies for estimates of future 15 times for Commission action.
16 MR. PARLER: Mr. Chairman, if it's historical in-37 formation that we're looking for, that's quite another thing.
18 My earlier remark about the difficulty of getting the infor-19 mation did not apply to the difficulty of getting historical 20 information but to the difficulty of trying to predict in the 21 future as to what the timing would be. I'd like to make that 22 clear.
23 MR. COLLINS: Are there any Commission procedures, 24 Appeal Board procedures, that contain mandatory times within Ace-Federal Reporters, Inc.
25 them for requesting stay and how many days do they have to
r 171 3
appeal to the Commission if they're not satisfied with the 2
Appeal Board decision?
MR. CHO: For requesting, yes. But once it's --
3l 4 MR. FRYE: Once it's in-house, that's another 5
question.
6 MR. CHO: Then there is no spacified limit.
7 MR. MILHOLLIN: I wasn't suggesting that the people 8
who develop the statement of what information will be neces-9 sary and how it should be obtained would necessarily be the 10 PeoPl e who would have to obtain the information. I'm simply )
l 11 suggesting that now we need to know what we reed to find out, ]
l 12 where the information is and who we could rely upon to get '
13 it for us.
14 MR. PARLER: That's another thing. I certainly 15 think that it would be desirable to try to get not only the 16 historical information but the best predictions as to what i 37 time it would take on some of these options.
18 MR. MILHOLLIN: Yes, it would seem that predictions 19 are going to be essential for any kind of rational decision-20 making by the Commission. The Commission has to have some 21 knowledge of what we think it would take for the Appeal Board 22 to decide, within X or Y or Z time.
23 I suppose the question I'm asking is where can we 24 find that out, if it can be determined? To what extent can Ace-Federal Reporters, Inc.
25 we determine that? Where would we have to look?
. ._ ., --. - ..- . - . . - - . -~ . . . . -
j Does that sound like something you all could do?
2 MR. PARLER: Yes, Mr. Chairman, the historical 3 data as to how long it has taken the Commission to act on stays in the past and how long it has taken the Appeal Board 4
I 5 to act on stays in the past is something that is in the 6 record and it could be ferreted out. Certainly you could 7 look to us or to me to do that.
l 8 Predictions as to the future, as to how long it 9 would take the Commissioners to act on these matters, how 10 long it would take in the future the Appeal Board to act on i
11 stay motions, is something which I think I would like to defer l
12 to somebody else.
l l
13 MR. OSTRACH: Mr. Chairman, a_.useful suggestion 14 _might be to recall the adjuration at the beginning of all of l
15 the assignments, which is that in considering each of these l 16 questions the Study Group should consider the experiences and 37 practices of other agencies with similar responsibilities 18 and functions.
19 It might be possible to look and see how the 20 intermediate appellate tribunala perform at other agencies.
21 I recognize that would be data which would be even more dif-l- 22 ficult to obtain, and therefore we would be, I expect in most 23 cases, forced to rely on a questionnaire or an interview with l
24 someone in FCC or the FERC or something like t'lat. But at i Ace Federd Reporters, Inc.
25 least it might give us a feel for the range ot possibilities.
I I
- m. _ = - . - _ _ _ _ . _ _ _ _ . _ __.. _ . _ _ . _ . ._ _.. _ . . - _ . - . _ __
173 I
j MR. PARLER: It's my understanding in that regard 2
that most other agencies, their initial decisions do not i 3
become effective if exceptions are filed. I don't know 4
whether my understanding is entirely correct or not.
5 I certainly agree with you, Steve, that it would 6 be worthwhile to get the relevant data that we can get from other agencies.
7 MR. COLLINS: The FDA has a time limit.
, )
9 MR. PARLER: What was that?
10 MR. COLLINS: The Federal Drug Administration has 11 a time limit from the time they get an application in until 12 they must make a final decision on it. That would be a pre '
13 cedent for establishing a blo$:k of time for review of these j4 contentions.
15 MR. CHO: Mr. Chairman, I would think that the most 16 we can do now in connection with this general question is to 37 see what our historical data are.
18 MR. MILHOLLIN: Very well. Shall we leave it at j9 that, then, for 1.F.?
20 Steve has brought up a point which doesn't appear 21 on this -- it appears on this memo, but we haven't made an 22 assignment. We haven't made a task assignment to anyone to O 22 survey other esencies . Wou1d this be en epprogriete e1me, 24 since we have it fresh before us, to think about that?
Ace Federd Reporters, Inc.
25 MR. OSTRACH: I hesitate to admit this, but as part I
, 174 i
l-
- of my responsibility for conducting the Appeal Board study 2 I have been requested by the Commission to consider the prac-t l'
3 tices and functioning of appeal boards in other agencies.
4 I expect that I will have a leg up on gathering data about j how other agencies function.
5 6 If it is the consensus of the Study Group, I might 7 be able to provide some information about timing. It should l
8 be understood that unless I'm very fortunate and find some 1
9 agency that's already done this it will be essentially a non-L 10 scientific and perhaps not particularly quantified survey, 11 but I will get what I can get and ask them to do what they 12 will do.
l 13 MR. SEGE: I think we ought to snap up Steve's O j4 offer.
15 MR. MILHOLLIN: I don't hear any objection to that.
~
16 (Laughter.) I
)
j7 MR. PARLER: By the timing, Steve, you mean the 18 timing that it takes them to resolve appeals? I assume you l
39 will also inquire as to whether they have anything like our 20 immediate effectiveness rule.
1 21 MR. OSTRACH: Oh, yes, and hopefully there will be l
22 some discernable pattern, that agencies that do not have ^
1 O 22
- ==****** e"' **"*"*"" ** *"*** "S*" ""* ""***"S '"*" "
i 24 the critical path makes it shorter or something like that.
Aos Federet Reporters, Inc.
25 MR. MILHOLLIN: Have we succeeded in completing
]
1 i
i
_..____..._.___.__.___.._.__._____._..___.._._.m_. . _ .
175 #
l r
y Number.17 .
i l
(No response.).
2 APParently we have.
.3 O ,
MR. riRtHR: r. Chairman, is 1.C. sti11 eetne to he deferred? Is that the idea? ,
MR. MILHOLLIN: I gather.that that was the con-f 7
sensus, that' we defer 1.C. Is that not correct? l 7
MR. CHO: By defer, do you mean deferring in
-- --- -.- _ i beginning to gather information?
- g. MR. MILHOLLIN: Yes. .
jj MR. CHO: That's all you inean?
12 MR. MILHOLLIN:- Yes. I'm not suggesting that we
.should never answer J..C.
Q 13 l 9 MR. CHO: The-reason I asked that clarification
! 15 is that we're talking in terms of presenting a scope paper g to the Commission. We're also speaking in terms of obtaining j7 information and also speaking in terms of identifying ;
inf rmation. I'm not sure what part of what I've said is 18 being deferred at this time.
39 l
MR. MILHOLLIN: That's a good point.
MR. CHO: Of course, it's understood that we will 1 have to answer these questions ultimately'in any event.
22 1
- y un erstanding is that h stays in 23
(
4 24 the scope unchanged,.but it is not part of the immediate werk i Aes Feder::5 Reporters, Inc.
25 'Pl an.
f m__. . . . _ . - -,, . _ . . _ _ ._ . _ . _. _ . . _ . _
= . . . ~ . - . ._. ... . - - . . . .
176 l l
j MR. COLLINS: Correct. !
2 MR. SEGE: We don't do anything right now. ,
l 3 MR. MILHOLLIN: Perhaps for purposes of common i
( 4 understanding we should on each one of these ask three dif-5 ferent questions: Should it be in the scope? Should we take 6
it up immediately in our work plan? Third, what information i 7
should we_go after?
8 Does that sound agreeable, so we know what we're 9
talking about?
10 MR. FRYE: Some of C. might be appropriate for a '-
11 questionnaire.
12 MR. PARLER: It's not entirely clear to me why C.
13 should be deferred from a questionnaire.
ja MR. FRYE: I think you could profitably get the l
views of not only the utilities but the intervenors on some 15 )
16 of those questions perhaps.
j7 MR. CHO: I'd like to raise just one caveat in 18 connection with questionnaires. I think before we decide on 19 going out with any questionnaire we ought to have fairly well 20 in' mind that it's comprehensive, that that's the kind of i
21 question we want to ask and the kind of information we will 22 need.
t h 23 What I'm trying to say is we should avoid having 24 to go back to people two or three or four times.
- Ace Federal Reporters, Inc.
25 MR. SPANGLER: There are certain procedures that
177 j one has to go through to get a questionnaire. You have to 2 get it authorized, do you not?
3 MR. COLLINS: If you ask more than ten people,
( 4 you have to go through the Office of Management and Budget 5
to get it approved.
6 MR. .SPANGLER: Right.
7 MR. PARLER: Under the Federal Reports Act of 1942.
8 MR. COLLINS: Yes. So you've got to be careful 9
with a questionnaire. I'd rather have utilities and others 10 comeinanbmakea ouple of statements to us.
11 MR. CHO: It's not something we're in position to 12 go out immediately with. I think it's something that will 13 have to be deferred until we have a pretty good pic*ure of (oj ja where we're going and what we need before we start sending 15 out questionnaires.
16 MR. MILHOLLIN: Shall we leave 1.C. behind us, then, 17 for the time being?
18 MR. OSTRACH: Before we rush on to Question 2.,
19 are we still planning on having a 1.G. which deals with 20 applicants' planning and decisionmaking and the relevant 21 importance to applicant of the various uncertainties? And I 22 guess that we just recently created a 1.H. dealing with 23 evaluation of other agencies with and without immediate 24 effectiveness policies. You might want to note that on what-Ace-Federal Reporters, Inc.
25 ever records you're keeping.
.178 j MR. PARLER: Mr. Chairman, although I agree with 2 the points that John Cho has made, I would just like to men-3 tion again that it seems to me thar. the issue that is raised
/~ I
(_)s 4 by the new Question 1.G. fits right in with the Question 1.C.
5 It isn't entirely clear to me at this point why we are moving 6 ahead with 1.G. and deferring, at least for the moment, on 7 1.C.
8 Having made that comment, Mr. Chairman, I don't 9 wish to delay things any longer.
10 MR. MILHOLLIN: Unfortunately, we haven't decided xxxxx 11 with respect to 1.C. -- I'm sorry, l.G., what we're going to 12 do with it. All we've decided is that it should be within
(~') 13 the scope.
V 14 And you're quite right that according to our 15 normal procedures, which we've I guess established by experi-16 ence here, that we should talk about that, whether we are 17 going ahead with it now or not.
18 MR. OSTRACH: Well, it is clear that we do not 19 Pave that data at hand inside the Commission, I think.
2c MR. MILHOLLIN: Is that clear?
21 MR. COLLINS: I would say so. How they make their 22 decisions versus the licensing process in toto.
((')/
23 MR. SPANGLER: I think we have quite a bit of 24 insight into that. The answer is not very encouraging, however.
Ace-Federal Reporters, Inc.
25 It's highly variable how they go about these things.
I
179 i
! j The other disturbing thing about it is that it's 2
our obligation to bring into account other decisional factors 3
that the applicant may include.
() 4 The CEO, for example, in its sixth annual report, 5
sai'd that national interests as well as regional interests 1 6 have to be considered. Most of the applicants do not worry very much about that consideration. Their primary concern 7 l l
8 is their own rather narrow interest and the add-on of environ- I 9
mental things as the result of the National Environmental l
10 Policy Act.
l 11 I'm just suggesting that it is a larger question 12 even than surveying what the industry decision is. We ought l
r~ 13 to be developing an overall decisional philosophy of our own (g; ____.
- ~
ja and find out just what is the variability of practice that l
15 industry now has with regard to certain key aspects of the l l
16 licensing process and what it means in terms of our changes 17 in administrative procedures or regulations in terms of our l
18 objective of making the licensing process more effective, l 19 to reduce delays, to increase public confideree, and those l
20 kind of purposes.
21 MR. MILHOLLIN: We have to decide now for our own l 22 purposes whether we're going to pursue this or not from the
<x
(,) 23 p int of view of information gathering immediately or whether 24 we're going to put it off.
Am.Feerd Reporters, Inc.
i 25 Could I ask you to respond to that? I l
180
.j MR. SEGE: Mr. Chairman, it seems to me from what 2 Miller has said that we don't have enough in-house information to answer the question, but we probably know enough about it 3l
() 4 in Miller's division to compose a simple work statement that 5 could then be considered as a possible basis for getting a 6 very limited study of this made by a consultant organization 7 within a time frame that would suit us.
8 one p ssibility would be to ask someone, perhaps ,
9 Miller, to put together such a work statement.
10 MR. SPANGLER: Well, I was with you, George, up to 11 the point when you suggested going out to an outside con-12 sultant.
13 Our problem with dealing with outside consultants, L
14 on some of these very questions, by the way -- we have )
)
15 sponsored research in some of these areas, and sometimes it 16 takes six months to over a year for these people -- I'm not 17 imputing their intelligence or their research capabilities, la but it just takes a certain amount of rev-up time, if you 19 will, for them to get going on something. i l
20 MR. SEGE: It would have to be someone who has 21 worked with utilities enough and been intimately involved 22 in the planning processes of several utilities so that he
( 23 would be up to speed and could do it in sixty days. We would 24 ask for proposals, and it would be part of the work statement i AmFWmI Roomn, fm.
f 25 that we need a final report in sixty days.
i
181 I
MR. SPANGLER: I don't want to prolong the 2
description of some of the successes and failures we've had f-3l in trying to do this sort of thing --
(.,g) 4 MR. SEGE: It's not necessary. We all know enough 5
examples to know that they don't always succeed.
6 MR. MILHOLLIN: The question is simply could you 7
put together a work statement which would show what we have 8
.to do to get this information.
9 MR. SPANGLER: I think I could put a work statement 10 together, but I'm just suggesting that from the standpoint !
II of our managing a contract and getting the most out of it I 12 would think it would be better for us to complete the work l p) s.
13 statement in-house with the invitation of public comment 14 about what we're doing, not to make too ambitious a job of 15 it, by the way.
16 MR. SEGE: Do you think we can do the job in-house?
17 MR. SPANGLER: Yes, I think so. It's a question I6 of what level of accomplishment you're willing to settle for.
I9 I don't think it's feasible in this area to have ,
20 a study to end all studies.
It isn't that kind of a problem.
21 I don't think that would even be all that useful in terms of 22
() our purposes, because there is too much variability, as I've
(_)
23;i ndicated, to have a highly detailed and thoroughgoing study.
24 I Aa-Focerd Reporters, Inc. I think we could rather in a short amount of time 25
- sketch out a lot of the considerations. I have in my own
. - _ . - . ~~ . - - . _ - . . . __-_- - ~ . . . . . .. - - . - -
182 j papers that I've developed documented variability of utilities 2 in such things as need for power analysis and alternative 3
siting analysis, two key areas.
() 4 MR. MILHOLLIN: Could you perhaps consult with 5
some other people?
6 MR. SPANGLET.: The AIF and EPRI and a lot of these 7
people, yes.
8 MR. MILHOLLIN: Could you consult with one of the 9 other members of our Group with regard to perhaps identifying 10 s ome cases for study for this purpose?
11 If we decide, for example, to take six, eight, or 12 ten cases and study them, perhaps we could develop a work l 13 plan for studying the planning processes of these utilities 14 so that that would make the total study of those cases more 15 intelligible. If we also knew what their planning cycle was, 16 that would tell us quite a bit more about them, wouldn't it?
17 MR. SPANGLER: I don't know whether I would -- we're 18 getting back to the problem. Having said we could do something 19 that I think would be meaningful and useful in-house, I think 20 six or eight case studies would be too ambitious. That's my 21 feeling.
22 MR. MILHOLLIN: Could you in your work statement
() 23 suggest whatever you think would be feasible?
24 MR. SPANGLER: I could certainly take that up as Ace-Federd Reporters, Inc.
25 a near-term assignment and develop a work statement and
183 present it back and see what the Group thinks, and preserve 2
that judgment about where we should go after we get the work statement developed.
3
, MR. MILHOLLIN: Would you need support on that from anyone else here?
MR. IRELAND: I could help a little bit, I suppose, 6 ,
4 if you wish.
MR. SPANGLER: Sure.
8 9
MR. OSTRACH: Think of it, in addition to being a Work statement for the Group's use, as a potential insert to
- 3 the interim report to the Comniission as well as to how we intend to go about that aspect, that self-refined aspect of g the work. ,
g4 MR. SPANGLER: I think if a lot of it were done in 15 terms of subjective judgment this could be done more expeditiously 16 than trying to gather facts to document just exactly who g is doing what currently and that sort of thing.
18 MR. MILHOLLIN: Can we blast ahead into Question 39 2 here? Have we exhausted 1.G.? I don't assume we need to xxx g talk about 1.H., do we?
21 MR. OSTRACH: No, I will work on that.
g MR. MILHOLLIN: Well, we've succeeded in getting O u to Item 2. comments en 2.A.2 24 (No response.)
l Ace-Federal Reporters, Inc.
I 25 APparently it's self-defining with no questions.
I
184 )
I
)
MR. PARLER: It's self-defining, Mr. Chairman. It 2
kind of raises this sort of question in my mind. I wonder 1 3 why the first question is addressed to the merits of waiving rm (g 4 stay standards and not the broader question of whether the 1
5 standards themselves are the best ones to be applied.
6 Perhaps that question is raised later on.
7 MR. MILHOLLIN: It seems to be raised to some B
extent in B.
9 MR. FRYE: And perhaps E. I 10 I MR. PARLER: I think that research may reveal that ij the standards which we apply in 2.788, although widely followed 12 in the courts, are not uniformly followed in all of the 13 circuits.
m) ja Even if that were not the case, you still have the 15 question of whether those are the standards which are the 16 best suitable for our administrative process.
17 MR. MILHOLLIN: The present work assignments split 18 up these issues. Would it make sense to consolidate them 19 for purposes of information gathering?
I 20 The question is are we going to need the same 21 information for any of these?
22 Bill's point is that if you starc with A. you 23 automatically get into other subitems, and it doesn't maybe 24 make much sense for us just to look at A. independently. That's Ace-Federal Reporters, Inc.
25 how I understand your remarks.
a
[ 185 i L
l' 3
MR. PARLER: That's why I was trying to suggest, 2
Gary..
MR. MILHOLLIN: If that's true, and if the infor-3ll l 4 mation we're going to look for is going to apply to more than 5
one of these, then perhaps we should consider whether we would 6
1ike to combine some of these items.
7 Of course, if we combine them that makes an 8
enormous assignment, doesn't it?
9 MR. OSTRACH: It depends.
10 MR. SEGE: It shouldn't be any bigger than having 11 it separated. The same people could still contribute. It 12 doesn't become bigger by not splitting it up into pieces.
13 MR. MILHOLLIN: Would it make sense to agree first ja of all on what information we need with respect to whichever l
15 f these items we might take up rather than taking up the j i
16 items one at a time?
17 In my memo I think I listed some information I 18 thought would be useful to evaluate a number of these different i
39 subparts. Page 7, Item 6. These are simply informational l 20 items which occurred to me. It's quite likely that some of 21 them may not be phrased as properly as they might. It's quite 22 likely that members of the Group will think of others that 23 should be added.
24 I, first of all, identified the need to know'what Ace. Federal Reporters, Inc.
25 the present practice is in granting stays, since one of the l
186
) alternatives is to simply leave the standards as they are.
2 I suppose I've assumed that it might be possible to look at 3 all the cases in which stays have been granted since someone
() 4 told me sometime that there weren't very many. Is that 5
generally accurate?
6 MR. SEGE: I just remarked that my impression was 7
that the Commission had not granted many stays, hasn't taken 8
uP many stays. I don't know about the Appeal Board.
9 MR. FRYE: That's my impression of the Appeal Board 10 as well, that there have not been very many.
11 MR. PARLER: There have not been very many granted.
12 MR. MILHOLLIN: Yes, that's what I mean.
13 MR. PARLER: There have been more requests -- not ja too many requests, but very few of them granted.
15 MR. FRYE: Very few requests is my impression. I 16 could be wrong.
17 MR. PARLER: More requests, but not too many.
18 MR. FRYE: Yes.
19 MR. CHO: I would imagine there were a few more 20 requests than have been granted.
21 MR. MILHOLLIN: Would it be feasible, then, to 22 study the cases in which stays have been granted for purposes l
() 23 f identifying the present practice?
24 MR. PARLER: I think that's something that would i i Am-Fewal Roorters, Inc.
! 25 be essential information, at least from my standpoint. ,
l
187 l j MR. MILHOLLIN: And identify the grounds and so 2 forth?
3 MR. CHO: Aren't denials relevant, too? Maybe
()
4 they're even more relevant.
5 MR. FRYE: I agree. I think denials are relevant.
6 MR. CHO: That would require looking into all the l
7 cases where requests were made.
8 MR. PARLER: I would like to know, for example, 9 those instances, if any, in which there was a stay request 10 and a denial and a subsequent reversal on the merits of the i
11 issue that was relied on in the stay request.
~
12 MR. MILHOLLIN: Yes, that's Item 5 on my memo, I
\
rN 13 think, the effect of not granting a stay in the case of V
14 reversal on appeal.
15 MR. OSTRACH: Seabrook is certainly a shining 16 example of that. As Mr. Roisman pointed out today, they three 17 times won reversals. Each of those, I think, followed some i
18 period of time denials of stays.
19 MR. MILHOLLIN: That would be interesting informa-20 tion to have, wouldn't it?
21 I've separated in my memo this subject into I 22 guessdifferentinformationneeds[ hheeffectofreversing
() 23 the burden of proof I guess I've identified as a different 24 information item, and also the question of should present A .r.oer : Reporters, tre.
25 stay standards be altered, i l
, 188 At the risk of seeming to be in love with my own 3
mem , could I suggest that we.use that breakdown rather than 2
the one we.have-in the memo, or do you think=the one in the 3
O 4 e ere **e ce 1 i 1 e eeeter me. su
- rer ereemiz -
tional purposes?
5 .
MR. PARLER: For my purposes, the information in your outline would be more useful and would serve a more.use-7 ful Purpose than the arrangement under paragraph 2. of the
- 8 Secretary's. memo to Mr. Gossick.
9 10 It was your intent, Mr. Chairman, for your outline 11 to be a complete substitute for the paragraph 2. in that l
memorandum?
12 ]
I MR. MILHOLLIN: No, I was simply suggesting that, 13 ]
34 since the items in the outline supplied by the Commission 15 seemed to be overlapping and not related to information needs, g that we might at least begin our work toward getting whatever 37 information. we propose to gitner by starting with my memo. I 18 MR. PARLER: I certainly would agree.
39 MR. FRYE: I would, too.
20 MR. MILHOLLIN: So we have Item A. in my memo, xxx- g I guess, for discussion.
22 MR. PARLER: You had the suggestion for A.l., which 23 Mr. Cho made, I guess, to cover all stays, including those 24 that were granted as well as those that were denied.
i Ace Feder*
J Reporters, Inc. '
25 MR. MILHOLLIN: So we could add the words "and
+
189 I
a I denied" to Number 1?
2 MR. PARLER: Yes.
3 MR. MILHOLLIN: Okay. This is with the'under-4 standing that we're going to take these up only for the 5 purposes of developing some kind of a work plan, and it could 6 be that there are so many cases in which stays nave been 7 denied that it would not be feasible to look at them all, or 8 it might be a good idea to take selective cases.- That would 9 Ime reflected in whatever work plan we propose.
10 Second, on what grounds, whether the~ proponent II prevailed on appeal, whether in the cases reversed the stay.
12 was granted,:the effect of not granting a stay.
13
.( Then Number 6, which of the.present standards is 14 hardest'of the proponent of the stay to satisfy, that might 15 be more difficult to ascertain.
16 MR. FRYE: That's something again that I think 17 might be a good question to put to the ' people who have been 18 moving for stays.
19 MR. MILHOLLIN: That would be a good question to 20 ask the intervenors, wouldn't it?
21 MR. FRYE: Yes, the intervenors.
22 MR. MILHOLLIN: For 1.A., then, is it practical now l
)f 23 to'try to make a work' assignment for that?
24 hos. Federal Reporters, Inc.
I notice-that in the original assignment list Item 25 2 , g ,. , I think, is the closest to this, as I recall. Is that
r-190 1
- right?
2 MR. PARLER: Yes.
3 MR. MILHOLLIN: Item 2.G. asks, in the original 4 memo from.the Commission, how many stays have been granted 5 by the boards and the Commission and what is the length of 6
such stays.
_7 That was assigned to Bill Parler all alone. Per-8 haps that's not -- we couldn't probably transfer that assign-9 ment to the A. part of my memo.
10 MR. PARLER: Well, you could if you wanted to, I 11 Mr. Chairman.
12 (Laughter.).
13 MR. MILHOLLIN: Do I hear any volunteers on that ja subject? What is your pleasure on that?
1 15 MR. PARLER: I have a comment to make on it. It ]
1 16 would seem to me that there should be at least three other 37 offices that should have information of some kind on stay 18 requests that they have entertained and what the dispositions 19 were: the Commission level, the Appeal Board level, and also 20 the Licensing Board level. If such information is available, 21 more readily available than searching through the reports, 22 that certainly would be a big help.
23 MR. FRYE: As to the 'icensing' Board level, the l 24 easy way to do it is to simply ask the chairmen to refer us Ace-Federd Reporters, Inc.
25 to instances where stays have been requested.
- 1. J
ig{ -
l 1 MR. PARLER: That's perhaps a better example of 2
a step that could be taken to facilitate the information 3
gathering process, if whoever is assigned this mission is n
's_) 4 given help like that.
5 MR. FRYE: I'd be happy to do that.
6 MR. PARLER: I do not feel completely free to !
l 7
solicit the views of the board chairmen or the Commissioners.
8 MR. FRYE: I'd be happy to do that.
)
9 MR. MILHOLLIN: So could we -- Mr. Cho, vould you 10 agree to join in this effort?
11 MR. CHO: Certainly.
12 MR. MILHOLLIN: And Mr. Ostrach as well?
. ('N 13 MR. OSTRACH: Under the skilled leadership of Mr.
%-]
14 Parler.
15 MR. PARLER: What's that?
16 MR. OSTRACH: I said under the skilled leadership 17 of Mr. Parler.
l 18 MR. PARLER: I'm sorry that I asked. Excuse me.
19 (Laughter.) I 20 And I will go through the digests that I guess Oak 21 I Ridge has put out and also through the reports as a double-check.
22 MR. MILHOLLIN:
/~
Maybe I should say, I think we can
{
k_)x 23 assume that we can call upon other people in the Commission to
! 24 i AwFewd Reporwrs, inc, do work which will be necessary. Does that make you feel better?' l l
25 !
MR. PARLER: I think that's right, but, depending I l
192 l j upon where the request comes from, under whose auspices, it 2
might make a difference.
3 MR. OSTRACH: I agree with what Chairman Milhollin l
()
\
4 said. I believe that if we have a matter that any individual 1
5 believes he is assigned to do which is either outside of his 6 expertise or beyond his individual capability that the 1
7 appropriate thing to do is to refer the matter to the chairman, 8 and he can request the necessary assistance from the respon-9 sible staff member. And, if necescary, I suppo'e s he could ask 10 the Chairman to request the Director,of some division or 11 something to assist in the work that is being done.
12 MR. PARLER: I certainly agree with that in"connec-p 13 tion with this stay in$ormation. It would seem to be obvious a
14 to me where the most readily sources of information should be, 15 and we might as well recognize that fact right now.
16 MR. OSTRACH: I had in mind something like Question j7 1.B., where it might really snowball into a massive assignment.
18 MR. MILHOLLIN: Yes, it might take a lot of per-19 sonnel, and then there would have to be a decision as to 20 whether and under what circumstances we could demand resources 21 from the Commission. 1 xxx Well, we are now to 1.B.,
22 what would be the effect p
d 23 of reversing the burden of proof on stays.
24 This doesn't add too much to what is in the memo we Ace.Feder;l Repor. ors, Inc.
75 slready have. I have made a formulation of my own here in which I
193 l
j I listed what my quick impression would be of reversing the 2
burden of proof. That's under sub 1. of B.
3 MR. SPANGLER: Isn't this 2.D. we're dealing with? j
(,-) 4 MR. MILHOLLIN: B.
1 3
MR. SPANGLER: Oh, in your memo. I see.
6 MR. MILHOLLIN: What would be the effect of reversing 7
the burden of proof on stays.
8 That listing under 'Tumber 1. is intended to be 9 cuggestive rather than intending to be a proposed legal 10 alternative or statement or criteria.
11 And, of course, Number 2. proposes a rather broad 12 question, which implies, I think, as far as information goes,
/7 13 that we would simply be looking for data from applicants i V
ja concerning how much they need.for the decision to be immediately 15 effective.
16 MR. OSTRACH: One possible source of information --
37 I don't know how useful it would be -- originally, as Bill 18 probably knows, the immediate effectiveness rule was the 19 exact opposite of what it is now. For perhaps two or three 20 years the practice was that Licensing Board decisions were not 21 immediately effective unless the Licensing Board chairman, 22 at the request of Applicant, made certain findings that no o
C 23 substantial questions had been raised and the grant or the 24 issuance of the license would be productive of public benefit. i Ace Feder'J Reporters, Inc, 25 It is possiLle that by looking at what happened in l
i 194 l
1
- that two- or three-year period we might see that a reasonable 2 number of these things wera ; ranted or they were granted very l
3i e asily, or in fact fine-tuned analysis took place. I simply I
r3 I
(_) 4 don't know, but we do have the possibility, at least, of there 5 having been some experience under something similar to the 6 reversal of the burden of proof. l 1
7 MR. PARLER: I think that would be a useful area 8 to examine, a period of several years in the early Sixties, 9 1960 to 1966. I think the examination will reveal that these 1
1 10 requests for immediate effectiveness were perhaps routinely l 11 made ano. routinely granted. j l
12 Those were the days, with one or two exceptions,
(^T 13 that the cases were not contested. Perhaps that experience l
'\-)
ja laid the groundwork for the Mitchell panel's recommendations 15 in 1965 to change the rules so that they would in a straight-16 forward manner provide for the immediate effectiveness rule I i
17 as we now have it.
18 But I agree that that would be useful to look at, 19 and if this is assigned to me I will look at it.
20 MR. MILHOLLIN: I'm not sure whether it is or not 21 under our present arrangements.
i 22 MR. PARLER: It was ander the present arrangements.
(_) 23 I wasn't volunteering.
24 (Laughter.)
Ace-Feder"J Reporters, Inc.
25 MR. MILHOLLIN: Do you have assistance under the I
. . . . . . - . . .-_. . _ _ _ _ _ _._. _ _ _ _ _ .~ _ .. _ _ . ._.__. ._ _ _ _ - _ . _ _ _... .. _ ._
195 :I j present arrangement?
2 MR. PARLER: That's old 2.D.
l 3 MR. MILHOLLIN: You have assistance from DPM and
() 4 DSS, is that right?
5 MR..PARLER: From Paul and 4 om Dick.
MR. OSTRACH: 2.D. was DSE c.d'DPM.
6 MR. COLLINS: I don't see w.at contribution could t
7 be made by DPM'in this particular area. That seems to be r 8
something that's after and above when DPM is finished-with 9
its work. I don't know if there would be any information l 10 in DPM documents regarding this item.
l 11 MR. SEGE: I would interpret this, the main burden ;
\
12 of this question, to go to the seriousness of the issues and j l
l 13 the seriousness of the consequences of a misstep. From that i4 standpoint, the broad licensing knowledge of an organization i
,15 like DPM could be'particularly useful. I would think that ,
i 16 that sort of rationale might underlie the DPM' leadership in 17 connection.with this subquestion.
l 18 MR. MILHOLLIN: You mean effect on construction ;
1 19 schedules of not granting a stay? I guess I don't follow you.
l 20 I'm sorry, of granting a stay.
21 MR. SEGE: I'm sorry, what was the question?
l l
22 14R. MILHOLLIN: I guess I didn't understand what
~(k 23 you were saying when you said the consequences of a misstep.
24 What do you mean by " misstep"? Do you mean a case where a
[ Am.FMwW Rgoruts, Is j
25 stay'un'ler.these circumstances would be denied when it should '
196 j have been granted, or vice versa?
2 MR. SEGE: Right. Should stays be granted more 3
easily when a safety question is raised than when it's a
( 4 question of whether the record is complete in certain 5 respects or when sorpe procedural question is raised, or if 6 the issue is an ultimate environmental impact one versus a 7
safety one,'or if the issue is one of immediate environmental
]
8 impact of continued construction. Does the nature of the 9 issue in contention and the consequences that could flow 10 from getting deeper into a construction commitment while the
)
11 merits are being adjudicated, should that be a factor in how 12 stays are viewed, by what standards are judged.
1 13 MR. MILHOLLIN: From Tony Roisman's remarks, I !
ja think he would anticipate that there be some system for 15 evaluating the evidence necessary to decide whether to grant 16 a stay. He's contending that there is no system now apparently, 17 or the system we have is inadequate.
18 Is that what you were thinking of, that ultimately 19 the question is going to be what that evidence is and who 20 will provide it?
21 MR. SEGE: I don't think I really quite thought it 22 through to that extent, Mr.. Chairman. I've given it enough 23 thought to go as far as I characterized the issues, but I have 24 not completely assimilated Mr. Roisman's remark in relation i Aco Feder:;l Rooorters, Inc.
25 to that.
.- .. .- _ - - - .._. . . - . - - - - . ~ _ _ - ..-- ~ ~.
197 j MR. MILHOLLIN: I suppose it's =. lawyer's concern 2 that Mr. Roisman was expressing.
3 MR. PARLER: Wasn't the pending question in essence 4 why DPM and DSE were assigned supporting roles for this issue?
5 They were assigned supporting roles for Issue 2.D. in the 6
April 5th memorandum, and that issue, in connection with the 7
reversing the burden of proof, also asks what role should 8
economic and schedule considerations play in the event that 9 there.is a reversal of the burden of proof.
10 Those kind of considerations, certainly schedule 11 considerations, are in an area which I suppose is more in !
l 12 somebody else's domain than mine.
l 13 MR. SEGE: I was talking about 2.B. I'm sorry.
14 I may have been talking about the wrong one. I was talking 15 about 2.B. in the Secretary's memo.
l 16 MR. MILHOLLIN: It's getting late and we're beginning I 37 to break down under the strain.
18 We were talking about 2.B. of my memo. !
19 MR. SEGE: And I was talking about 2.B. of the 20 Secretary's memo. I apologize.
21 .MR. MILHOLLIN: There is no apology needed.
22 MR. OSTRACH: On the subject of 2.D. of the 23 Secretary's memo dealing with reversal of the burden of proof,
- 24 it might be that DPM and DSE would have insight into the Ace Federet Reporters, Inc.
-25 ability of applicants to make necessary showings as to the l
1
e 198
[ 1 urgency of the need.
2 MR. SPANGLER: I think that goes right into this 3 heart of the decisionmaking thing of the applicant. I think O 4 1e ete riehe 1=to th e-5 MR. OSTRACH: I think it might.
6 MR. COLLINS: I think you could even carry it a !
7 step further and say, by making the application and showing 8 a need for power, he's already made his case, ,
9 MR. OSTRACH: He hasn't made his case for getting 10 his effectiveness today rather than the three months or five jj months that will be necessary for the Appeal Board to pass on 12 his application -- pass on the appeal.
l 13 We know the Licensing Board has made a finding
-Q jj that the plant is needed by 1990, but the applicant might-be 15 a ble to make a case --maybe he can 't. That's the point. 'We 16 might be creating an impossible burden for an applicant to !
l show. There might be, though, a range of applicants who i
18 say, "Our deal with our vendor is that we must pick up the '
l 39 reactor vessel by a certain date. If we do not pick it up by 1 20 then, our schedule will be thrown off." Therefore, the three-or six-month delay for Appeal Board review will seriously disturb the schedule, much more than another applicant who O 22 hes e differene erreneement with hie veneor.
The case of Seabrook comes to mind. One explanation
^* d * *3"* * *'*-
25 the applicant gave for why they went on threes 'hifts the
F LD:A:)
I instance they got their construction permit was that, "We are 2 in New Hampshire, which has an exceedingly short construction 3 season, and we need to move forward right now or we will have h 4 blown an entire year." i 5 I don't know whether different classes of appli-6 cants will be able to make differing showings as to their 7 need for immediate effectiveness. If in fact they can't, 8 then reve: al of the burden of proof is no different than f 9 simply saying there is no immediate effectiveness at all. ,
10 It is something that might be suitable to DSE or jj DPM to tell us whether there is a range among applicants as 12 to their need to go forward right away or not. It's a sug- j p 13 gegtion. I'm speculating. I don't know. I don't know if a 1 34 Bill would know, either.
g MR. SPANGLER: I always feel it's'malappropriate 16 to use the term " burden of-proof" for forecasting something j7 ten or twelve years into the future. That's so highly un-
"# * "" "" * "" #**" * ** **^Y "9" "
18 are sometimes beyond the control of applicants even.
39 l
MR. PARLER: I agree with you, but that isn't what f0 g this burden of proof is talking about.
MR. MILHOLLIN: We're talking about a short-term lO i
x matter or neer-term metter.
! MR. SPANGLER: Yes, but it has long-term schedule Ace Feelecti Reporters' Inc.
g slippages, and what happens at that'part.tcular time relative e- gr e.- - m +n-,- -- ,- . - - % w 9 m w e-w - - - --
.. .. . . , .. - .-. -. - . . _ - _ - -- _~ . -
2 00 l' to need for power, for example, is very important.
2 MR. MILHOLLIN: We know that some applicants sit 3 on their construction permit for a year.
O 4 xa. cost us: z'm ee1 fied with ese en were ve 5 been getting to my question of why DPM, so I'll be part of 6 the team on this. We're not going to decide it here.
7 MR. MI.LHOLLIN: Okay. Would it be approprAate to have anyone else on this mattsr, B. of my memo, reversing
~
8 9 the burden of' proof, other than ELD and DPM?
10 MR. OSTRACH: Miller?
jj MR. SPANGLER: I think it would be relevant to some 12 f my area of knowleige. I don't know how much I can help, but what I can I will be willing to.
Q 13 ja MR. MILHOLLIN: The' stay requirements -- I'm sorry --
15 if we reverse the burden of proof here, it's likely that the 16 Appeal Board is going.to have to apply that reverse burden of i
proof, isn't it?
)7 MR. CHO: I would imagine so.
18
)9 MR. MILHOLLIN: If we decide that we're going to 20 consider some improvement in the present capability for g evidentiary treatment of that question or the evidentiary matters which are relevant to deciding the question, I assume O , ehee the Aggee1 ecerd mey be the body eefore which ehie
' occurs. It may not.
"I "'
MR. OSTRACH: To make the obvious next sentence
l 201 I to your statement, I guess then it would be important to know i
2 whether questions such as the ones we're proposing would be 3 susceptible to resolution by the Appeal Board, or hether they O 4 e1a 1 917 ree1 euet twee wee 1a reaeire exem e wer .
5 questions that cannot be effectively answered.
6 Do you think you could look at that aspect of it?
7 MR. CHO: Are we speaking in terms of getting 8 information now or just ultimate questions to be answered?
9 Clearly I think they.need to be consulted for ultimate ques-10 tions, but I think now we're talking about information we need.
jj MR. MILHOLLIN: Mr. Roisman said that the Appeal 12 Board responded in Seabrook that they couldn't read the 13 record in the time which was required.
j4 MR. PARLER: As I understand it, Mr. Chairman, that 15 w uld be an issue that should be dealt with even if the 16 burden of proof is not reversed, j7 MR. MILHOLLIN: That's a good point.
18 MR. PARLER: The procedures that should be followed, the evidentiary presentation opportunities that are reasonable 99 to afford a stay under the present allocation of the burden 20 g or under a reversal of the burden. Maybe that should be a separate point for inquiry, .
O u aa. 81tuott1n: she11 we then stog with sto, orM l'
t 24 and Miller Spangler with this? Or should we add John Cho?
MR. CHO: 'I'll volunteer my services here.
202 1 MR. MILHOLLIN: All right.
2 I guess we're going to have to move quickly if 3 we're going to make the bus this afternoon.
4 Should we stop here and make some decisions about 5 what our procedures are going to be for our next meeting and 6 our work in the meantime?
7 MR. OSTRACH: I think we should.
8 MR. MILHOLLIN: What have you discovered concerning 9 the possibilities of having a meeting in two weeks?
10 MR. OSTRACH: Well, the Advisory Committee Act 11 requires us to give reasonable public notice. The regulatory 12 guidelines that the GSA has issued require us to give 15 13 days prior printed notice in the Federal Register before each 14 meeting unless the board makes a finding of an emergency.
15 In the past practice, in the agency at least, the 16 term " emergency" has not been the best word to describe what j7 in fact takes place, and I know that other advisory committees 18 have given as much notice as practical when they have a valid reason for not giving 15 days' notice. l j9 I would strongly 4 20 recommend that our Group adopt a similar policy, of giving 21 reasonable prior notice, as much as appropriate for each future I 22 ***Di"9' 23 As a rule of thumb, I would say certainly as long 24 as the document i's published a week in advance in the Federal Register we should feel no particular'need to make an
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203 -
c I overwhelming. case of emergency. l 2 - As a matter of detail, we can normally get documents ,
3 pblish'ed in the- Federal Register in less than a week, which 4 would J.aan that we can almost always schedule two weeks from 5 when we want to, for example, two weeks from today.
6 MR. MILHOLLIN: Is it your pleasure that we have 7 another meeting in two weeks?
g MR. CHO ': That will be all right.
y MR. MILHOLLIN: Is Friday convenient? ;
i 10 (Members nodding affirmatively.)
jj Good. It certainly is convenient for me, and I'm 12 the one who has to travel.
i
.MR. OSTRACH: Just to continue that, I then propose 13
.j4 that I be authorized'to prepare a Federal Register' notice !
g announcing a meeting-Friday the 16th, and I also will mention g -that1we will be continuing work on, preparation of the interim
~
report to the Commission and repeat our earlier statements,
'the statements in the initial Federal-Register notice, about
' opportunity.to address the Group and written comments and material of that nature. I expect those will essentially be repeated in every Federal Register notice we issue.
MR. SEGE: Mr. Chairman, would it be worthwhile h .
trying.to start earlier than 9:30 to give a little more latitude.around the end of the day?
24 __,._.
M*d R9"'"
- MR. CHO: I'm not sure it's going to give you more ;
25 -
Ee - w l - -- ,. .,sw.,- ,m -- w- ne =wr- y =-n-- yr
- j. , 204 l
I latitude.
l
.2 (Laughter.)
3 I think we'll probably end up at the same time. -
( 4 MR. COLLINS: If we catch the first bus down from 5 Bethesda, we can't get here much before 9:00 o' clock. I 6 guess we were down here about quarter of 9:00 this morning.
7 MR. SPANGLER: Quarter of 9:00 is comfortable.
8 MR. OSTRACH: I don't think it's fair to the public 9 even to make it earlier than 9:00 o' clock. Why don't we say jo 9:00 o' clock, then, next Friday, the 16th?
jj MR. COLLINS: I would like to make it at least a 12 half-hour earlier, 9:00 o' clock.
13 MR. OSTRACH: Is that comfortable for the Bethesda j4 people, because it is the most difficult for you?
MR'. CHO: I thought 9:30 coincided with the bus 15 schedule quite well.
16 j7 MR. SPANGLER: If you get on the 8:40 bus you run 18 a risk of being late for the meeting.
j9 MR. MILHOLLIN: Shall we agree, then, that our 20 next meeting will be at 9:00 o' clock on February 16th?
I g (Members nodding affirmatively.)
MR. SEGE: Is this the time to bring up the question O u or waetwer the reeu1er tiree-tria r-every-momea meetiose i
r should also start at 9:00 o' clock? Is that something the 24 hFederal Reporters, Inc. .
g ,
25 -
g 1 MR. OSTRACH: Yes. !
2 MR. SEGE: Of course, that would only take one 3 announcement forever.
4 MR. SPANGLER: That's what I was thinking. One 5 announcement for this next meeting and the one in March.
6 MR. MILHOLLIN: We could announce in'the announce-7 ment for the next meeting that we're going to change our 8 meetings to 9:00 on a regular basis.
9 MR. COLLINS: And also announce the one on the l
10 2nd of March, I guess it is, too.
- 1) MR. MILHOLLIN: We've already announced that one.
12 We've announced all of our monthly meetings until further 13 n tice.
j4 MR. COLLINS: Good.
15 R. E HOLLIN: Is it your pleasure to continue !
-- 16 a few more minutes today, or would you prefer to break up j7 at this time? !
MR. PARLER: Mr. Chairman, I have a question to ask. It's a procedural matter that I think is relevant to 39 20 the kinds of things that we've been discussing.
Earlier this morning Ms. Weiss, an interested i 21 member of the public, made several suggestions, one of which h) was that notice be given to everyone on our service lists i about our proceedings and that there be a further outreach l AcM. del Reputen, Inc. effort to certain other public interest groups with the 25
.~ ;
1 objective of informing them and trying to solicit their input.
2 I wonder if it is now timely to determine what, 3 if anything, to be done about those two suggestions, which O 4 eem to me te we rea a11e-5 MR. MILHOLLIN: Comments?
6 MR. COLLINS: I think we can defer that for two 7 more weeks, a discussion of this item.
8 MR. MILHOLLIN: Perhaps we could agree on the 9 question of service lists, which is a fairly easy question, 10 rather than the outreach, which is more difficult. Perhaps ,
11 we can't. ;
12 Is there a discussion on the question of service 13 1sts, serving people on the service lists? Do we all agree ja to that? Perhaps we should put it off.
15 MR. FRYE: I have an observation on that.
16 MR. OSTRACH: Your observatian was probably the !
j7 same as mine.
18 MR. FRYE: I suspect it was, yes. It's quite i j9 lengthy, and it's probably also duplicative.
20 MR. OSTRACH: It's very duplicative.
21 MR. MILHOLLIN: Well, let's put it off and think about it for a couple of weeks.
22
! C)'
l 23 MR. STRACH: Perhaps either John or I could ask 24 Docketing and Service just what that would entail.
l AceJoded Reportes, Inc, 25 MR. MILHOLLIN: Very well.' .
_ . - - - - - . . - ~ . . . . . . . . . - . . . - . - . . - . . . - - . . . . - -
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207 l
1 MR. FRYE: Yes, I'll do it.
2 MR. MILHOLLIN: We have some more items, of course.
3 Could we agree before we break up that insofar as the items 4 we've already discussed are concerned that our effort will '
5 b e, between now and our next meeting, to try to develop state-6 ments of where the data is which will be relevant for each 7 of these items, again where the data is, to find out simply 8 where the data can be found? ]
9 And, second, how one could obtain it. Do we have i
10 it in-house? Would we have to ask applicants? Would we l
1 jj have to ask intervenor groups? Who has the information?
12 And, third, how much effort would be required to get it: personnel tilne, expense.
O 13 MR. OSTRACH: In that connection, I'd just like j4 15 to ask,. it came as a total surprise to me to hear of the 16 existence of this Federal questionnaire requirement. I would
)7 at least personally appreciate a little bit of information 18 about it, because I was rather blithely muttering about l
39 questionnaires to these people and questionnaires to those 20 . People earlier.
g If we can't do that, I guess I'll just have to withdraw all my earlier suggestions.
O u aa. cott as: we oea co ie if tue numser we're requesting information from is small enough. I think the
- * * * *
- break point is ten. '
25
- L
\
l 1 MR. SPANGLER: That's about right.
I 2 MR. COLLINS: Ten is the break point. If we 3 select nine cases, we're home free.
l
) 4 MR. OSTRACH: Is it illegal for us to ask someone 5 to ask other people?
6 MR. COLLINS: I don't know. I think one of the 7 better methods would be through public announcements, to 8
get utility representatives in here to address'these subjects 9, to us on a voluntary basis. Say, "This is what we're 10 interested in. Come in and talk to us." Get a half-dozen 11 utilities to come in.
12 MR. OSTRACH: I think I'll try to work something like that into the draft Federal Register notice, and I'll O
j4 make an effort to circulate it to some extent before we send it off for publication. That might be worthwhile.
15 MR. COLLINS: Joe Feltman's group is the group 16 to touch base with if.you want to find out the details of 37 s at OE .
18 MR. CHO: It's actually Federal statute which
)9 underlies that.
20 MR. OSTRACH: I'll have to look at it.
g MR. COLLINS: Joe Feltman has the answers.
MR. MILHOLLIN: Could we also assume that insofar 23 l as we have not discussed certain items in the Secretary's 24 l ;
PW"I ** 25
- memo today but have been assigned by the tentative work l
1 J
T l 209 I
j assignment list to items we haven't discussed that we could 2 do the same thing for those items as we've done for the items 3 we've discussed, that is, if there is an item to which you've been assigned by the tentative work assignment which we (v) 4 5
haven't discussed, it would still be appropriate, I think, 6
t assume that item is going to stay in the study and that 7 we need to develop a statement of how we're going to look f r the information necessary to address that item.
8 MR. SPANGLER: I would personally like to request--
9 g MR. MILHOLLIN: Does everyone understand what I jj said? Is that clear? Are there any objections to it?
g MR. SPANGLER: I have a problem I'd like to raise.
I have a number of areas -- I don't have any lead assignment,
.g other than perhaps this B.l.g. that has been created today.
Of tne four areas I've been assigned, B l.b. and B.2.b. and l 15 i B.4, I don't really think that my small talents would be best suited to continue on those assignments.
I think the one, B.2.d., that relates to these 1
questions that you had in your outline, that, I think, would be appropriate for me to stay on that one.
The one that I think would be most appropriate to 22 my exposure or work assignments is B.6. I have not been 1
fd 23 assigned to that one. That's the one that deals -- it's kind of a catch-all, but it deals with rulemaking and I am --
l Ace-Feder:1 Reporters. Inc.
MR. COLLINS: B.6?
25 "
210 1 MR. SPANGLER: Yes, b.
2 MR. COLLINS: Just plain 67 3 MR. SPANGLER: Well, 6, but it comes under B. if 4 you go back far enough.
5 MR. MILHOLLIN: Oh, I see, the scope being B.
6 Number 6. is on page 6.
7 MR. SPANGLER: Yes. If that reassignment of my 8 talents is appropriate, that's what I would propose.
9 MR. MILHOLLIN: Are there any objections to adding )
i 10 a new volunteer to 6.7 l
MR. PARLER:
j3 I certainly don't have any objections 12 to adding that, but I have a question. That is that in con-e 13 ne tion with this settling more issues generically by rule-U' making issue, that is a question that was raised in Recommen-j4 15 dation Number 10'of the study " Opportunities for Improvement 16 in the Licensing Process," commonly referred to as the Denton .!
Report.
)7 18 The Commission has approved the action plan on j9 Recommendation No. 10, and the policy statement and the 40 various items that we're soliciting public comment on have 21 been published in an advance notice of rulemaking.
Again, it makes no difference to me, but it certainly O u 1 = e e= tire 1r c1e r te me war esi or me aoe1a 91 **ee same ground again'.
It may well be that there is something in the g L_
211 1 rulemaking area that is involved here that hasn't occurred to 2 me. That's the point that I wanted to make.
3 MR. MILHOLLIN: I think it's a good point. I
(")
%s 4 think I've heard expressions from other people to the effect 5 that Item 6. perhaps should be postponed temporarily since 6 it's so broad.
7 MR, SEGE: I was one of those suggesters that 1
8 it's something ,that can effectively be addressed only after ;
9 we have done quite a bit of other work, and at that point l
10 we will be able to structure it more meaningfully without 11 duplicating work that has been done. i 12 MR. PARLER: I think to some extent, Mr. Chairman, p' 13 the same comment could be made about paragraph 4
%s 14 MR. MILHOLLIN: Yes, I would agree, j 15 Why don't we adjourn, then, until -- !
16 MR. OSTRACH: 9:00 a.m. on Friday, the 16th.
j7 MR. MILHOLLIN: -- 9:00 a.m. on Friday, the 16th.
18 MR. OSTRACH: By the way -- we might as well leave 19 this on the record -- I had asked if anyone had any objections 20 to the memoranda.that were exchanged being placed in the 21 public record. I've received no such objections, so those 22 mem randa will be placed in the public record of these pro-Ig ,j 23 ceedings. And all further internal communications between 24 members dealing w'ith the subject will be part of the public Ace-Federd Reporters, Inc. '
25 record', also -- if I get a copy of them, of course, e l
b '
212 {
j I'm sorry. One other matter that was mentioned to me. I intend to distribute to each member of the Study 2
3:
Group a copy of each public comment that the Secretary re- l g 4 ceives as soon as we get it.
We've already received two, and.that will be sent ,
5 ut to you shortly. As others come in, they will be directed 6
to each of you.
7 MR. FRYE: May I ask also about the transcript.
MR. OSTRACH: The transcript has been ordered on 9
a 5-day basis, so it should not be available before next Friday.
)
MR. FRYE: Are you going to distribute copies to everyone? -
( 13 -
MR. OSTRACH: We can, but we'll have to Xerox it 14 :
airselves . We haven't ordered copies for everyone. l MR. MILHOLLIN: I think each member of the Group I would like to have a copy. ,
17 l MR. OSTRACH: I'll speak to Docketing and Services and get that arranged. !
19 (Whereupon, at 4:35 p.m., the meeting was 20 adjourned, to reconvene on Friday, 16 February 1979, 21 !
at 9:00 a.m.)
22 23 24 AcaAtl hp.a.n. inc. -
25 4 4
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