ML20198E464
| ML20198E464 | |
| Person / Time | |
|---|---|
| Issue date: | 11/23/1992 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| References | |
| REF-10CFR9.7 NUDOCS 9212070222 | |
| Download: ML20198E464 (102) | |
Text
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UNITED STATES OF AMERIC A NUCLEAR REGULATORY COMMIS SION 15 l
(16l BRIEFING ON RULEMAKING PROCEDURES FOR DESIGN CERTIFICATION UNDER PART 52 LOCati0n: ROCKVILLE, MARYLAND h3$6l NOVEMBER 23, 1992 G
23g6Sl 99 PAGES d
NEALR.GROSSANDCO.,INC.
COURT REPORTERS AND TRAkSCRIBERS 1323 Rhode Island Avenue, Northwest
< Washington, D.C. 20005 (202) 234-4433 i
0 9212070222 921123 'I
4 DISCLAIMER .
1 This is an unofficial transcript of a meeting of the United States Nuclear Regulatory Commission held on November 23, 1992 White Flint North, Rockville, Maryland. The meeting was open to public attendance and observation. This transcript has not been reviewed, corrected or edited, and it may contain inaccuracies.
The transcript is intended solely for general informational purposes. As provided by 10 CFR 9.103, it is not part of the formal or informal record of decision of the matters discussed. Expressions of opinion in this transcript do not necessarily reflect final determination or beliefs. No pleading or other paper may be filed with the Commission in any proceeding t as the result of, or addressed to, any statement or argument contained herein, except as the Commission may authorize.
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. 1 UNITED STATES OF AMERICA J
NUCLEAR REGULATORY COMMISSION
- --~
BRIEFING ON RULEMAKING PROCEDURES
-FOR DESIGN CERTIFICATION UNDER PART 52 5
PUBLIC MEETING 1
Nuclear Regulatory Commission One White Flint' North Rockville, Maryland i
- Monday, November 23, 1992 l
The -commission met in open- session, 1
pursuant to notice, at 2:00 p.m., Ivan Selin, Chairman, presiding.
I l
COMMISSIONERS PRESENT:-
l l IVAN SELIN, Chairman-of the Commission l
KENNETH C. ROGERS, Commissioner FORREST J. REMICK,- Commissioner j JAMES R. CURTISS, Commissioner
- E. GAIL de PLANQUE, Commissioner NEAL R. GROSS COURT REPORTEBS AND TRANSCRIBERS 1323 RHODE ISLAND .WENUE. N W. '
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2 STAFF SEATED AT THE COMMISSION TABLE: ,
WILLIAM C. PARLER, General Counsel JOHN C. HOYLE, Acting Secretary MARTIN MALSCH, Deputy General Counsel, Licensing and Regulations GEARY MIZUNO, Office of the General Counsel PETER CRANE, Office of the General Counsel B. PAUL COTTER, JR., Chief Administrative Judge, Chairman, ASLBP s
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3 1 P-R-O-C-E-E-D-I-N-G-S 2 2:00 p.m.
3 CHAIRMAN SELIN: Good afternoon. This 4 afternoon the Commission will be hearing a briefing by 5 representatives of the Office of the General Counsel 6 on the rulemaking procedures for design certification 7 under Part 52.
8 Last May, May 8th, the General Counsel 9 provided us a preliminary assessment of issues 10 associated with design certification rulemaking, SECY-11 92-170. It was released for public comment, followed 12 up in July of this year with a public workshop 13 conducted by the staff to discuss the issues with 14 interested parties. After consideration of written 15 public comments and the discussions at the public 16 workshop, the General Counsel presented his final 17 assessment and recommendations in SECY-92-381. The 18 General Counsel and his Deputy General Counsel are 19 here today to discuss final views concerning 20 procedures for design certification rulnmaking.
21 I would like to point out that there is a 22 certain amount of feeling our way through this because 23 it's not customary to have the possibility of 24 contested rulemakings. So, our traditional approach 25 to rulemaking is going to be followed in somewhat NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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1 different fashion _during this. So, we're all trying ,
2 to reason together on this.
3 Any comments?
4 Mr. Parler, the floor is yours.
5 MR. PARLER: Mr. Chairman, members of the 6 Commission, we're very pleased to be here. As you've 7 already said, Mr. Malsch is here with me. After I 8 give you my introductory views, an overview, Mr.
i 9 Malsch will proceed with the details, j 10 Mr. Mizuno worked quite hard - on this
{ 11 paper, all of the papers that you mentioned, as well 12 as _other major Commission projects such as the 13 maintenance rule, plant life extension, et cetera. He i 14 hasn't found his way to this meeting yet, but he did i
15 a real good job.
16 COMMISSIONER ROGERS:- He's exhausted, f 17 MR. PARLER: That's right, he's exhausted.
1
( 18 I think-that the effort that he put into this paper, i
19 92-381, going into details about the comments and.the f
20 workshops and - the various issues are really an 21 outstanding piece of work.
You mentioned some'of the -- here-he is.
22 l
23 Here, - Geary, sit . down.
Be our guest.
24 You'll read the record for what I had to-say about i
25 you.
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1 Before I proceed with other details, I 2 also would be remiss if I did not acknowledge the 3 splendid cooperation of the staff, Mr. Crutchfield, 4 Mr. Wilson, Mr. Murley and the EDO in looking at these 5 papers ve.y quickly and providing us their advice.
6 The cooperation, the teamwork was splendid throughout.
7 Now, back to the history. You have 8 mentioned some of the history. We had a workshop on 9 July the 20th which went very vell. We were pleased 10 to have that workshops. Ms. Hiatt, who opresented 11 the Ohio Citizens for Responsible Energy, that's the 12 OCRE that's referred to in this papert Mr. England, 13 who is employed by the State of Illinois Department of 14 Nuclear Energy; Mr. Brow from the State of New York 15 Public Service Commission; Mr. Olmstead, who used to i
16 work here but is now the Executive Director for the 17 Administrative Conference of the United States. The 18 industry was r: presented by Mr. Bishop, Mr. Rowden, 19 Mr. Codan. Mr. Crutchfield also participated and made 20 valuable contributions. Mr. Mizuno, and the workshop 23 was, moderated b'; Chip Cameron who did a really 22 outstanding job in getting the participants together
- 23 and in running the workshop. It was a valuable 24 reaching out experience and the experience helped us l
25 in coming up with the proposals that we have in the NEAL R GROSS CO' :~ 1EPARTEPS AND TRANSCRIDERS 13u - JE :SLAND AVENUE. N W.
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1 paper. .
. 2 The earlier paper that the Chairman I
f 3 referred to was based in large measure on NUMARC l 1 I 4 proposals which were in the paper. There was an l
! 5 OCRE -- that's how you pronounce OCRE, Mr. Chairman.
6 That's the best I can do --
commentary on those i I l 7 proposals. Also, we took into account about six i
- 8 earlier rulemaking proceedings -such as the GESMO I
! 9 proceeding and others which were different from the
}
10 typical notice and comment proceedings that we have
! 11 had in the past.
4 i
12 About 46 people outside of the folks who
- 13 put the workshop on attended. Elevian others ' asked for 14 copies of the paper, but apparently decided that the
! 15 paper answered all of the questions that they needed l
i 16 and they didn't show up at the workshop. Another
} 17 group, some of whom partj cipated in the workshop, l
l 18 filed bomments on the paper. All of the comments have 3 19 been taken into consideration by Mr. Hizuno in the i
j 20 oreparation of the paper that you have before you.
l 21 It's perhaps worth mentioning again what 22 this effort is all about. 52.51 in the design
- 23- certification rule says that the commi'ssion shnll 24 prescribe the procedures to be used for the design
! 25 certification rulemaking. Among other things, that l
l
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7 1 rulemaking will involve the proposed design
. 2 certification rule, the statement of considerations.
3 The meat for most of that would be from the efforts 4 such as the ones that were talked about at this 5 morning's session and in similar sessions. Those are 6 where the real challenges lie.
7 The design certification rule also should 8 include the procedures and the schedules for the '
9 remainder of the design certification rulemaking, how 10 process-wise we get from the proposed notice to the 11 publication of the final rule, which is the ;
12 commission's responsibility. So, we're simply talking 13 about the approval of a notice of proposed rulemaking, 14 not the rulemaking itself.
15 In this effort, we're doing more than is l 16 required by the applicable law, the APA. As I've i
l 17 already_ indicated in connection --
or tried to 18 indicate in connection with my remarks about the 19 workshop, the effort of reaching out and doing more i
20 than we have to do, I think is healthy and results in, 21 in this case, a better product.
22 I would also like to mention as a general 23 introductory matter that rulemaking, whether _ it's l
24 notice and comment or'something beyond that, is not 25 licensing. As the. Chairman- mentioned at the NEAL RiGROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.-
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1 1 beginning, notice and comment rulemaking is usually -
j 2 the typical effort that we're engaged in, have engaged j 3 in in the past of the Vermont Yankee court decision.
]
4 That's all that we have to do. In Part 52, however, i
1 5 the procedures that are called for in that part as a j
t
) 6 matter of policy by the commission go beyond notice l
! 7 and comment rulemaking. Among other things, there's 8 a provision if certain procedures - are followed and 1
9 requirements are met for an informal hearing and-I l 10 perhaps on discreet issues for a formal hearing.
11 The fact that these procedures-go beyond i
- 12 notice and comment rulemaking should not disguise the
! 13 fact that we are still engaged in rulemaking and not
! 14 in licensing. I'd like to emphasize that because 15 there are fundamental distinctions between the two. .
16 Rulemaking is more like legislation 'in which the 17 commission makes the final policy decisions, j 18 Licensi n is adjudication in which typically and .
j 19 historically the commission has relied heavily on the i
20 initial decisions from presiding boards. In i
f 21 adjudications, there are legal requirements that-you 22 have to-follow to make sure that the decision is made
- 23 on the basis of the adjudicatory record, legal f 24 requirements such as - with regard to- ex' parte 25 communications,- separation of functions and almost t
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9 1 always in our practice there have been initial 2 decisions.
3 In rulemaking, any person may comment on 4 the rule. On the other hand, in adjudications, the 5 concept of standing is important to the people who ;
6 participate as parties or any persons whose interests 7 may be affected by the proceeding. In adjudications, 8 if you have parties to the proceeding and you have 9 difficult . issues such as proprietary data to be dealt 10 with, you have discreet parties, an identifiable 11 number of parties subject to the jurisdiction of a 12 presiding board so- that you can better handle that 13 kind of an issue.
14 Under the procedures for design 15 certificeklon, although there is still a rulemaking, !
16 there is still a role for a presiding board. But the I
17 point that I would like to emphasize is the 18 distinction -between rulemaking and adjudications 19 account for the different role of the presiding board I
20 that we have suggested in this paper than 'from the 21 traditional rule of a presiding board in 22 adjudications.
- 23. Someone at the workshop asked the question 24 that the approach that .was taken in the earlier paper,.
25 which advocated a more limited- role for presiding-NEAL R GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N W.
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- 1 boards than the traditional role the presiding boards ,
2 played in adjudications must have meant that the 3 General Counsel who made the preliminary 4 recommendations did not have faith in the presiding 5 board. That certainly was an inflammatory question.
6 Being a bashful type, I normally don't get up to say 7 something, but I had to respond to that one. Nothing
- 8 could be further from the truth. Anyone who knows 9 anything about the role of the board in licensing and 10 in adjudication over many years realize that they have i 11 performed great service for this Agency and its 12 p~sdecessor. They have represented the Agency in many 13 sites over the country. They have como up with 14 initial decisions in many complex cases after great
, 15 effort.
i 16 The reason for the difference in approach 17 in the different roles is because one is rulemaking.
18 These other things are licensing and adjudications.
19 There were six or so major rulemaking 20 cases, as I've already mentioned, that we use along 21 with the NUMARC recommendations and the OCRE 22 commentary. I've already mentioned that. These 23 things -- this background resulted in five principal 24 issues, procedural or process type issues. The role 25 of the presiding board, ex parte, separation of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 HHODE ISLAND AVENUE, N W.
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11 j 1 functions, threshold for hearing requirements, that is >
2 when we move notice and comment from informal to ;
3 formal if the latter happens, the structure and the 4 timing of the hearing and the use of-the proprietary 5 information, how it would be dealt with. #
6 The major highlights in the paper that's 7 before you regarding these things that I just 8 mentioned, the major issues as well as a couple 9 others, I would like to mention briefly, highlight 10 them briefly, and then proceed in the details with Mr. ,
11 Malsch.
12 With regard to the role of the licensing 13 board which is discussed in the paper, about page 34 14 to 43, we suggest or recommend that a licensing board should act as a -- in the words that somebody else I
15 16 coined, not myself, but I'm accountable for the 17 words -- as-a modified full magistrate since the 18 presiding board has the discretion of submitting 19 recommendations to the commission on any. controverted 20 issue in the hearing.
21 You may recall in the earlier. paper that 22 our preliminary recommendation was that' the presiding .
23 board would act' as ailimited magistrate. I- think that 24 most of the -- certainly the majority of the folks- at 25 the workshop believed that the presiding board should NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHOOE ISLAND AVENUE, N W.
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1 1 be given a broader role so that in addition' to 4
)
{ 2 presiding over the hearing and coming up with a record i
3 to certify to the commission that if it had i
j 4 recommendations of its own, it could make them.
li 5 Incidentally, one major difference between i
l 6 the earlier paper and this paper is that in the i
! 7 earlier paper all of the recommendations from OGC were l
8 preliminary. In this paper we're making our l 9 recommendations to the Commission.
4 1
j 10 Another area, ex parte and separation of
- l j 11 functions limitations, we say that -- and - this is i
i 12 covered in 56.57, thereabouts. The ex parte j 13 limitation should be followed from the issuance of the i.
i 14 notice of proposed rulemaking. Ex parte, of course, i,
l 15 is information about the matter at issue. From the l 16 outside, we say that separation of functions should be l
17 followed af ter the Commission issues a grant of a l '
. 18 hearing in the design certification rulemaking so that l 19 the communication between - the Commission and its i
1 4
20 staff, all the ' issues that are being considered in the hearing, are made public.
~
1 21 t
i 22 The' threshold test tor requesting i
23 hearings --
l i
- 24 CHAIRMAN SELIN
- -Could you stop for a I. 25 second?
f
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13 1 MR. PARLER: Yes, sir.
2 CHAIRMAN SELIN: The recommendation not 3 just that the Commission would not meet with ths 4 staff, but that no individual Commissioner or 5 individual Commissioner's staff would deal with the 6 staff once this point had been passed except in a 7 public meeting?
8 MR. PARLER: It's neither because I've got 9 to say that you shouldn't meet with the staff. We are 10 saying that if you meet with the staff about these
! 11 issues that the subject that is discussed, if it's 12 relevant to the issues that in a hearing should be
. 13 made public, i
14 CHAIRMAN SELIN: Not that the meeting 15 itself necessarily be public or -- could you talk a 16 little bit more about the mechanics of the 17 recommendation? Is it that a record be made public, 18 that the meeting be docketed and advertised?
19 MR. PARLER: That the substance of the 1
20 meeting be made public. The documents are a 21 memorialization of what was discussed.
22 CHAIRMAN SELIN: Fine. Thank you.
23 COMMISSIONER REMICK: I interpreted it 24 just slightly different. I read words. I thought you 25 were basically encouraging that in essentially all NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N W.
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1 cases -- not all, but in essentially all cases that it ,
2 be done in the public forum, either through SECY 3 documents, open meetings and so forth.
4 MR. pARLER: What I would emphasize myself 5 in the event that there's any ambiguity in the paper 6 is that the substance of the discussions be made 7 public. The purpose of all of this is not to over 8 formalize anything, but we are engaged in a rulemaking 9 proceeding. Rulemaking rules are supposed to be made 10 on the basis of a rulemaking record and we want to 11 make sure that the record is disclosed to everyone.
12 As the Chairman mentioned at the meeting 13 this morning, we are dealing with something that would 14 have a wide reaching impact potentially on people 15 years into the future, as I'm sure you all are aware 16 of that. How the mechanics are handled, whether the 17 discussions are public themselves or not is not overly 18 important. The most important thing is to have the 19 substance of what is discussed be made a part of the 20 public record. I emphasize also that we're only 21 talking about discussions that have to do with the 22 issues that are in these hearings, if any are held.
23 COMMISSIONER CURTISS Bill, could I 24 follow up on that because this has been one of the two 25 or three, I think, most important issues in the paper.
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15 1 I guess I had some of the sano lack of clear 2 understanding in my own mind about how the process 3 would work, in part because we do have some experience 4 and some authority in the current regulations on 5 separation of functions. Let no just take a half a 6 minute to summarize what I understand to be the 7 approach today with the separation functions 8 provisions in the context of typical adjudication.
9 The procedures that we have in place under 10 Part 2 generally seek to prohibit communications with 11 the option of serving notice on the parties as to the 12 substance of communications being a uethod or a means 13 by which you can cure what otherwise is a prohibited 14 communication. In other words, it's sort of second 15 step if you should happen to find yourself either 16 unknowingly or at someone's behest engaged in a 17 prohibited co.amunication.
18 The approach that I heard you describe 19 here -- let me just put it in the form of a question.
20 Would it permit an individual Commissioner or l 21 Commissioner's staff to meet with the staff or anybody 22 for that matter involved in matters that are the 23 subject of a hearing once the notice of hearing is 24 issued, and to do so in a fashion that if notice is 25 served after the fact on anybody who is participating NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N W.
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1 in that hearing or in the PDR or what have you would ,
2 fully address any procedural concerns that you believe 3 exist here?
4 MR. PARLER: The procedural concerns are 5 not what bothers me particularly. The objective of 6 both of these things, the ex parte and separation of 7 functions, what the objectives are is to assure that 8 anything of substance that influences the people that 9 make the final rulemaking decision is available in the 10 public record for all interested persons and citizens 11 to have at their disposal.
12 Now, we do not have here really the 13 procedural constraints that are well established in 14 the adjudicatory area where the governing rule is that 15 you really shouldn't do these things in the first 16 place. You shouldn't entertain ex parte 17 communications. You shouldn't breach the separation 18 of functions wall, a matter which I will talk about 19 tomorrev in connection with decommissioning, if I 20 survive until tomorrow. But we also recognize that it 21 does make sense. It is desireable for the Commission 22 to have access to members of its staff who are the 23 most knowledgeable-in the area. So, all this thing 24 says is if the Commission does that, certainly as far 25 as separation of functions is concerned, the substance NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N W (202) 234 4433 WASHINGTON. D.C. 20005 (202) 234-4433 1
1- 17 1 of the advice from the staff, whether it be in the 9
2 form of a staff paper or memoranda, whatever it is, be 3 included in the public record.
4 CHAIRMAN SELIN: Please continue.
5 MR. PARLER: I will. I was just looking 6 to see if my colleagues disagreed with me. I'd like 7 to find out now so that you all will be informed
) 8 rather than later.
9 Moving right along here, the threshold for 10 requesting a hearing, that's discussed in page 62, 63 11 and thereabouts in the hearing. The paper says that 12 the three part test is maintained. The notes that I 13 have here talk about a two part test. But the point 14 is that the written comments that are submitted for 15 all the proposed design rule could also be used as a 16 basis for the written presentations, for any informal 17 hearing requests. It was also the concern, I believe, 18 because we use the word " qualification" in the 19 preliminary rule that we were suggesting, that the 20 people th.ot were requesting hearings, either informal 21 or formal, demonstrate that among other things that 22 they have to qualify or meet some expert witness 23 standard. That's been changed and we're simply asking 24 that they indicate that they can contribute 25 significantly to the development of the record on NEAL R. GROSS COURT REPORTERS AND TRANSteilBERS 1323 RHODE ISLAND AVENUE, N W.
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1 1 controverted issues. Resources, time are important ,
2 here. We would like on the one hand to give everybody 3 that can contribute to the record an opportunity to 4 contribute. But on the other hand, not to have a lot 5 of wheel spinning going on without any substantive 6 contribution. I realize that judgment has to be l 7 exercised on things such as that and it's not anything i
l 8 that's cut and dry.
9 The next item, the structure and the 10 timing of the hearing milestones, this is discussed 4
11 around 70.73 of the paper. There's a 120 day period 12 for submitting written comments and requests for an 13 informal hearing. The earlier paper, I think, used a a
! 14 90 day period. But both the 90 and the 120 days are i
15 highly qualified with statements such as we have the f 16 quality products early on and there's no too much 17 proprietary data and things such as that.
i
' 18 Requests for additional procedures for the 19 full formal hearing are submitted at the oral phase of 20- the informal hearing with the exception of discovery l 21 requests. The exception for discovery requests is 22 based on the experience that the time for discovery in l
23 the typical licensing proceeding or hearing proceeding
- 24 .does add considerably to the schedule. So, we are i-25 recommending-that the discovery request be filed at i
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19 1 the beginning of the informal hearings or 15 days 2 after the commission's grant of the informal hearing 3 request.
4 Another item that should be mentioned as 5 a proprietary information, the design certification 6 rule and access to the proprietary information in the 7 rulemaking. I was pleased, glad to hear the gentleman 8 this morning, and I think that I heard him correctly, 9 Mr. Quirk is his name, say that they had reduced the 10 volume of the proprietary information at least in that 11 particular application to about five percent, roughly 12 one-third of what they had in the GESAR. I probably 13 missed that acronym too, but that's the best that I 14 can do. Also, the gentleman said that they would have 15 no proprietary information in the tier 1, as I recall 16 the conversation.
17 We have in the paper some correspondence 18 from the industry, and I would certainly not attempt 19 to describe their position or go through a legal 20 analysis of their position. I have a hard enough time 21 explaining my own legal position about certain things.
l 22 We have given you another paper which explains our 23 legal position in great-detail. The paper that you 24 have before you and that the audience has provides two 25 alternatives for incorporating proprietary information NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE. N W.
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1 in the design certification rule. No proprietary ,
. 2 information in tiers 1 and part 2. I gather as far as i 3 tier 1 is concerned that there's no argument at this i j
4 point.
., 5 Another alternative would be to obtain the 6 formal office of the Federal Reaister approval for the 7 incorporation of proprietary information into the l i
- 8 rule. We've had informal discussions. We've also 9 researched what other agencies do, and believe me, if
^
10 I had discovered anything that would really be 11 helpful, you folks would have been the first to know 12 about it.
13 The paper has in it three alternatives for 14 making the proprietary information available~to the 4
15 public in the rulemaking proceeding. Access to all of i
l 16 the commenters without showing of need, access to the i
- 17 commenters upon showing of need, and capability to use b
18 the information contributed to the development of the 19 record. There's a NUMARC proposal, at least as I l
- 20 understand it, access only to the parties to the-l
- - 21 hearing, after which there would-be a showing of need
- 22 and capability to use the information.
23 Under either alternative, the proprietary 24 information would be obtained .from - the vendor, the "
l 25 applicant under a protective agreement. Any disputes i
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21 1 over the access would have to be resolved by the 2 Commission or the presiding board if there is a 3 hearing.
4 We mentioned in our earlier paper, the one 5 that we sent to you before the workshop, that perhaps 6 the Commission Public Document Room should handle the 7 access as proprietary information. No one thought 8 that was a good idea and neither do I, after the fact.
9 So, that's a change.
10 Now, Mr. Chairman, in addition to these 11 five areas which at the time of the earlier paper were 12 the ones that attracted the most attention, there is 13 another area that we elaborated on a little bit in the 14 paper that you have before you the opportunities for is early public notice and participation. Any such 16 opportunities, I think, if they are available, would 17 be worth thinking about because if you have the early 18 reaching out and openness, it seems to me that that 19 has a big payoff, one of the things that -- or has a 20 potential for a big payoff.
21 One of the things that we mentioned is the 22 Federal Reaister notice of the issuance of SECY 23 papers. Another possibility is the advanced notice of 24 proposed rulemaking, unless of course we have a 25 situation, as we do in connection with the application NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N W.
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] 1 that was discussed this morning that's already been ,
2 the subject of extensive review, public workshops for 3 informing the public of design certification issues l 4 and obtaining public comments, publishing in the 5 Federal Reaistel notice of availability of draft and e
{ 6 final SERs in support of an FDR design certification d
7 and the use of an alternate dispute resolution 1
-l 8 techniques, whatever they are, available, and in the j 9 judgment of people that are familiar with those 10 techniques, whether they have the potential for doing i
j 11 some good.
l l 12 Now, I tried to emphasize at the beginning 13 of at least my discussion that the nature of the thing 14 that you had before you, we are asking for your l
15 guidance on these recommendations. When we get the 16 guidance, we will draft at least the process part of i 17 the notice of -hearing. The difficult part of the 4
18 notice of hearing, of course, would come from the 3
19 tschnical staff, the technical analysis from the SER 20 and the statement of considerations.
21 We have attached to the paper an enclosure 22 2 which we would publish after you give us the 23 permission and give us whatever guidance that_ you want 24- to give us. We would publish that in~the Federal 25 Reaister, which would give a general overview of what NEAL R. GROSS COURT REPORTERS AND TRANSCRIDERS 1323 RHODE ISLAND AVENUE. N W.
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l
- . 23 1 we have done. There are some minor corrections that 2 have to be made in that enclosure, non-substantive 3 corrections. The opportunities for early public 4 participation that I just referred to, any guidance 5 from thr commission on those would also be helpful.
6 At least in the first notice of proposed rulemaking 7 there won't be too many opportunities to deal with 8 those. But in future ones, that might be different.
9 We say in the paper that from the lessons 10 that we learn in the first two of these rulemakings we 11 will come back to the commission perhaps after the 12 second one with recommendations to codify some of 13 thosc recommendations into procedural rules. I'n 14 certain that the first go around, the first rulemaking 15 will provide some useful lessons so that we can use 16 those for the second one before we get around to 17 thinking about codifying something. Not we, these 18 folks.
19 At this point, Mr. Chairman, I have given 20 you my overview as I understand-the paper before you 21 and as I understand the isboes. I'll be pleased to 22 answer any questions that you may have of me. If not, 23 Mr. Malsch will summarize the five- points plus 24 whatever other points he might have in mind in some 25 greater detail.
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I i 24 -
) 1 CHAIRMAN SELIN: Well, before we go off, '
1 h
{ 2 I'd first like to thank you for a very cogent summary.
[ 3 I have a couple of questions and perhaps I
i 4 Mr. Malsch will just make sure he addresses these when
} 5 he goes through.
.i j 6 The first is we sketched out a proprietary i
i j 7 context this morning 6nd I'm not sure that any of the i
j 8 proposals in the paper quite covers it. So, I hope I 9 you would close that gap. That is the context in
. 10 which there would be no proprietary information in the i-l 11 rulemaking, that the rulemaking would have to stand or >
- 12 fall entirely on open information. However, as a side i
13 to the rulemaking, the vendor could make available to 14 the staff proprietary information which would allow 15 the staff to check its hypotheses at greater detail.
l 16 But by definition, number one, the.information would i
17 not be available to the general public and two, 18 therefore the information that was available to the l 19 general public would have to be sufficient to carry i
a 20 the weight-of a record on which a' decision could be ,
4 21 made.
- 22 I'm not saying this is a good idea or bad. l l
e 23 idea, but it's not clear to me.-whether any of the:two ,
i 24- times three' options that you have would cover that, 1
< 25 whether that's a special case or not. I l
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25 1 The second question I have has to do with 2 the full magistrate. It's just to note when you go 3 through that whether you looked at the timing and the 4 additional amount of information that would be 5 necessary. In other words, would we expect to get a 6 record from the licensing board and then in parallel 7 get recommendations or would the record be held up 8 while the licensing board decided how to handle 9 recommendations? Some idea of the impact of - the 4 i 10 timing of the process as the price of receiving these 11 recommendations.
12 Finally, a point that hasn't been covered 13 here but was covered a little bit in some 14 congressional testimony. Is there a way to allow the 15 parties to debate each other without having to go to 16 the extent of building where evidence is not -- I mean 17 where questions are not about evidence but are about 18 judgment. Is there a way to allow parties to actually 19 question each other in front of a licensing - board 20 without going to the extent of a formal hearing with 21 discovery? And-just as a part of your outline to
_22 .see if you wouldn't mind covering these points.
23 COMMISSIONER CURTISS:' Let me add two 24 other issues to that that weren't- touched on directly.
l 25 If.you'd speak to in more detail the basis forjyour NEAL R; GROSS l-COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE. N W.
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26 -
1 recommendation on sui sponte review, I'd like to hear .
. 2 what your thoughts are there. Secondly, the l 3 recommendation that is set forth or the option that is i
l 4 described in the attachment to provide for funding of j 5 participants, funding of the public prior to the i
6 initiation of the formal design hearing, I'd like you i
] 7 to expand upon that and what your thinking there is
- I 1 8 to.
9 CHAIRMAN SELIN: I'm just thinking of a
l 10 those negative license fees.
4 11 COMMISSIONER REMICK: I'd like to add one 12 too and that is the --
4
- 13 COMMISSIONER CURTISS
- You may be covering
- 14 all these anyway.
i 15 COMMISSIONER REMICK: -- the 90 day period 16 between the issuance of the FDA and the advanced 17 notice of proposed rulemaking. I still have questions i
18 on that and perhaps you plan to address that. Then,
! 19 an item of clarification. Am I correct that the rule, i
4 20 . tier-1 would constitute the rule?.
[
i 21 MR. .MALSCH: Well, no. The rule would 22 incluce both tier 1 and' tier 2.
23 . COMMISSIONER REMICK: Okay. So, when the 24 Chairman says, "No proprietary information in.a rule,"-
i 25 that's both tier 1 and tier 2. Okay, i
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37 .
r 1 Then one additional attempt on the ex 2 parte separation of function. If I read Part 2 of the 3 regulations I see a lot of prohibitions, "You may not 4 do this. You may not do that." As I understand it, l 5 what OGC is recommending, that we carry out the intent 6 of ex parte and separation of function to make sure 7 that the public is fully informed of any discussions, 8 but that we not carry along the formal trappings _of '
9 Part 2. Is that correct?
10 MR. PARLER: May I answer that one? The 11 rules themselves would not apply. We would tell 12 everyone in the notice of hearing what the rule is 13 because a lot of these rules, as you can tell from 14 reading the paper, were designed.for adjudications, 15 for licensing and adjudication.- So, with whatever-16 guidance the commission would give us in addition to
-17 what we have in the paper or changes to what we have 18 in the paper, we would spell out what the situation is ,
19 on ex parte and separation of functions in a notice of 20 proposed rulemaking. That's the way that I would do 21 it.
22 COMhbSIONER _ REMICK: But am'I correct 23 that that's properly characterizing what is in the 24- paper that you're advising that --
25 MR. PARLER: Yes..
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y 28 i
3 1 COMMISSIONER REMICK: Okay. Thank you. ,
i i . 2 MR. PARLER: That's what I had in mind.
1 1
j 3 COMMISSIONER REMICK: Good.
- I 4 MR. PARLER
- I signed the paper.
1 i j 5 May I make one other comment? All the -- )
i j j 6 had you finished? I i
i 7 COMMISSIONER REMICK: Yes, I am. Thank i
! 8 you.
- 9 MR. PARLER
- -All of these things that you li i 10 folks have mentioned will be covered, but theia's one 1
l 11 exception. That is in the proprietary data, at lo,ast
. I 12 as I understand it, where there could be a sharing f 13 between the vendor or the applicant and the staff of
- 14 proprietary data and the proprietary data presumably 15 would not find its way even in the application for a i
16 design approval. So, I will leave that one in Mr.
17 Malsch's good hands to respond ' to. But it is a-f 18 possibility that I haven't discussed with anybody, i
- 19 CHAIRMAN SELIN
- So you'll be as i
20 interested as we -- are to hear how 'he handles that 21 question.
22 MR. PARLER I'm protecting myself. I may 23 not agree with what he says.- I'm sure that I will.
l 24 CHAIRMAN SELIN: Mr. Malsch?
l 25 MR. MALSCH: Okay. Let me begin by just-
[
1 i NEAL R. GROSS l COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE. N W, l
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29 1 going through some of the basics about what the 2 minimum steps are for a design certification 3 rulemaking.
4 The minimum steps, assuming there's 5 sufficient public interest to have an informal 6 hearing, would be obviously docketing and notice of 1 7 docketing of the application, the staff review, 8 issuance of the final staff safety evaluation report 9 and the FDA, followed by notice of proposed 10 rulemaking, a written comment period, preparation for 11 the information hearing and then the conduct of the 12 informal hearing, various post-hearing filings by the 13 parties advising the Commission what they think the 14 rule ought to look like, and finally a commission 15 decision and a publication of the final rule.
16 Additional steps, depending upon 17 Commission decisions and requests and interests by the 18 parties, would be dealing with more formal procedures.
19 Here we'd be talking about primarily the p'ossibility 20 of discovery and direct -- cross examination- by ' the - -
21 parties. I'll get to that a little bit later on.
22 We've got attached' to .the paper 'some.
-23 nominal time-lines which attempt to give a fe'el'for 24 the timing and the time required for all these various 25 options. They vary from a little'less'than a year NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS
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j 30 *
{ 1 from notice of proposed rulemaking to final Commioion ,
2 decision to a little less than two years, assuming l 3 there is both an informal hearing and a formal
! 4 hearing. A noninal time for planning purposes, 5 assuming there is an informal hearing of some moderate 6 length but no formal traditional procedures, would j 7 still be something on the order of 18 months from
- 8 notice of proposed rulemaking to final Commission 9 rulemaking decision.
10 That's pretty much in li;ie with ' normal 1
i 11 Commission rulemaking practice. For normal
) 12 rulemakings at the Commission, we've been talking
. 13 about usually a period of about one year from notice 14 of proposed rulemaking to commission final rule. For l 15 a major rulemaking, let's say for example license i 16 renewal, the time period would be normally 18 months.
17 That would not even include an informal hearing. So, 18 18 months is a decent nominal time period to use for.
19 planning purposes.
20 What I propose to do next-is go over each 21 of the steps, but skipping briefly over those steps as 22 to which there was very little comment or disagreement 23 from the parties and commenters.
24 With that, let me begin first by 25 mentioning the.early phases of the rulemaking. Bill l
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e 31 1 has gone over some of those. These are things that 2 could be done before initiation of the rulemaking 3 process with publication of the notice of proposed i
4 rulemaking. These could be very important to the 5 process and they include such things as Federal 6 Eg.olster notice of docketing, which is the standard l
l 7 practice, but also some othe.t innovative ideas. For i
8 example, public notice of availability of various SECY 9 papers, draft and final safety evaluation reports or 10 portions of reports, possibility of public workshops, 11 consideration of various alternative dispute- ,
12 resolution techniques, maybe a newsletter and l
13 consideration of an advanced notice of rulemaking to 14 solicit public comment on select important policy and l
15 regulatory issues.
16 Assuming that's resolved tnough, the next 17 step then is issuance of the final SER and FDA.
18 Following that, a time period to -prepare the rule,
, 19 which would be both tier 1 and tier 2 and - the l
l 20 st3tement of considerations or rationale to support 21 the proposed rulemaking notice.
22 We're talking still here.about a nominal 23 period of 90 days between issuance of the FDA _. and 24 -issuance of the final rule. To respond to
. Commissioner Remick's question, this is designed for
~
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHOOE ISLAND AVENUE. N W.
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32 -
1 two purposes. One is we're assuming that it's going 2 to take some substantial time from issuance of the FDA 3 to actually prepare the notice of proposed rulemaking.
4 As was mentioned this morning, for example, tier 1 5 itself, including the ITAACs, could end up comprising 6 hundreds, maybe thousands of pages. This has got to 7 be carefully reviewed. For the first one especially, 8 it's going to involve some possibly dif ficult drafting 9 questions. That's even assuming there is, as is the 10 case for the GE application, a more or less --
at r
11 least currently anyway -- parallel effort to review 12 both the safety analysis report and prepare the 13 ITAACs.
14 Now, as we get more used to drafting these 15 kinds of things, it will not take us so long. But 16 we're assuming it will take some time to do that for 17 at least the first couple.
18 COMMISSIONER REMICK: Marty, the thing 19 that I question, the paper does indicate that the 20 staff plans to-do in parallel a draft of that. I 21 thought if there is a draft, then 90 days to me seem 22 like a long period of time. If it was just a 23 contingency, I could understand, but I'd hate to see 24 it to be a line that we lived with or we didn't have 25 to live with it, especially if there is going to be a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE. N W.
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. 33 t
- 1 draft in parallel.
j' 2 Mk. MALSCH: Frankly, we were. assuming in i
i 3 this that the draft would be not all that advanced at-l 4 4 the time of the - FDA. If we had a complete draft 4 5 available that had been signed off by the staff, then i
j 6 you wouldn't need- the 90 days for that period. You ;
i j 7 might need a period for Commission' review, but that j -
- 8 would not necessarily have to be as much as 90 days.
i 9 Another reason though wths ue were counting 10 the 90 days really as part of the _ public comment i 11 period. So, we're taking credit for some part of that 12 early process in selecting the comment period. Of
]
13 course that's a matter of judgment. But we did-intend 4
14 to have a public notice of ava'ilabilit!y of the FDA and
- 15 SER and in a realistic sense intend to'say that that
- 16 in a sense began the comment period, at least on the 17 technical aspects of-the design that were illuminated i 18 and set forth in the FDA.
i
- 19 COMMILSIONER REMICK
- .But you're not
[
- _ 20 saying the 120 days though is possibly overlapping the 21 90 though?
- 22 FR. MALSCH: No, no. The 120-days would 23 be on top of the 90. But I think our recommendation 24- Of 120 was assumiMT that- there was, still .some period-
{ 25 of time earlier in which. commenters could do some NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS a
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34- -
l 1 initial preparst. ion.
- 2 COMMISSIONER REMICK
- I see.
3 3 MR. MALSCH: If we had, for example, 4 contemporaneous publication of the notice of proposed
}
l 5 rulemsking and issuance of the FDA, I think we'd want 6 to think carefully again about our 120 ' day 7 recommendation, perhaps add a few more days, maybe a f 8 month or so. It would depend on the circumstances.
- 9 COMMISSIONER REMICK
- Yes, i,
l 10 MR. MALSCH: That gets rr to the comment 11 period question.- There was s" substantial 5 12 disagreement ame ng workshop ' participants- and 13 commenters as to whnt was an adequate comment period.
i 14 We originally recommended 90 days. That was ,
t 15 contingent upon several factors, including 16 avsilability of some prior period of time before then I- 17 of a resscnably complete application, public notice of
( 18 that application, little or no proprietary information 19 problems and so forth. There was some support for the j 20 90 day commc.nt- period if these premises were j 21 satisfied. On tne other hand, other people, for l
i 22 example OCRE, recommended 150-day comment periu. ,
23 Just to : give you - a ' feel for what are j 24 typical comment periods today, for the ordinary notice i 25 and comment rulemaking today, I think a nominal period-l t
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33 i 1
1 1 would be 75 days. For example, recent rulemakings j 1
2 dealing with such things as nuclear power reactor 3 licensees receipt of waste material shipped off-site 4 for processing, that was a 75 day commer. period. The l
5 commission rulemaking dealing with decommissioning 6 funding for premature shutdown plants which said this 7 would be done on a case by case basis, that was a 75 8 day comment period.
9 License renewal, a more significant 10 rulemaking surely, was a 90 day comment period, 11 although before the notice of proposed rulemaking was 12 published, there was not only an advanced notice of 13 proposed rulemaking, but also a symposium and public 14 workshop which served as a premise for the 90 day 15 comment period.
16 In recognition of our past practice and an 17 effort to accommodate the views of those who thought 18 that 90 really wasn't enough, we have come up with a 19 compromise recommendation of 120 days. This gives a 20 little more time to prepare comments. At the same 21 time, it also allows an opportunity to deal early in 22 the comment period with processing possible requests 23 for access to proprietary information if the 24 Commission should decide that commenters should have 25 some mechanism for gaining access.
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36 -
1 So, our final recommendation was a ,
2 compromise and is 120 days. It's not entirely out of 3 line with the Commission's practice in other kinds of 4 rulemaking proceedings.
5 That gets to the informal hearing stage.
6 The rules provide for an opportunity for informal 7 hearing before a licensing board, but laave many of j 8 the details up to the Commission to decide when it 9 initiates the rulemaking. As before, we are 10 recommending that requests for informal hearings be 11 filed within the written comment period. There was 12 little disagreement about this. As before, we are not 13 recommending that formal standing principles be 14 applied. That is to say we're not recommending that 15 commenters show they have a particular interes' in the 16 proceeding like we do in nuclear licensing cases, and 17 there was little disagreement about that.
18 There was some controversy over what the 19 prerequisites should be for granting an informal 20 hearing. Out recommendation was that there should not 21 be the grant of an informal hearing unless the 22 requestor submits --
has filed written comments, 23 submits in written form with his request what he would 24 like to contain in the written presentation phase of 25 the oral hearing, and demonstrates sufficient NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE. N W.
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. 37 1 qualifications to show that the informal hearing would-2 contribute significantly to the hearing record.
a 3 We made some minor _ adjustments to this.
, 4 There was some criticism of the requirement that the 5 requestor include in his hearing request the actual 6 written presentation requestor intended to make at the
! 7 oral hearing. We clarified to say that we didn't 8 really necessarily expect anything different. We
~
9 would want the requestor to have filed written 10 comments, but all really that is required here would i
f 11 be to indicate to the Commission which parts of the l 12 written comments the requestor would proposa to also i
13 include in the oral hearing so there wouldn't be any
- 14 duplication of presentations here.
( 15 In response to criticisms that we are l- 16 attempting to impose a sort of expert witness standard 17 on those requesting informal hearings, that-is to say l 18 that we were endeavoring to require that actual expert I
j 19 testimony be prepared in advance of requesting the r
i 20 informal hearing, we've clarified that we really-i
! 21 didn't have any such intention. We would recognize 1
f 22 that people other than those who have expert-'
23 ~ qualifications, like PhDs in nuclear engineering, can i
1 24 in fact contribute something meaningful in an: informal. _
25 hearing. All we're- really asking them-to show is that I
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4 5 38 -
1 they have sufficient qualifications to make. a ,
2 meaningful contribution and that the informal hearing 3 won't just be a-rehash of the written comments. It's i
j- 4 really a nominal reasonable kind of requirement, to
) 5 make-sure that the resources devoted to the informal 6' hearing will not be wasted. We did not intend an 7 expert witness standard.
, 8 COMMISSIONER de PLANQUE: Marty, who would 9 judge those qualifications and would you expect to l 10 have criteria in advance?
i-11 MR. MALSCH: We would only-set out the l
- 12 criteria in sort of the general format of outline in
} .
l 13 the notice of proposed rulemaking. We.would expect i 14 that the commission itself would decide that. Since l 15 this is a fairly important process, we . think - the 16 Commission - itself ought to - decide on' granting : the j 17 informal .. hearing requests. There's-really not much
! 18- dispute about that really either among the commenters.
19 That's a little different than the usual practice for t
20 power reactor licensing, whether -- entspt in unusual f
l- 21 cases, _it's simply referred __to a licensing _ board to 22 -decide.-
- i 23 Let's suppose now the- Commission has 1-
.24 received and g: anted an informal hearing request. Tbr l 25 hearing would always consist . of written and oral-i t.
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39 1 presentations and the opportunity for the parties to 2 the informal hearing to suggest oral questions which i 3 the board might ask of the other participants. There l
4 would be a requirement 30 days before the informal 5 hearing begins that participants suggest an outline of 6 their oral presentations and suggest an -- and you l
7 give an indication of what questions they would like 8 to have the licensing board ask directly of the
. 9 witnesses. There wasn't much disagreement about this 10 aspect either.
11 COMMISSIONER REMICK: Was there any
- 12 question about the participants being allowed to ask 13 one another questions? In other words, to elaborate 14 on the question that --
15 MR. MALSCH: Yes, and I'll get to that in 16 a minute.
17 COMMISSIONER REMICK: Okay.
18 MR. MALSCH: There was also, as Bill 19 mentioned, a lot of controversy about our 20 recommendation that the board serve only as a limited 21 magistrate and make no recommendations or decision on-22 the issues. As Bill has indicated,: we have modified 23 our recommendation. We're now providing that the 24 board on issues it was particularly interested in and 25 thought it could make a contrioution on would make, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N W.
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4 1
{ 40 -
1 based- upon the record and public comments, a ,
. -2 recommendation to the commission. We would neither.
4 3 expect nor require the board to issue a recommendation 4 on every issue that was disputed. The board could j 5 exercise its own judgment as to which it thought were
~
6 important enough and which it thought it~could make l 7 the most contribution on.
f 8 COMMISSIONER - CURTISS: I don't want to 9 jump ahead here to the sui sponte question, but given 10 what - you' re recommending on sui sponte, the board j 11 could also make recommendations on issues which were 1 12 not controverted.
! 13 MR. MALSCH: Well,'our thought here was
! 14 that -- yes, but before they would do so'they should -
i 15 advise the Commission first and- get Commission t
i 16 permission. That's more or less in line with the 17- practice in nuclear licensing cases. The boards have i~
18 sui sponte authority to raise issues not raised by the 1
19 parties-in --
j -: 20 COMMISSIONER CURTISS: In the adjudicatory 21 context.
22 MR. MALSCH: In the adjudicatory context, l .23 but must' inform the Commission first before they do i
[
24 so. Here, we would have them not only inform the j .25 Commission but get Commission approval. - Again, that's
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41 1 in line with the idea this is really rulemaking not 2 adjudication and the Commission as the ultimate 3 decision maker really ought to have direct control 4 over as much of the process as is feasible. But we 5 thought that as long as the board was making 6 recommendations, if it saw an issue that it thought it 7 could contribute significantly on and that the record 8 appeared to be inadequate, it could not feel 9 constrained necessarily by issues put in controversy .
10 by the parties, but could go to the Commission and 11 advise them of the problem and ask for Commission 12 guidance.
4 13 The Commission would have options here.
14 It could say, "Go ahead, board, develop the record,"
15 or it could ask for additional input from the staff.
16 It could really do anything really it wanted at that 17 point. Schedule a separate Commission meeting. All 18 its options would be open. But wo didn't want to l
19 preclude the board from even asking the Commission to 20 be given this additional authority.
21- We did think though, as long as .we're 22 talking about sui sponte authority, that there really 23 wasn't any warrant for having the board on a purely 24 procedural point ask for, let's say, discovery or 25 cross examination beyond that requented by the NEAL R. GROSS COURT REFORTERS AND TRANSCRIBERS 1323 RHOOE ISLAND AVENUE, N W.
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42 -
1 parties. We thought that we could rely on the parties 2 to protect their own interests such that if they 3 thought that there needed to be additional procedures 4 that they would request the board would then pass 5 these on to the Commission.
l 6 COMMISSIONER CURTISS: The only l
7 consideration I guess that -- and I haven't personally 8 come down one side or the other on this issue. It 9 does seem to me there are two or three relevant 10 considerations here. One, the sui sponte framework l
11 that you're proposing to replicate here is essentially 12 drawn from the adjudicatory context. As Mr. Parler 13 was careful to lay out at the outset, this is a 14 rulemaking proceeding with the possibility of some 15 supplemental procedures subject to careful Commission 16 review and oversight being impl'emented where necessary l 17 and appropriate.
18 Secondly, particularly in the sui sponte l
19 context, it does seem to me that that question perhaps 20 ought to be evaluated against the-backdrop of the fact l 21 that you up to this point, and as we saw at the 22 meeting this morning and at many meetings like that i
23 subsequent and prior to today's meeting, there will be 24 extensive review of the issues by a whole range of 25 parties, the ACRS, the staff, the Commission in the i
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- j. 43-
)
- 1 context of the policy issues, both technical- - and 2 procedural. You properly point - out that- the 3 procedures under the existing Part 2 do require the-4 board to come up to.- .and would be required'here-as J
- 5 well -- to come up to the commission for review of sui
- 6 sponte matters that they propose _to pursue.
l F 7 But I guess the question that arises in my l
l 8 mind, recognizing that that will take some time to do, _
l-l 9 a _certain amount of time for it to come up to the
{ - - -
J 10 Commission for Commission review, a certain amount of-
! 11 time for our . OGC folks to take a look-at it, our l 12 technical folks to evaluate the issue and-then the l 13 Commission.to make a decision, which sometimes isn't-i j 14 a speedy process around here,'it does seem to me that
. 15 the potential for that kind of commitment of time for j 16 a sui sponte issue in this context ought to be. weighed-17 against the fact that you do have substantial sui j 18 sponte-review, if you will, _ going on'today_and will i 19 throughout the extensive process of reviewing the i
i
[ 20 application. The staff-itself is engaged in this,- the 21 ACRS- and the Commission in their; own_ individual i
[
22- capacities.
i 23- So, while I. haven't.come-down on_one side-l 24 or the other of this issue, it does seem to me that to 1
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i 1 adjudicatory aspects of Part 2, that may be outweighed ,
2 by the fact that you do have substantial review of 3 those questions before you even get to that point.
4 MR. MALSCH: Yes. I think that's a fair 5 comment. Also, I would point out that assuming our 6 recommendation were to go forward and the board were-
, 7 to actually come to the Commission for permission to 8 raise an additional issue, the Commission has 9 available because it is a rulemaking proceeding a
- 10 great many additional options for resolving the issue, 11 open Commission meetings, additional staff 7
12 presentations, referral to the ACRS. So, you'veigot 13 a lot more options.- But=I would grant you that I 14 think the case here is less strong than in the 15 adjudicatory hearing context. Our rationale really 16 was that having gone the additional substantial step
- 17 in providing that the boards could -make l -18 recommendations on controverted issues, we thought it 19 was sort of a small additional step, albeit with some l 20 cost,- to have them come to the Commission- for i
i 21 permission to raise additional issues. The rationale 22 really didn't go much more-beyond that.
23 COMMISSIONER CURTISS: Okay..
- 24 MR. .MALSCH
- Let me mention a few other I -
25 issues dealing with _ the conduct of the hearing.
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l 45 l, 1 Consolidation of parties and issues was something we 2 had recommended. There was really no dispute and-l 3 argument that that was a good idea. There was, I 4 thought, some surprising concern about our f 5 recommendation that as a matter of routine the staff 6 and applicant for the design certification be given 7 opportunity to file responses or rebuttals to both the 8 written and oral presentations. There was some 9 concern that this put them on some sort of special i
10 footing. On reconsideration, we're adhering to our 11 original recommendation. I think we still believe 12 that the staff, which after all has spent a great deal 13 of the taxpayers' money to prepare its own l 14 recommendations and findings on safety questions, 15 ought to be heard on issues raised during the informal 16 hearing, and that the applicant as the principal l
l 1
17 source of information and the person which really has 1
18 the burden of proving the safety of this design, 19 really also for that reason ought to be given a chance 20 and a crack at some of the earlier written 21 presentations. So, we are still saying that there 22 ought to be routinely afforded to these two parties a 23 chance to reply to oral and written presentations by 24 interveners and petitioners.
25 The next subject -I wanted to touch just NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHOOE ISLAND AVENUE, N W.
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1 briefly is separation of functions and ex parte ,
2 communications. There was fairly widespread support i
3 for OGC's original recommendations here.- I think 4 NUMARC was concerned about separation of functions 5 though and we thought that might inhibit free 4
6 communications between staff and Commission. NUMARC 7 also offered up the possibility of not applying ex i
8 parte communication bars until the informal hearing
- 9 began as opposed to our recommendation that it attach 10 beginning with the notice of proposed rulemaking.
11 We are still essentially adhering to our.
12 basic original recommendations. Let me elaborate a l 13 little bit though on them. In terms of ex parte l 14 communications and separation of functions, you have i
15 here a tradeoff between administrative efficiency and j 16 appearance of impartiality and fairness in the
- 17 process.
18 In the case of ex parte communications, 19 the balance I think is-a little easier to draw than in j 20 the case of separation of ' functions. It really is not 21 all that inefficient based upon past practice to-22 document and put in a PDR all communications received.
?
23 from outsiders. Let's say for. example the 'rendor. On 7.
-24 the other hand, doing'so has a great -- offers great
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47 1 impartiality and objectivity in the whole process.
2 For separation of functions, I think the 3 balance is a little more difficult to draw because the 4 impact on efficiency can be more severe. But here we 5 thought that we'd come out with approximately the
. 6 right balance, taking into account the following 7 consideration. First of all, we're only talking about 8 the restrictions on communications between Commission 9 and staff taking place beginning with the grant of an
. 10 informal hearing and not throughout the entire 11 process.- We'd only be talking about restrictions 12 applying to controverted issues in the informal 13 hearing process, and we'd only be talking about 14 procedural requirements being imposed on 15 communications with involved staff. By that we mean l
l 16 the OGC attorneys who have been representing the staff l
l 17 in the informal hearing and staff members who-have l 18 participated directly and substantially in the actual 19 staf f review. That still leaves a great number of so-20 called uninvolved staff who could still be called upon 21 and would be knowledgeable about the process and as to 22 consultations with these people. For example, your t
23 technical assistants, maybe some senior people at NRR, 24 Office of Research. There would be no restrictions at l
25 all on communications, j NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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, -l l
4 8 -- -
I 1 As to communications- with so-called ,
l 2 involved staff, the restrictions would essentially be j l 3 that staff, for example in ' making formal written i
4 communications to you, for example SECY papers, they i
- 5 would be placed in the public document room. -In oral
, 6 communications, it would be an effort made to document h 7 them and put minutes of the meetings in the public 8 document room. That's really all-we had in mind.
I 9 COMMISSIONER CURTISS: So that if I wanted
- 10 to meet with perhaps the only one staff member who has 11- expertise in digital I&C, let's--say we have that 12 limited kind of expertise, and that person is an i
13- involved staff person, I could schedule a meeting with 4
14 that-individual to talk informally orally and to do so
- 15 completely consistent with your recommendations so 16 long as the substance of that meeting was recorded and 17 placed in the PDR7 i
18 MR. MALSCH:. Yes.
l 19 COMMISSIONER CURTISS:- Okay.
20 MR MALSCH: The only other restriction we 4
- 21 need to be careful upon, and this- is true about 22 -communications to decision makers in the case across 23 the board is that you've got to be sure that the final 24 decision in the rulemaking; proceeding is based upon i
25- data publicly available to-everyone and as-to which -
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i.- 49-1 everyone - had- a chance to comment. That usually 2
2 doesn't_ cause any problems as .a practical matter
- 3 because I think the record is going L to be fairly 4 complete. But it would cause a problem if at the last 5 minute, for example, you were to consult with an involved staff member, he were to present to you some 6
J 7 new study or some new data or something which no one 8 had ever seen before. In that circumstance, we might 9 recommend not only that it would be put in the PDR, 10 but that wa also offer -- form the parties and give 11 them a chance to file little comments on it. But that
- 12 would take a case by case review of.the significance 13 and newness of the information.
14 COMMISSIONER CURTISS: Okay.
15 MR. MALSCH: That usually has not posed a 16 problem in NRC rulemakings.
17 CHAIRMAN SELIN: It goes- back to Mr.
18 Parler's basic concept, which is the process by which 19 the information gets out is less important than that 20 there be a complete record, a board decision be made 21 so that all parties will- have access - to ' the same 22 record. There - are a lot .of different ways -- to go 23 through a process, but. as long as- it's fully-24 documented, full disclosed, the end point is much more 25' important-than whether this person or.that person --
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50 - 4 1 as long as it's all down in black and white. ,
2 MR. MALSCH: Right. That's the essence of 3 the whole thing.
4 COMMISSIONER REMICK: Marty, what does it 1
5 mean that the substance of that meeting be put in the j 6 public document room? What do we mean by substance? j 7 Is that an outline of topics discussed or just the 8 topic?
9 MR. MALSCH: I would say it would be an I
10 outline of topics discussed, plus a paragraph or so 11 about the substance of what was discussed.
12 CHAIRMAN SELIN: You're really emphasizing 13 not that it's just a topic, but that it needn't be a 14 full transcript.
15 MR. MALSCH: No. No.
16 CHAIRMAN SELIN: It can be fairly similar.
17 MR. MALSCH: Well, you could do that j 18 obviously, but we weren't recommending that 19 necessarily.
20 COMMISSIONER REMICK: Kind of a summary.
l 21 MR. MALSCH: A summary, right.
22 MR. PARLER: The topic and the bottom line 23 would satisfy me.
l 24 CHAIRMAN SELIN: Right. The Commissioner 25 threw the staff out of the room at the end'of the l
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51 1 session and went on to -- .
2 MR. PARLER: That's the bottom line.
- 3 COMMISSIONER de PLANQUE
- Let me l
- 4 understand. Even if _one of uir or our staffs wanted to i
5 ask a very factual question of a staff member 4
6 involved, you would have to document somehow that this 7 communication took place?
l 8 MR. MALSCH: Sure. Just a note to files l
9 and just put it in the PDR. Maybe include.it-in some 10 service list. Assuming.it's significant and not just.
11 status. For example, a status inquiry, "When do you 12 expect to give your SECY paper up here on the proposed 13 rule?" That's a status inquiry. Or maybe even, 1
l 14 "Where can I find in the record Joe Smith's 15 testimony?" Well, Wednesday transcript, page - 35.
16- Those things needn't be documented.
17 COMMISSIONER REMICK: 'Although I don't 18 have any objection to what you're saying, I must acimit lo that after the admonishments that this was rulemaking, i
2C this leans pretty far toward the adjudicatory.
21 MR. MALSCH: In this respect it leans a l
l 22 little bit more toward the adjudicatory than is
?3 y usually the case, that's correct.
24 MR. PARLER: What we're talking _about is 25 really a policy calls, where you can go either_way_
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52 -
1 because of the reason that you just give that I tried ,
2 to emphasize at the beginning of this discussion.
3 However, the important thing is that the record on 4 which the rule, the final design certification is 5 based should be in the public domain.
6 MR. MALSCH: Let me just mention a few 7 additional issues, additional procedures, requests for 8 additional procedures. Here we're talking about 9 primarily requests for discovery and cross 10 examination. By cross examination I mean not board 11 questioning of the parties. That would be allowed in 12 the ordinary course in the informal hearing, but the 13 opportunity for one party to directly confront and ask 14 questions of a witness for another party.
15 We'd originally recommended that such 16 requests come toward the oral phase of the hearing.
1 17 We've now reconsidered that because the criterion 18 which is specified in the statute for granting such 19 requests, namely a specific and substantial dispute of 20 fact that can't be resolved except without such 21 additional procedures really cannot be satisfied or l
22 even addressed unless you have the record of the 23 informal hearing before you so you can' assess how '
24 adequately it has ventilated the issue. So, we 1
25 thought it was more appropriate to have people file j NEAL R. GROSS l COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE. N W.
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- 1. 53-1 such requests in light of what the informal hearing
- l. 2 had accomplished in terms of developing a full record
) 3 on these issues.
The only exception was discovery. Here we 4
1 5 thought that first of all from a schedule standpoint 6 discovery had such a great potential to add to the 7 schedule at this late date because it would entail i 8 additional'information, additional rounds of testimony i
9 and preparation and going through the process sort of
! 10 all over again. We ought to try to resolve those 11 disputes earlier rather than later.
i 12 Second, we thought that it ought to be i
! 13 feasible for the parties to look at the written record j 14 in an early stage and come up with recommendations as i
15- to the need for discovery because at the early phase
- 16 there will still be the entire application, the i 17 complete staff safety evaluation reports and the l
l 18 entire notice of proposed rulemaking. Most of the.
i
( 19 proprietary information at issue, 'if ' there is any 20 issue, is going to be referenced in the application 21 for the design certifications so there will be nothing
, 22 secret about it- being -in existence at that early point t
- 23 in time. To the extent that proprietary information l
l 24 is used in the' safety evaluation report,.that should 25 be apparent on the face of the safety evaluation NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHOOE ISLAND AVENUE. N W-(202) 234 4433 WASHINGTON, D.C. 20005 (202) 234 4433 l
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54 .
1 report. ,
i 2 So, we thought it was entirely feasible to
[ '
3 ask the parties at an early date to file requests for 4 discovery. So that issue could be resolved early on-4 5 in advance of the time required for preparing i 6 testimony and outline of oral presentations for the 1
7 informal hearing. So that could be resolved very j 8 .early on.
l 9 CHAIRMAN SELIN: Could you stop for a
- 10 moment? The fact that I'm not a lawyer is going to f 11- betray me at this point. When you say cross
! l
- 12 examination, does that involve two experts debating-
! 13 their judgment even though they both agree on the 14 data? In other words, any time one witness questions 15 a second witness, that's cross-examination?
i 16 MR. MALSCH: That's cross examination.
17 CHAIRMAN SELIN: Whether it's an
- 18 evidentiary question or not?
19 MR. .MALSCH: That's correct. It's j
l 20 interesting. In NRC practice, most cross examination l 21 is by a lawyer directed to an expert witness by one of--
22- the-other parties. Our~ rules still provide for, and 23 I. guess it would be an option here as well, for cross 24 . examination to be conducted by a technically qualified f 25 expert in the same field as the person he's cross i NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE N W.
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55 1 examining. That's a possibility. Despite the fact 2 that it appears to be a very attractive option, in 3 fact in practice it has not worked out very well 4 because you end up with instead of expert cross 5 examiners asking questions, they tend to make 6 statements.
7 CHAIRMAN SELIN: It sounds just like the 8 media saying, "Well, you can't let a candidate get up 9 on a talk show."
10 MR. MALSCH: But it is an option that is 11 available.
12 CHAIRMAN SELIN: We do have a bit of a 13 . problem. In testimony last year, the Commission said 14 that we would entertain situations in which people 15 could ask each other questions which were not l
i 16 evidentiary without going through'a formal hearing,
- 17 1.e. discovery and full cross examination. I'm not l 18 sure whether.your suggestion allows us to deliver on l
19 that promise.
20 MR. MALSCH: Well,..we would --
i l 21 COMMISSIONER CURTISS: To be precise here, l
22 did we s'ay we would take a look at the' feasibility of 23 doing that? I don't recall saying we would actually l
24 commit to --
25 ' CHAIRMAN SELIN: No , we said we would NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHOOE ISLAND AVENUE, N W.
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56 .
1 entertain. The phrase ~was we would entertain such a ,
2 discussion. We didn't commit to it,- but we didn't 3 rule it out of hand. So, we would look at it.
1 4 MR. PARLER: I think that we always have 5 to have an open mind about alternative ways of dealing i 6 with issues. That's what alternate disputes 7 resolution techniques are all about. If there is a 8 particular issue or where in the judgment of whoever j
l 9 it is that is presiding that a group sitting around
] 10 the table discussion such as occurred before this body 1
} 11 about a little'over a year ago at Yankee Rowe,.one of 12 the Yankee.Rowe meetings, that wouldLbe desireable.
13 The 52.51, the idea of it is this, beyond f 14 the notice and the comments, to get things resolved by 1
1 15 the most straightforward, less complicated means l 16 possible. If - sitting around the table is one 17 approach, perhaps as a step in a particular set of 18 circumstances prior to any hearings or any formal 19 hearings, that should not be overlooked.
20 CHAIRMAN SELIN: Okay.-
21 .MR. MALSCH: That brings me to-the post-t
! 22 hearing phase. We had provided that all parties would i 23 file proposed findings of facts and conclusions.of law 24 in the form of a draft -final rule which would embrace 25 the issues in controversy and that all parties would NEAL R. GROSS ~
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57 1 file within 30 daya. We also provided that the board 2 would within that same 30 day period also both certify 3 the record and make its own recommendations on the j 4 issues of its choosing so that both would occur within 5 the 30 day period.
6 If we provided instead for a sequential 7 filing, let's say parties filed their proposed 8 findings and rule within 30 days and the board 30 days 9 thereafter, so that the board would have the advantage 10 of the parties' proposed findings on the issues which 11 it, the board, was going to make recommendations, that 12 wouldn't necessarily add 30 days to the schedule 13 because we've allowed in our schedules for a nominal 14 120 day period for Commission decision making 15 following receipt of the last proposed finding.
16 Obviously you needn't wait for the last piece of paper 17 from the -licensing board to begin your decision making 18 process. You could begin that with the proposed l 19- findings from the parties. So, it isn't clear that 1
20 providing for a sequential filing would have such a 21 substantial day for day impact on the Commission's 22 . decision schedule. So, that's an option, a definite 23- possibility.
24 COMMISSIONER REMICK: Excuse me. Are 25 these proposed findings mandatory or optional?
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I 58 -
1 MR. MALSCH: I think we would say that all ,
2 parties should file proposed findings.
3 COMMISSIONER REMICK: What's &he reason
. 4 for that? It sounds adjudicatory again.
5 MR. MALSCH: Well, really, the idea is l 6 that -- let's suppose there's been an informal hearing 7 and lots of'give and take in the hearing. Sometimes 8 it is not exactly clear where things stand in terms of 9 the parties' final positions at the conclusion of a
, 10 rulemaking hearing. The proposed findings serves'a 11 means of enabling all.the parties to sort of recap,
- 12 relook at the evidence and come up with what their
- E, , final-recommendations are in light of what everyone
- a 14 has had to say about the question.
- 15 MR. PARLER
- It might even help those that j 16 are adjudicatory advisors to the. commission.
i 17 COMMISSIONER REMICK: I agree that -- I i
- 18 think we're going to have in general-possibly a spread t
I 19 of parties here with capabilities, resources and so l
20 -forth. To mandate that they come up with a proposed i
21 form of-the rule and-so forth, parties-_with limited 22 resources, either financial or technical, I'm not' 23- quite sure why mandatory is necessary. --Certainly
. 24 there would be a number of parties.who would want to I-25 do it, I would like, but to require every party --
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.. 59 j, 1 MR. PARLER: I certuinly agree with-i 2 Commissioner Remick that if it's something that would 3 be mandatory across the board and it would be fatal if i
4 the requirement were not followed no matter what, that j 5 would not be an approach which I.would endorse. So, .
6 if it's in the. paper, I would want_to change that.
7 COMMISSIONER CURTISS: As I understand it,-
8 to be precise, you are recommending that all parties 9 and the licensing board be required to file findings 10 within 30 days, but that if a party does.not file 11 findings that that shall_not_-- that won't result in 12 the dismissal of that issue that that party may have 13 been involved in from the consideration by the 14 Commission.
'l 15 MR. PARLER: There's nothing in the paper I 16 that requires the licensing board to file findings.
i 17 .They can make their recommendations if they wish, i
18 MR. MALSCH: I would expect-though-that 19 most parties, if they've participated substantially'in 20 the hearing, are going t'o go to the extra _ effort to l
l 21 make sure that their.finalIviewc-are articulated.
I 22 COMMISSIONER de PLANQUE: But you're'not' 23 requiring them to.
24 MR. MALSCH: We wouldn't hold them in 25 default, throw them out, not discuss the issue further
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60 -
1 if they didn't file a proposed finding. ,
2 COMMISSIONER REMICK: But you said not 3 only proposed findings but proposed rule?
4 MR. MALSCH: Well, proposed findings in 5 the form of a proposed rule language on the issues, 6 just on the issues that they are interested in. We 7 wouldn't require them to go through the entire book.
8 For example, they might take the proposed rule and 9 mark it up as to how they wciuld change it.
10 MR. PARLER: It would depend on what the 11 issues are that are in the hearing and how far -- the 12 scope of them vis-a-vis the rule that the Commission 13 has to come up with.
14 MR. MALSCH: Okay. That next brings me to 15 the subject of proprietary information, which was 16 probably the most difficult subject we had to grapple 17 with. Let me begin by sketching out what Part 52 as 18 it currently stands says about this question.
19 Part 52, as it currently stands, provides 20 specif1' ;11y that the design certification itself, 21 what we now call tier 1, will be non-proprietary.
22 There has never been any discussion or dispute about !
23 that proposition. The rule also provides that other ;
1 24 proprietary information that provided a basis for the '
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61 1 docket would be made available to the parties but 2 using the same general technique as we would follow in 1
3 adjudicatory cases, wnich is to say that we would not
- 4 fol2pw the approach in othi.r rulemakings of requiring
, 5 that all information, proprietary or otherwise, which 6 served as a critical basis for the rule be mado 7 public. We would allow for the possibility in the t
8 design certification rulemaking that there could be 9 information which formed a basis for the rule that
, 10 would not be made public and instead would be made are 11 available to parties who willing to sign 12 appropriate non-lisclosure agreements.
13 Now, the difficulty has been twofold.
14 First of all, when Part 52 provi M tuut information 15 that served as a basis for the rule but was not in the 16 rule itself could be withheld from public disclosure, 17 there was no contemplation of a tier 2 rule. So,
, 18 there was no discussion or certainly no resolution of 19 the issue of whether there could be a proprietary or 20 partially proprietary tier 2 rule because when-the 21 Commission promulgated Part 52 there was r.o such thing
- 22 as tiers. - All the commission had in mind specifically 23 in Part 52 was tier 1 and that's all they thought 24- would be published in the Federal Reaister. So, that 25 isme is left unresolved.
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3 1
a 62 -
1 Also left unresolved was exactly how we
) ,,
2 would apply the adjudicatory analog in a rulemaking j 3 context. In particular, would mere ccamenters be 4
i 4 considered like parties and thereforc be given a 1 5 chance to attain access to proprietary information, t
6 That was not resolved. It was just a detail that was
! 7 left to be resolved later on.
l 8 The NUMARC proposal is still -- I think in 9 their heart. of hearts they would like to have the 4
- j. 10 possibility of at least.a partially proprietary tier
$ 11 2 rule, reserving- proprietary portions to details i 12 wh.tch contain accepta};1e techniques for resolving and 13 settling various ITAAC questions. These would be -
t 14 part of tier 2. Br. r. I think they recognize that some 15 of the difficulties here and as a fallback would say 16 that they would endeavor to scrub their application of -
17 all the proprietary informatic.: they possibly can with 18 a view toward having a rule which relies on an
! 19 absolute minimom amount of proprietary information.
20 They would then say as -a fullback that tier 2 then i
i 21 would be non-proprietary. and that the residual I 22: proprietary pieces of the application' which might ,
-23 otherwisc be included in tier 2 they would not include i
24 -in tier 2 and instead they would have staff review l
25 those, they would be approved on a staff level basis
, NEAL R. GROSS l COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE. N.W.
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63 1 but would not actually be in tier 2 of the rule. It 2 would not actually have the kind of issue preclusion 3 associated with normal tier 2 material.
4 So, the industry fallback position is 5 basically a non-proprietary tier 1 as had always been 6 proposed and a non-proprietary tier 2, but recognizing 7 that the tier 2 they have in mind here might contain 8 some small gaps. That is certainly an option.
9 CilAIRMAN SELIN: liow does that line up 10 with the options in the paper?
11 MR. MALSCll: We have both those options 12 set forth in the paper for Commission consideration.
13 There is a second question though and that 14 is even assuming you've resolved the issue of whether 15 you can have a proprietary rule in tier 2 or a 16 partially proprietary rule in tier 2, there's a 17 question about availability of proprietary information 18 that is still found in the docket. Now, it cocid be 19 information which the staff actually relied upon, 20 notwithstanding vendor and staff's effort to scrub the 21 docket of all material except that absolutely 22 necessary, or it could be information that tho staff l
l 23 in final analysis decided it didn't really need, but 1
24 the information is still there in the docket and 25 parties might want access to it to look into the NEAL R. GROSS COURT REPORTERS AND T' " SCRIBERS 1323 RHODE ISL ND 4VE.4!,t., N W.
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1 details or to verify some aspect of the staff review. ,
2 In either case, we know that there is a 3 lot of proprietary 11 formation at least referenced in 4 footnotes in other places in the application. It's 5 quite likely that parties interested in preparing 6 comments and commenters interested in preparing 7 comments migiit want access to some of this material, 8 and the issue arises as to what we will do to provide 9 mechanisms for granting or denying such access.
10 Her6 se have a paper that sets out three 11 alternatives. Under all alternatives there would be 12 a non-disclosure agreement signed by the party as a 13 prerequisite to gaining access. Typical non-14 disclosure agreements that are used, that have been 15 used in the past, and we would expect would be used 16 here, would name the actual individuals as to whom 17 access is being granted, typically a few expert 18 witnesses, maybe some clerical staff and an attorney 19 and no one else, would provide that the material only 20 be used by these individuals for the purpose of the 21 proceeding and no other purpose. It may not be 22 disclosed to any third parties and probably provide 23 for return of the information following conclusion of 24 the proceeding. That would be a typical outline of a 25 non-disclosure agreement.
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, 1 Also under all options we are no longer i 2 recommending use of the PDR as a means for granting i
3 access. Instead, we would propose a practice more in 4 line with the practice in licensing cases. That is I 5 that parties seeking access first go to the applicant i 6 or vendor for access. If that's denied, then come to a
4 7 the commission for an order compelling access to the 8 documents.
9 The options with those two elements
) 10 constant would be, first of all, to grant access to s
l 11 all commenters. Anyone who wishes to file comments in
! 12 the comment period would be - given an opportunity 13 request access.
l*
14 The second option would impose a showing i
) 15 on someone seeking access that the existing 6
, 16 information in the docket is not sufficient. Now,
-17 this could be important if an effort has, in fact,
[
! 18 been made to scrub the docket . of non-essential l 19 information. That would be a meaningful requirement 20 _to impose.
21 Thirdly,-we would suggest as part of this i
- 22 option that the requestor make some showing that ~he L -23 has the expertise to make use of the information in-a 24 way that the record could be contributed to. This 4
25 would screen out people who have a pure academic I
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1 interest or a passing interest in a problem or people ,
2 who have no apparent expertise to actually use the 3 information in a meaningful way.
4 The third option is the one proposed by 5 hUMARC and on top of the requirements which I just 6 outlinod, they would also simply confine access to 7 parties to the informal hearing. People interested in 8 commenting and commenters would have no chance to gain 9 access.
10 Those are the three options and we set 11 them all out in our paper. As Bill indicated, we've 12 got a more substantial discussion of all those options 13 in a separate legal analysis which we provided to you.
14 COMMISSIONER CURTISS: Marty, you didn't 15 mention or maybe I missed it that as part of the 16 NUMARc fallback position here after reducing the 17 proprietary information to what they call the 18 irreducible minimum that what would be set forth in 19 the application and presumably then contained in 20 either tier 1 or tier 2 would be a non-proprietary 21 description of the issue that the proprietary 22 information would address in more detai? with, of 23 course, the proprietary information beincj treated in 24 the fashion that you've outlined. How significant 25 from the standpoint of our procedural questions is it NEAL R, GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE. N W.
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- 67 1 1 that they would describe in a non-proprietary way that 7
i l 2 information in the actual application for inclusion in i
l 3 the certificate?
4 MR. MALSCH Well, if the information is I
5 actually relied upon byu the staff, that would be very 6 significant. Hopefully you would W.nt to reach a
! 7 situation in which thn staff could rely only upon non-8 proprietary information so that you could honestly say I. 9 that the rulemaking record and Commission decision 1
- 10 will place no reliance whatsoever on proprietary i
j 11 information. That would be very important if that i
12 could be done. I think that is basically part of the f
l 13 recommendation. The * ;pectation-is that there could l 14 still be some information which the staff needs to a
! 15 rely on on a proprietary basis. Au to that l 16 information, you would lift that out of_ obviousif tier 17 1. It couldn't be part of tier 1. But lift it out of
! 18 tier 2 and it-would be resolved at a staff level but 4
19 there would be no issue preclusion at the Commission 1
20 level.
- 21~ I think it's too_ early to tell how
- 22 successful we will'he in eliminating all proprietary 1
23 information from materials relied upon by the' staff.
24- The process is just beginning_in that respect.
'25 COMMISSIONER CURTISS: To be preciso here,-
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1 if the staff concludes that it needs to rely upon the ,
2 proprietary information to make its safety decision, 3 that information has to reside in tier 1 or tier 2, 4 doesn't it? Tier 2 here if it's proprietary.
. 5 MR. MALSCH: Well, the original concept of o tier 2 would suggest nn affiruative answer to your 7 question. But tier 2 is not chiseled in stone. It's 8 not actually described at all in Part 52. So, the 9 Commission does have the leeway of adopting a slightly 10 different concept of tier 2 whereby tier 2 would not, 11 in fact, contain all the essential safety information.
12 COMMISSIONER CURTISS: Let me put it in 13 the context of what Part 52 originally said. If the 14 staff needs to rely upon proprietary information in 15 order to make its safety determination, that 16 information has to be in . aded in what we certify.
17 Would that be a more accurate way to put it?
18 MR. MALSCH: It would have to be included 19 in the rulemaking record, but not necessarily the 20 information you have to certify. After all, the 21 information you certify is really tier 1. Tier 2 has 22 variously been described as a more detailed 23 explanation of one satisfactory way of meetir.g tier 1, 24 including the ITAACs, and as setting forth all the 25 information which is important and essential for the i
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) ,
1 staff to make its safety conclusion. I think we're 2 still feeling out and working our way through exactly 3 what tier 2 will actually constitute.
4 Under the industry fallback suggestion, 5 tier 2 would then for this serve irreducible minimum i 6 but apparently hypothetically necessary amount of 7 proprietary information. Tier 2 would not, in fact, 8 include all the information which supported tier 1.
9 There would be some information missing that would be 4
10 in the rulemaking docket but not part of the 11 rulemaking itself, not part of the rule itself.
12 CHAIRMAN SELIN: It's an illuminating 13 discussion. I need to tell you how I feel about that 14 point. Tier 1 is the bottom line. Tier 2 is a 4
15 sufficient set of arguments to arrive at tier 1 which 16 must be non-proprietary. In other words, in my i
17 opinion if a vendor comes in and will not put that 18 information in, there's no certification. However, 19 there can be other information, a second or a third 20 way to establish the point in addition to the tier 2 21' point that the vendor might make available to the 22 staff so that the staff feels that, in fact, every 23 avenue has been explored which wouldn't have to be 24 proprietary and I leave it a separate question about 25 whether other people get to see that or not.
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1 But in my own opinion, the logic of the ,
2 certification drives ineluctably to having at least a 3 sufficient set of information on a non-proprietary 4 basis for the staff to make a safety finding and then 5 of what we call in the research area confirmatory 6 type, there might be proprietary information outside.
7 But a gap in the hole just is not consistent with the 8 concept of a public decision publicly arrived at.
9 MR. MALSCH: You're right, it does cause 10 complications. Let's say, for example, let's take the 11 environmental qualification area as an example. Let 12 us suppose you had. an ITAAC- which said, just for 13 purposes of discussion,."The following equipment list 14 located within containment must be environmentally 15 e dalified to meet a harsh environment." That's in 16 general words. Then you had tier 2 were to include a 17 very elaborate document which is proprietary which was 18 setting forth exactly --
an acceptable method of 19 exactly how one might satisfy this. If you can't have 20 that as a part, of tier 2, you're left with a- rule with 21 only a very general requirement to be satisfied and no 22- issue preclusion associated with the details. That's 23 going to cause some problems.
24 CHAIRMAN SELIN: Okay.
25 MR. MALSCH: That concludes my NEAL R. GROSS COURT REPORTERS AN3 TRANSCHIBERS 1323 RHODE ISLAND AVENUE, N W.
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1 j
- . 71 l 1 presentation, so, any further questions? We're all j 2 here.
3 MR. PARLER: Mr. Chairman, there was one 1
4 question that was posed by commissioner curtiss about 5 the funding of public participants. The paper simply
- 6 said that the commission considered developing 7 appropriate mechanisms for funding prior to the time 8 that the rulemaking proceeding started. We didn't 9 have anything particularly in mind other than that.
10 There were no in-depth studies or other studies af ter 11 the rulemaking starts and there aren't certainly any 12 sort of hearings. I think we're without authority to 13 provide funding there.
14 MR. MALSCH: Yes. Our appropriation 15 statutes have for a long time included a prohibition 16 against spending any appropriate funds to compensate 17 parties intervening in regulatory or adjudicatory 18 proceedings. That would certainly include rulemaking 19 proceedings on design certification.
20 I think what we had in mind as the only 21 realistic possibility would be a situation in which it 22 appeared that alternative dispute mechanisms might be 23 available very early on and we might consider some 24 modest funding, for example to attend taeetings or 25 things of this sort. That's probably the most NEAL R. GROSS CC5URT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N W.
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1 realistic thing to consider. But it's at least a ,
2 possibility and we didn't want to rule it out 3 categorically under all circumstances in the paper.
4 COMMISSIONER CURTISS: You cite the 5 proceeding that we have underway on the participatory 6 rulemaking. We've called it a lot of things recently, 7 but participatory rulemaking as an example of what you l l
8 have in mind here. Recognizing that that, as I 9 understand it, will provide for funding in some 10 limited circumstances, just simply for people to ,
11 attend the various meetings around the country, plane 12 fare or what have you, do you envision here -- I got 13 the impression from your discussion in the attachment 14 that you contemplate something going beyond that here.
15 You would actually be funding in order for parties to 16 prepare on substantive issue arising out of the fact 17 that we've made the distinction that we cannot do that 18 after the proceeding begins here under our 19 appropriation.
20 MR. PARLER: May I comment on that? If 21 the paper is subject to the interpretation that we're 22 suggesting that the Commission adopt as guidance using 23 money, appropriated funds or other funds to prepare 24 people to participate, that's not what I had in mind 25 at all. What I had in mind, what we had in mind is if
! NEAL R. GROSS
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73 1 there are people out there that it would appear after 2 looking at the situation would be able to make a 3 contribution or at least they have an issue that 4 should be heard and they should be allowed to express, 5 and if they need some modest funding in order to 6 satisfy their logical needs which they couldn't 7 otherwise satisfy, that's the sort of thing that I had ;
8 in mind. Certainly not to prepare people that are not 9 otherwise prepared.
10 COMMISSIONER CURTISS: Okay. The language 11 in the paper that caught my eye was you're 12 recommending that we consider development of 13 appropriate mechanisms for funding of representative 14 members of the public to provide advice on a proposed 15 design certification and that's why I was unclear as l 16 to whether you weto --
l l 17 MR. PARLER: I wasn't suggesting to 18 prepare them to provide advice.
19 COMMISSIONER CURTISS: Okay. What you I
20 have in mind is the same kind of funding that we've 21 entertained in- the context of the enhanced i
L 22 participatory-rulemaking?
- j. 23 MR. MLLSCH:. That's at least what I had in 24 mind when I passed on that <--
25 CHAIRMAN SELIN:- The subsidy is for the NEAL R. GROSS l
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74 -l 1 provide, not for the advice. So, they can be here to ,!
2 provide --
i 3 MR. MALSCH: Right.
4 MR. MIZUNO: You wouldn't be hiring a 5 consultant, in other words, to do a freewheeling 6 review of a design certification.
7 COMMISSIONER CURTISS: Okay.
8 CHAIRMAN SELIN: Stay here. Judge Cotter
~
9 has a comment or two he cares to make. Let's hear 10 that and then we'll have the wrap-up questions. Just-11 stay right there, please.
12 Good morning. We welcome you whether 13 you're a_ partial or full magistrate today.
14 JUDGE COTTERt Thank you, Mr. Chair. Now 15 that your eyes are fairly glazed, I have only two 16 brief points I'd like to make.
17 I have -- we think the Office-of General 18 Counsel has done a very credible job in dealing with 19 this whole issue and prescribing a procedure for you 20 to do in these circumstances, for you to follow. We
'21 have participated through our legal counsel and.had-22 opportunity to comment. Most of our_ comments have-23 been -- the concerns have been taken care of.
24- However, there are two items that remain 25 -that we think need- further attention by the NEAL- R. GROSS COURT REPORTERS AND TRANSCRIBERS l 1323 RHOOE ISLAND AVENUE. N W.-
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75 1 Commission. We would have worked these out with 2 General Counsel, but through oversight we didn't see i
3 the paper until late last week.
4 The two issues that I wanted to comment on 5 were one, the post-hearing conditions, and.second the 6 special licensing board.
7 We think that the two post-hearing 8 conditions, first submission of the party's proposed 9 findings directly to the Commission and not to the 10 licensing board, and second, requiring the licensing ,
11 board to file findings with the Commission in 30 days 12 would severely limit the value to the Commission of 13 the licensing board's recommendations.
14 The General Counsel now recommends a full 15 magistrate model for hearings on design cortification 16 is::ues. Under this concept, the board would have the 17 discretion to issue recommendations within 30 days 18 following - the close of the record. However, the 19 party's proposed findings would not be submitted..to i
20 the licensing board. Rather, they would go directly 21 to the' Commission. Therefore, any recommendations by l
22 a licensing board would be without benefit of proposed I.
23 findings.
24 CHAIRMAN SELIN: Are you assuming that by -
25 going directly to the Commission they're not available NEAL R. GROSS-COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE. N W, (202) 234 4433 WASHINGTON, D C. 20005 (202) 234-4433
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76 .
1 to the licensing board? ,
2 JUDGE COTTER: Right.
3 CHAIRMAN SELIN: Is that what you meant?
4 MR. MALSCH: Well, the timing was such 5 since they all submitted it in 30 days.
6 CHAIRMAN SELIN: Forget the timing. Is it 7 intended that this record at the end not be made 8 available to the magistrate or be available to --
9 MR. PARLER: It's intended that the record 10 at the end Ond the recommendations from the designing 11 board not await the pro.>osed findings to the 12 Commission. The presiding board only has to make 13 recommendations to the Commission on those particular 14 items which the presiding board has a particular 15 interest in. If the presiding board has a particular 16 interest in something and they need additional 17 guidance from the participants, they do not have to 18 await the proposed findings. They can ask for 19 additional insights-from the participants.
20 That's what we had in mind. That doesn't 21 mean to say that it's right. Judge Cotter's points 22 are probably well taken and the Commission should take 23 those into consideration in striking whatever balance 24 they want to strike.
25 Incidentally, I was responsible for the NEAL R. GROSS COURT REPORTERS AND TRANSCRISERS 1323 RHODE ISLAND AVENUE. N W.
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1 77 1 paper not getting over to Judge Cotter's people in 2 time. I still thought we were operating under a l 3 planning objective of having something that would have 1
4 to be publicly noticed in December. I learned this 5 morning that that time has slipped.
6 CHAIRMAN SELIN: Okay. Fine.
7 Sorry. Would you continue?
8 JUDGE COTTER: One of the functions that 9 we have talked about in the past that a presiding 10 officer or licensing board or any kind of official 11 like that performs is to winnow the issues. In l
12 particular, we stated a paper in response to the May 13 8th preliminary paper that typically proposed findings 14 of facts submitted to the board covered only a small 15 fraction of the iscues actually litigated. The same 16 thing, we think, holds true of rulemaking.
l 17 Consequently, adversaries often during the course of 18 the proceeding become convinced that a particular 19 issue is not one that they want to continue to pursue.
20 They get additional information, whatever it is, and 21 it seems not particularly beneficial than to deal with 22 all the issues when some of them are not of 23 significance either to the parties or even tu the 24 proceeding.
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- 3 1 up there is a requirement that all comments or issues ,,
2 be addressed during the course of the proceeding. I j 3 think there ought to be a little bit more flexibility 4 in that respect. By that I mean the ability to make 5 a finding that a given issue not need to be addressed
^
1 6 if the board so finds that it's not significant to the 1
7 proceeding.
! 8 The other point to be made in this 9 connection is process. Typically a well organized, f
j 10 well funded intervenor -will be preparing their j 11 findings as they develop them, as they go through the 12 proceeding, as they deal with the issues so that 13 normally there's not that long a waiting period in
! 14 order to deliver the findings. There's not always a 15 necessity aither that they be serial. In the case of 16 the boards, they have to stay focused on the record as l 17 it develops and don't have that luxury. They have to 18 deal with everything that comes up as it goes along.
19 So, there's not the potential for delay that you might 20 otherwise expect.
21 Basically we think that consequently this 22 model that's being recommended has three shortcomings.
- 23 It denies the board and thus the commission the 24 benefit of the party's analysis in preparing a 25 recommendation on the issues. It withholds from the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE. H W.
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-l
- 79
', 1 board important information about those issues no 2 longer in controversy, and the 30 day time period, 3 even with prompt proposed findings, is not realistic.
4 I heard Mr. Malsch mention earlier in explaining the 5 90 day time period needed from final design approval 6 to the initiation of the proceeding that there may be 7 hundreds and even thoughts of ITAACs. I don't think 8 the Commission would get an awful lot of help out of 9 trying to address something of that size in 30 days 10 and make recommendations on it.
11 Secondly, the second point that I wanted 12 to address was the special licensing board. As the 13 OGC paper recognizes, the Commission has the authority 14 to appoint the particular members of the licensing 15 board established to conduct a hearing on the final 16 design approval. As the panel chairman now does in 17 staffing hearing cases, the Commission has to ensure 18 that a board convened to' conduct the design l
19 certification hearing consists - of the most capable 20 individuals available. '
21 In exercising this prerogative, the 22 Commission can choose from among the full-time and 23 part-time judges presently on the panel and they can 24 choose from anyone outside the panel. Although the t
25 -backgrounds and trainings vary, all of these l'
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l 1 individuals on the panel have been appointed to their ,
2 positions by the commission on the basis of their
! 3 expertise and experience in numerous nuclear-related f
- 4 fields.
i 5 The Commission also can choose to 6 designate individuals who are not panel members, as I i
?
7 mentioned. In doing so, however, it's not clear that j 8 the commission would draw from a talent pool any i -9 larger or better than that utilized to select the J
- 10 current licensing board members. In this regard, I am 11 told that the closest available precedent, the OESMO 12 proceeding, had four lessons learned. One was that 13 the blue ribbon panel, that staff did not have l 14 credentials materially different from then available i
! 15 licensing panel members. Second, the GESMO proceeding i
- l. 16 was substantially delayed while board members were l
17 found to sit, presumably, I imagine, because of a 18 conflict of interest problem with those who were 19 knowledgeable about- this issue or involved in the l 20 industry somewhere or other. Third, the GESMO board 21 never finished the proceeding and at best got only
( 22 about halfway through it. Finally, the GESMO board i
23 lacked experience in conducting any kind of 24 administrative proceeding,;rulemaking or otherwise.
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1 to support this proceeding any way they can.
2 CHAIPMAN SELIN: Why have professionals if 3 we're not going to take advantage of them?
4 JUDGE COTTER: Something like that, yes, 5 sir.
6 COMMISSIONER CURTISS: Judge, could I ask 7 you -j ust one quick question? Under the approach 8 that's been proposed here by OGC, of course as we've 9 heard this afternoon the board would have the 10 discretion but not required to file with the 11 Commission what are called non-binding recommendations 12 in this paper. Now, let me, as a lawyer, stipulate a 13 couple of things here. First, that if you have the i
14 discretion you will probably wish to exercise it, but 15 that it's a logical cxpectation at the conclusion of 16 the proceed'ng. Secondly, that a non-binding 17 recommendation, that is to say not binding on the l,
18 Commission, is in one respect another way to say an i 19 initial decision. An initial decision itself, of 20 course, is not binding upon the Commission in the i
21 legal sense.
22 But with those two observations, if you.
23 structured the back end of the process, that is to say 24 at the conclusion of the hearing before the board in 25 the fashion that you've recommended in terms of who NEAL R. GROSS l
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i j 1 files findings with whom and then what the board's ,
l 2 process is, do you see any significant differences at l 3 that stage of the process from what you've describad i
. 4 when compared to what we would normally have in an i 5 adjudicatory proceeding today?
6 JUDGE COTTER: In essence, no.
l 1
j 7 COMMISSIONER CURTISS So you're --
l 8 JUDGE COTTERt It's more_ flexible, of
- 9 course, because you're not writing a decision that you 1
10 know will be binding if the commission doesn't touch 11 it. But in terms of the care that's required to
- 12 articulate recommendations, there's no difference.
j 13 COMMISSIONER CURTISS: As a practical 14 matter, if the approach is adopted and with, of f 15 course, the suggestions that you've made incorporated, 16 we'd essentially be faced with -- not faced with, we'd t
l 17 have a process that looks very much like the l
l 18 adjudicatory process at the point that concludes with l 19 the hearing and from that step forward for you to i
l 20 prepare your initial or partial initial decision.
21 JUDGE COTTER: I'm not sure how to answer 22 that. Obviously if they're recommendations,- it's 23 different in terms of the impact of tho decision. In l
. 24 terms,of the process of giving you something in the l
l' 25 form of recommendations that would be useful to you, .
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,w,, .,%,
I 83 1 essentially the process would not be different, what 2 I'm talking about.
3 COMMISSIONER CURTISS: It sounds very much 4 the same.
5 JUDGE COTTER: Yes. But that's just the 6 normal -- the adjudicatory process -- aside from the 7 rulemaking procers, the adjudicatory process does two l
8 things. The first of them is that it winnows out and 9 defines what's significant. The second thing it does 10 is it articulates a carefully reasoned decision that 11 will be ultimately, if we've done our job properly, 12 what I call litigation proof. That is, the risk of i
l 13 litigation will be significantly reduced as to those 1
14 issues subsequently. Here you're going through a l
15 process. The process is new, the subject matter is ,
16 new. I think the General Counsel has clearly been 17 trying to deal with the risk of subsequent litigation l
1 18 and will narrow them or eliminate them to the extent 19 possible. But anything that's new is going to bring 20 in that kind of a risk.
21 So, what you want here, I think, is a 22 process that ensures _ that the Commission gets the most 23 usable document that it can.
24 COMMISSIONER CURTISS:- Yes. Although the.-
L 25 logical extension of that would be to say we ought to NEAL R. GROSS
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- 1 judicialize the entire process. -
i
{ 2 JUDGE COTTER: I don't think so at all.
1 l 3 I don't think so at all.
4 COMMISSIONER CURTISS: Okay.
) 5 MR. MALSCH: I just want to make a few ,
6 aort of brief comments. Our recommendations here were l j 7 not at all driven by some concern about making the
)
j 8 rule litigation proof. Everything we're doing here-9 beyond providing an opportunity for notice and comment i
10 is gratis. It's not required by the APA. So, we're i
. 11 giving discretionary additional rights.
12 Secondly, that there is --
in -an 13 adjudicatory context, there is law and' lots of case
, 14 law on exactly what the duties of the board are in i
15 writing a decision. Among other things, they must >
16 cite to all the various portions of the record. They l 17 must address all the parties' proposed findings. Now, i
I 18 I don't mean to the suggest that the board wouldn't
- 19 want to do similar things in providing you with i
j 20 recommendations, but I do think the fact that this is 21 not an adjudication indicates the board has some 22 flexibility to not absolutely feel compelled'to dot-23 every I and cross every T and cite every transcript 24 reference when it gives you a recommendation.
5 ;
~
i .
a 25 So, we didn't intend by this to suggest-
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85 1 that the board necessarily had to follow in giving 2 recommendations to you an analog that very closely 3 resembled the initial decision analog in formal i 4 adjudications.
l 5 CHAIRMAN SELIN: Do we have any other 6 questions for Judge Cotter at this point?
7 Thank you very much, Judge.
8 JUDGE COTTER: Thank you.
9 CHAIRMAN SELIN: Closing remarks or 10 questions for the General Counsel? Commissioner 11 Rogers?
12 COMMISSIONER ROGERS: I wonder if you l 13 could really just give me a little bit of better l
14 understanding of the full versus limited magistrate 15 distinction and what effect, if any, those choices 16 would have on the length and complexity of the design 17 certification rulemaking hearing itself.
18 MR. PARLER: Well, the essential 19 difference is under the limited the presiding board 20 would simply hear the testimony, conduct the hearing 21 and certify the record to the commission. There's a 22 lot the presiding board would do in making sure that 23 the hearing is conducted properly, et cetera, et L
24 cetera.
25 The difference between that and the full NEAL R. GROSS COURT REPORTERS AND TRANSCRiDE.1S 1303 RHODE ISLAND AVENUE, N W.
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1 or one of the essentially dif ferences is whether they ,
2 would do anymore thhn what I just said. The more 3 would be in those particular areas where they believe 4 that there is something that they would like to give 5 a recommendation on on the basis of the record that 6 was made before them, they could do that. That's the 7 difference, the essential difference. There might be 8 others, but ~-
9 MR. MALSCH: Just make a note. There was 10 no support, I don't think, for the proposition that 11 the board should be required to write a full initial 12 decision. No one was recommending that.
13 MR. PARLER: Nobody at the workshop agreed 14 with that.
15 COMMISSIONER ROGERS: And the question of 16 whether one or the other would be more time consuming?
17 MR. PARLER: I think what the delta is is 18 not entirely clear to me. There would be some 4 19 increased time if they have to prepare the 20 recommendation. I suppose the question which would 21 follow from that is why not a little bit more increase 22 and let the proposed findings be submitted to them and 23 also to the Commission. What those estimates are for 24 the schedule purposes I'll have to have one of these 25 gentlemen --
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', 1 MR. MALSCH: I don't think it's clear that 2 asking for recommendations from the board would 3 necessarily add a whole lot of time to the schedule.
4 I mean it could, but I don't think that's clearly 5 necessarily --
6 COMMISSIONER ROGERS: How they chose to go 7 about it would determino that.
8 MR. MALSCH: That's right.
9 CHAIRMAN SELIN: How long you would wait 10 for it in addition.
11 MR. MALSCH: Or how long you would provide 12 for them.
13 COMMISSIONER ROGERS: Yes. Yes.
14 MR. MALSCH: I mean you do have the option 15 of setting timo limits here.
16 COMMISSIONER ROGERS: Right.
17 MR. PARLER: What does the proposed 18 finding thing going directly to the Commission save, 19 30 days?
20 MR. MALSCH: It's 30 days. But as I said, 21 our schedules here provide for 120 day period for 22 Commission decision making. You could begin that at 23 least on many issues without waiting for 'the last 24 piece of paper to be filed. So, there's some 25 flexibility here to accommodate various rules for the l
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1 board. ,'
2 COMMISSIONER ROGERS: How would you see ,
3 the alternative dispute resolution mechanics being 4 employed and how would a decision be made to go that 5 way? Would this be something that was a decision that 6 would be attempted very early on? Would it be at some 7 later stage? How do you see it being employed and how 8 a decision is made to move that way?
9 MR. PARLER: I will try to answer you 10 first. I think it is very difficult to answer that 11 question generally. I think it all depends on what 12 the issues are, when they are raised, and how 13 ausceptible they are to those techniques. There are 14 numerous criteria that the experts in the area have 15 come up with. So, you just have to assess the 16 situation on a case by case basis. Now, as far as the '
17 timing is concerned, it would be desireable, I would 18 think, to try to do something like that, to use any 19 techniques like that as early on as possible, or when 20 it becomes apparent later on-that if you. don't use 21 techniques such as that you would be in for a more 22 formal on the record battle:about certain issues.
23 Also, a consideration would be whether-the 24 people that you are dealing with, what their 25 objectives are. Are they. indeed interested in NR) R.' GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE 1SLAND AVENUE. N W.
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1 addressing issues, solving problems, solvi.., the 1 2 particular matters that they have nised, or stopping 3 things from happening?
4 CO)NISSIONER ROGERS t What, it occurred to l'
5 'l me that that's a technique that might --
if it is
, d' I
6l employed early on, might be a way r satisfying the 7 commitment that the Commissien may ntve mado earlier
.v for participants to question each other. There's a dormat 1.1 which it certainly can take place without b, d raising some of the other difficulties.
1 ME. PARLER: I certainly would view the 12 Yan4ee-Rowe Corsise,lon meetings as in the category of 5
13 a type of ADR technique. There can be any number of 14 them.
15 COMMISSIONER ROGERS: Yea, Uere are all 16 Linds of possibilit.ies. So: # tbr uld happen 17 withe un people riiving a lot of thought to it.
18 d For example, there are open meetings between staff and 19 applicants. Members of the public can attend those 40 meetings as observers. You could have a natural 21 progression from such a meeting to sort of a free fall 22 discussion in a room afterwards about th - issues. i e
i l 23 That is nominally a form of alternative dispute 24 resolution arc.1 people would not necessarily be
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1 but it could very naturally take place. ,'
2 MR. PARLER: We could ask somebody early 3 on what is it that they have about the particular 4 point of view.that they are espousing. If they have 5 nothing, that might be it.
6 COMMISSIONER ROGERS: It sounds to me as 7 if it offers some real possibilities for getting 6 issues discussed more openly and less adversarily 9 early on.
10 MR. PARLER: Well, that certainly is true.
11 That's why we have to be alert in this area as well as 12 in other areas to those techniq".es. If you can 13 accomplish an objective fairly and openly without 14 going through the more formal processes, that's what 15 we are trying to do.
16 COMMISSIONER ROGERS: One possib!lity 17 would be in the notice of docketing of the applicacion 18 or some advanced notice of rulemaking very early on 19 offer up -- solicit indications of interest on the 20 subject of alternative dispute resolution and see wh 3r 21 happens and nake a case by case-judgment.
22 Th9 switch from expert witness to 23 contributes significantly requirements, what really 24 led you to make that change? I'm a little concerned 25 about how t? e "contributas significantly" is going to NEAL R. GROSS COURT REPOR;i MS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE. N W.
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- 91-3 be interpreted. It sounds pretty loose to me.
2 MR. MALSCH: Well, first of all, I don't J 3 think that the perception, I think, of what we had 4 intended was-not exactly what we had intended. I 5 don't think we ever strictly speaking intended an 6 expert witness test, although that was the perception 7 on the part of some commenters. So, we've really l
8 tried to clarify what we origir. ally had in mind. I 9 agree it's kind of a loose test. I th> M our feeling 10 was that we'll have to judge these presentations when 11 we see them. We will see the written comments. We 12 will see what they're trying to talk about, have some 13 idea who they are, and I'm not sure we can fashion or l
l 14 would want to fashion in advance any kind of a very 1! i prescriptive kind of a requirement.
16 COMMISSIONER ROGERS: The problem is to 17 avoid what looks like a completely arbitrary decision 18 that somebody just doesn't qualify.
19 'cIR. I%RLER: It cculd not work that way.
20 That w"ud be unacci ptable. We'd have to agree as 21 definitively as we could in advance what the test will 22 be and then have those established before the other 23 test is applied to any one individual. Otherwise, I'm 14 sure that we would be accused of being arbitrary and 25 capricious and making up the rules of the. game as we NEAL R. GROSS COURT REPORTERS #W TRA* SCRIBE 9S 1323 RHOCE ISLAND AVENUE, N W (202) 234 4433 WASHINGTON, O C 20005 (202) 2344433
92 'a 1 go along. 'that would be unacceptable.: ,
2 COMMISSIONER ROGERS: Okay.
3 CHAIRMAN-SELIN: Commissioner Curtiss?
4 COMMISSIONER CURTISS:. I don't have any 5 further questions. I thought the paper was very well 6 done and I wanted to commend OGC for all the effort 7 that I know you've put in on this, beginning with the 8 preliminary recommendations, the workshop, part of 9 which I attended. I thought the process for eliciting 10 a wide range of public comment was extremely valuable.
11 In fact, this is - an approach that we ought to
-12 consider-in other contexts in the future. I commend 13 those of you who worked very hard on this, as I'm sure 14 all of you did.
15 I thought the recommendations as well were 16 thorough in fleshing out the ' advantages and 17 disadvantages. I still have some questions about the-18 full magistrate role. I'll-be interested in seeing 19 hcw the interaction between the NUMARC representatives 20 and the staff on proprietary information' proceeds.to 21 see if that's, in fact, a workable approach. I'ye 22 expressed nyself on sui sponte,- separation of 23 functions and the; funding question that you've
-24 eddressed In this paper.
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. 93 1 help me in taking a look at the full magistrate issue.
2' The- rulemakings that we conducted, GESMO, the S 3 rulemakings, S table rulemakings, and ECCS, were those 4 ecsentially limited magistrate rulemakings? How would -
4 5 you characterize those?
6 MR. MALSCH: I'll have to refer that to 7 Bill or maybe Gary. I don't remember.
8 MR. -PARLER: I left my notes on that l 9 question up in my office because I didn't think the
, 10 ,
question would be asked. I think that most of them --
11 or some of them, at least the presiding boards were 12 asked to just certify the record to the" Commission.
13 In the most famous one of all,-that was the case, the 14 ECCS. Unless my memory has failed me, - the Atomic t
, 15 Energy Commission itself wrote the decision having the J
- l. 16 record from the presiding. board before it, cortified 17 to it.
I j 18 The GESMO proceuding never came to a l'
- 19 conclusion, as has already been mentioned,-because of l
l 20 a change in governmental administrations.- Most of
- 21. .them, I think, the presiding board exercised a limited 22 magistrates role. But.if I am incorrect,:I will! send 23 a memorandum-to all the Commission and'put it in the-24 record of this' proceeding.
.25 COMMISSIONER'CURTISS: I do see here that l NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISt.AND AVENUE, N W. -
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1 in the discussion in the paper that the NUMARC [
2 representatives aver that that's the case. You lay 3 out the six rulemakings in Footnote 26.
4 MR. MIZUNO: The one thing with GESMO is 5 + hat you simp'.y can't infer because the notice of the 6 establishment of the hearing board did not directly 7 indicate what was the authority of the licensing board 8 in that situation. But it did make no reference to 9 actually findings, so the implication being that they 10 weren't required to do so.
11 COMMISSIONER CURTISS: Okay. I thought 12 the paper was extremely well done and, as I say, it 13 provides, I think, a comprehensive basis for 14 addressing those issues. I commend all of you who 15 were involved in it.
16 CHAIRMAN SELIN: Commissioner Remick?
17 COMMISSIONEP, REMICK: Just let me add a la comment. The waste confidence rulemaking, which I 19 would characterize as a limited magistrate, and as 20 being one of those that had to interpret that, there 21 were a number of opportunities that we wished that we 22 had had the presiding officer's views on 23 interpretation of that extensive record.
24 I have just one question, Marty. It has 25 t o do with clarification and it has to do with the NEAL R. GROSS i COURT REPORTERS AND TRANSCRIBERS j 1323 RHODE ISLAND AVENUE, N W. !
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,. "O 1 questioning by the parties submitted to the board and
^
2 then what I see as a concern over cross examination, j 3 Let me just hypothesize a-scenario which I think is 4 possible. A party would have a question. Presumably 1
5 they would submit it to the board in writing. Tae 6 board would go over that question and say, "Yes, 7 that's a legitimate question that ought to be asked."
8 Then I presume the board would either enter this into i
l 9 the record orally or give copies to the parties and 10 ask the reporter to put it in the record. Let say 11 it's a question of the staff and the applicant and the.
12 staff and the applicant when they start answering 13 this, the party who submitted it said, "Oh, that's not t-
~4 2 what I intended," and the board says, "Well, what is l 15 it that you intended?" This is orally now. The 16 parties then define that question. Is that cross 4
17 examination?
f 18 MR. MALSCH: No.
i 19 COMMISSIONER REMICK: In other words, if 20 .a board asked them to tell us what it is --
, 21 MR. MALSCH: -As long as the questions are 22 actually being screened.to go through the presiding 23 board,-it's'not direct cross xamination.
24 COMMISSIONER REMICK:- Okay. So these 25 questions- then could be orally presented if the board NEAL- R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE. N W.
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96 o 1 chose to have it done so that they were better [
2 understood perhaps than one could put in writing?
3 MR. PARLER: That's right. What we want 4 to try to do is to permit what you're postulating in 5 your scenario but to avoid at least what I am familiar 6 with of hundreds of pages of cross examination going 7 and mostly arguments between the attorneys. You don't 8 know anythinJ more after you finish the hundreds of 9 pages than you did at the beginning at 3 east as to 10 what the substantive points are that are trying to be
+
11 made. That's bad. That's not in anybody's interest.
12 COMMISSIONER REMICK: So, it would not 13 preclude some discussion amongst the parties as long 14 as it is board controlled and it's not unlimited?
15 .'G . MALSCH: Right.
16 COMMISSIONER REMICK: Okay.
17 MR. MALSCH: It does impose a burden on 18 the board to be familiar with the issues because they 19 just can't sit back and let tha parties develop the j 20 record. The Paard has got_to make the effort itself.
21 COMMISSIONER REMICK: Right. Right.
22 Okay.
23 MR. MALSCH: But there could be 24 interchange among the parties as to what the area of 25 inquiry really is supposed to be and what was the l l
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l
- 97 1 subject.
2 COMMISSIONER REMICK: Good. Thank you.
3 MR. PARLER: Mr. Chairman, if you all 4 don't have any --
5 CHAIRMAN SELIN: No, we have Commissioner 6 de Planque.
7 COMMISSIONER de PLANQUE: Basically my 8 questions have already been taken care of. I need to 9 ponder some of these issues r. ore, but I would agree 10 with Commissioner Curtiss that between your paper and 11 the NUMARC comments these are very nicely laid out for 12 our consideration. I thank you for that.
13 CHAIRMAN SELIN: I do have just three 14 comments I would like to make at this point. The 15 first is to attach myself to the generally favorable 16 comments about the paper, starting with the Gene al
! 17 Counsel's description of it at the beginning and going l
l 18 through the session. I thought it was really very t 19 good, very well thought out and very thorough.
20 The second is I would like to come back to 21 this who can contribute question.- Remember --
22 actually, I'll make both comments at the same time.
23 This is a rule because it's more general than an i 24 adjudication, not because it's less specific or less l
l 25 important. We are to pass on design questions which l
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98 e 1 normal 3y would be done in adjudication. We should [
2 pass on that once and for all.
3 So, although the fact that it's a rule 4 gives us a great deal of flexibility about it, how to 5 determine how we got to the end point, it's essential 6 that these questions be thoroughly vented and 7 thoroughly open, that everybody who has a reasonable 8 opinion to offer will have a chance to put it forward 9 and that, in fact --
although, as General Counsel 10 said, we have some flexibility in deciding who talks 11 to whom, we need a full record. It drives proprietary 12 information questions, it drives the documentation 13 meanings. There can't be any implication that somehow 14 some people late on a Friday night made the decision 15 and the rest are stuck with it.
16 I would hope that this definition of who 17 can contribute would be rather broadly taken because 18 some indWidual who lives on some bay or some river 19 will find that there are characteristics in his or her i 20 power plant that were determined ten or 15 years ago l
l 21 in a fairly arcane discussion of rules. If we take 22 too tight a definition of who can contribute, we're 23 going to get a whole lot of people who will find that 24 issues that affect them were settled and they were 25 precluded from having a chance to discuss them. So, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE. N W G!O2) 2344433 WASHINGTON. O C. 20005 (2e2) 2344433
3, 99 o
- 1 as we get into this, we have to bear in mind that it's
..a l 2 not just an engineering thesis, but a sum of a lot of
- 3 very specific decisions .affecting very specific 4 participants that were handled on a generic basis.
5 Did you have something that you wanted to 4
6 add to that?
h 7 MR. PARLER: I did have one thought. It's 8 a lesson that perhaps-I learned from sitting here and 1
l 9 maybe should have learned earlier is if the objective f 10 of what we are seeking in particular areas is a good i
11 one and perhaps its goodness is tarnished because it 12 happens to be an adjudicatory-like term or it has been 13 associated in the past with adjudicationa, perhaps in
, 14 the guidance or in the further discussions about the 15 paper we can think about ways to preserve the l 16 objective and not using the term, such as sui sponte i
! 17 and other th'ngs.
f 18 That's the only_ observation that I have.
l 19 CHAIRMAN SELIN:_ Thank you very much.
20 Very interesting _ session.
21 (Whereupon, -at 4:07 p.m., the above-22 entitled matter was' concluded.)
23 l
24
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...;..- - - - - - - , - - ~ ~ - - - - - , ~
e CERTIFICATE OF TRANSCRIBER This'is to certify that the attached events of a meeting of the United States Nuclear Regulatory Commission entitled:' I b TITLE OF MEETING: BRIEFING ON RULEMAKING PROCEDURES FOR DESIGN CERTIFICATION UNDER PART 52.
PLACE-OF MEETING: ROCKVILLE, MARYLAND ,
DATE OF MEETING: NOVEMBER 23, 1992 were transcribed'by me. 1 further certify that said transcription s is accurate and complete, to the best of my ability, and that the transcript is a true awl accurate record of the foregoing events.
hY 1 M
Reporter's name: PETER LYNCH t
f e
4 e
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