ML20204B792
| ML20204B792 | |
| Person / Time | |
|---|---|
| Issue date: | 10/26/1978 |
| From: | Bradford P, Gilinsky V, Hendrie J, Hendrie T NRC COMMISSION (OCM) |
| To: | |
| References | |
| REF-10CFR9.7 NUDOCS 7811020339 | |
| Download: ML20204B792 (11) | |
Text
-....... _
. =
p.
..g l
N~ U C L E A R R E G U t. A T O R Y C O M M I S S I O N-1 IN THE MATTER OF:
AFFIRMATION SESSION Pices - Washington, D.
C.
Date.
Thursday, 26 October 1978 pag, 1 - 11 l
-...cnen.:
- w.: ::
ACI..rDER.M. RI?OR35. 'NC.
e 781102 0339 CW=id R<Fa' '"
4.1.4 Ner-n C:: r:t irreer
. l Wcanirig*:n, 0.C. 20C0 i 787102 0340' NATICNWICE COVERACc O AILY
't
-t v
w-3r
-y tuy w--
y w-grw y
.-ryg w
g y 7
ry,
-avy-+<ww-g a
- -vc-
l
(.
l' DISCLAIMER This is an unofficial transcript of a meeting of the United States Nuclear Regulatory Commission held on Thursday, 26 october 1978 in the Commission's offices at 1717 H Street, N. W., Washington, D. C.
The meeting was open to public attendance and observation.
Th'is transcript has not been reviewed, corrected, or edited, and it may contain inaccuracies.
The transcript is intended solely for general 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 determinations or beliefs.
No pleading or other paper may be filed with the Commission in any proceeding as the result of or addressed to any statement or argument contained herein, except as the Commission may authorize.
+
o e
/
i w-v eyg e-g+
rw p
stw.--
y g-mwr 9
wa g
e t-4 m
-e g?w w-m sme
2 1
CR1016 UNITED STATES OF AMERICA T-1 2
NUCLEAR REGULATORY COMMISSION WHITLOCK barb 3
AFFIRMATION SESSION 4
5 6
7 Room 1130 1717 H Street, N.W.
'8 Washington, D.C 9
Thursday, 26 October 1978 10 The Commission met, pursuant to notice, at 3:45 p.m.
Il BEFORE:
12 DR. JOSEPH HENDRIE, Chairman 13 PETER BRADFORD, Commissioner 14 VICTOR GILINSKY, Commissioner 15 JOHN AHEARNE, Commissioner 16 ALSO PRESENT:
17 S.
Chilk 18 J.
Kelley 19 20 21 22 23 24 f
Ace. Federal Reporters, Inc.
25 l
3 L
CR 1016
)
-WHITLOCK-t-12mtek
' CHAIRMAN HENDRIE:
Let's do the affirmation items.
2 MR. CHILK:
SECY-78-497, which is an amendment to k
3 Part 10, 10 CFR Part 9, waiver or reduction of fees under the i
4 Freedom of Information Act, deals with a revised -- with a 5
FederaleRegister notice which amends our regulations by adding i
l 6
a new section on the waiver or reduction of fees.
i
- 7 We reviewed all of the comments and forwarded to you 8
a package on the 24th of October which included all of your i
9 comments, and all of you agreed to that.
But I must note that i
j 10 in your agreement to.that package you did not approve one 1
11 item which Commissioner Bradford specifically requested in 12 there.
j
)
13 CHAIRMAN HENDRIE:
That dealt with a -- permitting 14 the requester, within 30 days of receipt, to resubmit a request i
15 for waiver or reduction of fees for the receipt of documents 16 and so forth, i
17 I believe Commissioner Bradford may want to address 18 that issue.
)
19 COMMISSIONER BRADFORD:
Well, as I understand it, at 20 the moment there are two of us who agree with it and one or 21 two who don't.
22 MR. CHILK:
The indication that I had was that all 23 four offices did not support that change.
We have had a change?
\\
24 I/am not aware of it.
AOFedCrel Reporters. Inc.
25 COMMISSIONER GILINSKY:
I am inclined to support it.
4 mte 2 1
COHMISSIONER BRADFORD:
The problem is this, is that 2
when people first make their request they lay out a list of 3
considerations based entirely on what they assume are going 4
to be in the documents.
Then the request may be denied.
They 5
may pay the fees and find considerably more substantiation or 6
something entirely different in those documents than what they 7
had thought was there.
And it seemed to me that the final 8
decision on denying a request for a waiver ought to be made 9
on the basis of knowledge of what the documents contained if 10 the person was willing to have paid for them anyway.
Il COMMISSIONER AHEARNE:
The difficulty I have with it 12 is that I think the way it is worded, it is essentially a 13 guarantee that every person, every request that has been denied 14 and paid will then come back and ask for --
15 COMMISSIONER BRADFORD:
It is worded in such a way 16 that they have to show that there is in fact new evidence.
17 COMMISSIONER AHEARNE:
But if it is a sizable amount 18 of material, which I guess it would have to be if there was a 19 sizable fee paid, then at least I would guess that they could 20 make some sort of a case based on screening through all that 21 material, finding some items that they can come back and 22 argue.
23 COMMISSIONER BRADFORD:
There is certainly no way 24 to guarantee that that wouldn't happen.
A&Fedstd Reporters, tric.
25 COMMISSIONER AHEARNE:
Do you believe that, lacking
mte-3 I
1 1
that phrase,.if someone applied, paid, got it, and then it 2
turns'out there is something really obvious that would have led 3
to a waiver, that they wouldn't request reconsideration?
4 COMMISSIONER BRADFORD:
If they requested it without i
5 that provision, as I understand it, they wouldn't get it.
6 There is nothing -- all of the appeals times would have run.
7 The matter will be, in the vernacular, res judicata.
8 COMMISSIONER AHEARNE:
Not collateral estoppel?
9 COMMISSIONER BRADFORD:
Not with the same party 10 COMMISSIONER GILINSKY:
The way to deal with your 11 concern is to make the specific tests.
12 CHAIRMAN HENDRIE:
I am happy to make the review.
i 13 Itnis going to turn up on alu.ost every case, because it is a 14 simple matter to file a request for reconsideration.
It costs 15 a 15-cent stamp, two pieces of paper, an envelope, and then.you 16 make out a couple hundred dollars on the thing, and then we 17 have to review every one.
18 COMMISSIONER BRADFORD:
If you do it that way, all 19 that has to be reviewed, aft'er all, is what is in the request.
20 If the person doesn't cite pages, doesn't cite facts, doesn't 21 cite anything substantial, it is going to take every bit of 22 time to turn it down as to prepare it.
23 CHAIRMAN HENDRIE:
He will cite those things.
Then 24 what?
Now we have got to read the stuf f and see if we agree,
(*w Federal Reporters, Inc,
/
25 if it is substantive and a. legitimate case.
-t e,n.
- - - - - - -, - + - -
p,,w.y,,.y, y.y
-y w
ar--ww g u.ew$
w9--.-.-7-wg--
-M--.<-
mte 4 6
1 COMMISSIONER AHEARNE:
At least in my mind, you have 2
two responsibilities.
On the one hand, you clearly have the 3
responsibility to the public-to enable them to get access to 4
information.
That is Freedom of Information Act.
On.the other 5
hand, I think you have the responsibility to the public to 6
utilize the staff and the funds, et cetera, that you have 7
available.
8 My concern was, this would seem to me to have either 9
one of two effects:
either lead to an extensive expansion of 10 the support staff to. counter the litigation path that this 11 would encourage, or turn the staff sort of into a research 12 service.
If the stream of litigations were large, eventually 13 I think that they would decide that we would waive everything.
14 COMMISSIONER BRADFORD:
The only cases in which 15 this arises. is the one in which the applicant has already paid 16 the fee.
So that, to the extent that there is a flood of a
17
-ostensibly FOIA activity --
18 COMMISSIONER AHEARNE:
I don ' t think it 's frivolous.
19 I think the question is if they paid a substantial fee, and 20 perhaps speaking more from perhaps some prejudice or jaundice 21 that a non-lawyer has toward the legal profession, my skep-22 ticism is that, a sizable fee having been paid, the associated 23 lawyers would just, in doing their responsible duty, try, if-24 there is an explicit request for them to come in again --
- ^*r.cersi n.porteri, inc.
25 COMMISSIONER GILINSKY:
Doesn't that depend on our
~
v-.mt,e 5 i
.)
record in a way?
In other.words, if you ran every one of them 2
'it is the only'one thac is going to be aopealed (inaudible) 3
.MR.
KELLEY:
When you say litigation, John, do you 4
mean agency. papers or do you mean court?
5 COMMISSIONER AHEARNE:
One and two.
6 MR. KELLEY:
I'm not sure about two.
Again, I am 7
not that f amiliar with the amounts, but you can't make money 8
suing for S1,000 these days.
It is not worth it.
9 COMMISSIONER BRADFORD:
That is the point that the 10 lawyers -- the very thing that would put lawyers in disrepute.
Il CHAIRMAN HENDRIE:
As a dete: ant to making a claim 12 for anything less than a very substantial amount, because you 13 have to pay the lawyer for processing the papers.
14 COMMISSIONER AHEARNE:
Unless you happen to have 15 lawyers on a retainer fee.
16 COMMISSIONER BRADFORD:
Or, for that matter, lawyers 17 employed by a public interest law firm.
i 18 CHAIRMAN HENDRIE:
You sort of get your appeal free 19 as you go through, and it is two minutes additional to smack it 20 on at the end of the case and send it out:
I think there is 21 new information in here; it follows on page 267 of this 22
-document, and it goes out.
Now we have got to sit down and 23 deal with it.
24 COMMISSIONER' BRADFORD:
The new information has to f
Ace Feceral Reporters, Inc.
25 relate to conclusions.
Look at the burden the other way.
When
,_---.7-,,
-,eym
-y,~-~,,--v
e
+=**e
T m,te 6 8
1 you ' set out to request a set of documents, you don't have any
~
2 real clear idea of what they're going to be obtaining.
So at 3
that point the argument --
4 COMMISSIONER AHEARNE:
That is not necessarily true.
5 You may request them because -- granted --
6 COMMISSIONER BRADFORD:
There would be a lot of cases 7
in which you don't.
8 COMMISSIONER AHEARNE:
Yes.
1 9
COMMISSIONER BRADFORD:
You *: hen file the request with i
10 the best arguments you caa make against some fairly strict 11 standards that are in here about why what you think is in here 12 would be to the public interest.
That is going to be a pretty 13 nebulous exercise.
It would not be -- pretty high percentage i
14 of those being turned down, and probably justifiably.
15 0n the other hand, once the documents are in your 16 hand it seems to me at that point you are able to make a much 17 better showing, and the Comtaission's final decision will rest 18 on an appreciation of what is actually in the documents.
At lo the time of the first decision, the most that anyone would know 20 would be the off the top of the head recollection of the 21 staff members, who will have been told by the FOIA people as 22 to just what is' involved in this.
The requester will have no 23 idea what those staf f members will have said.
The staff members 24 wpil have some idea.
Ace Federst Reporters, Inc, 25 If you give them a chance to come back, then you l
-- ~
t mtu7 9
1 assure that the final agency decision is based on what is 2
really in the tables.
As it stands now, it is going to be i
3 based, at most, on a few people's vague recollection.
I i
4 COMMISSIONER AHEARNE:
I am looking at it more from i
5 the standpoint of what is the likely result as far as the j
6 larger amount of time that would be spent.
What I conclude is f
7 that the balance of the time that would end up being spent is l
e-12 8
more probably not an efficient use of resources.
1 l
9 CHAIRMAN HENDRIE:
We are not really prepared to l
l 10 discuss this item fully.
We have our views, but if you change 11 your vote agree with Peter's, then let us strike this item and a
12 go on to the other af firmation items, and we will contemplate a
j 13 scheduling this item for a meeting and get appropriate staff j
14 commentary, OGC commentary and whatever.
I would like to get i
15 the affirmation items affirmed.
16 COMMISSIONER BRADFORD:
Let me make a quick suggestion 1
]
17 There was at o.
point a suggestion quoted by the Secretary 18 to the effect that a trial period without this provision in 19 it take place.
That didn't make a lot of sense to me, because 20 I don't think you learn anything about this provision by not 21 trying it.
d 22 I'would be willing to consider a trial provision the.
23 other.way, that is, put it in for a fixed period of. time and j
i 24 spe if the results are.in' fact as basd as you anticipate.
If j a.wsma.i semrieri. irs 25 they were at the end of six months, then take it out again.
L e
s-w
+e
~e---
i mte.8 10 COMMISSIONER AHEARNE:
Would you be prepared to put j
down -- let's try to reach agreement on what the bad results 2
are.
3 COMMISSIONER BRADFORD:
At that point I do agree 4
with the (.a _rman.
5 CHAIRMAN HENDRIE:
I think it needs more time for 6
hashing out than I really want to put in now:
7 MR. CHILK:
I want to thank you for the suggestion, j
g I hadn't realized I made it.
9 The other one is 78-366B, which is the edited policy 10 11 statement, and also a proposed general statement of policy 12 regarding establishment of procedures for licensing of geologic high-l'evel waste repositories to be constructed and operated by 13 DOE.
14 15 We incorporated all of the comments that were made 16 to the Federal Register notice and forwarded a revised paper,to you on October 25th, which contained all of the changes.
Each 37 of y u have approved the recommendations of the staff.
18 CHAIRMAN HENDRIE:
I ask for your affirmative votes.
39 I A11 of fif* * )
20 21 MR. CHILK:
74-85, which is a preliminary statement 22 ori general policy for rulemaking for approved nuclear power-23 plant licensing.
The approvals were made, with a comment by 24 Mr. Bradford for some minor change, a request for a change, n*Facercl Reporters, Inc.
/
25 minor change, by Mr. Kennedy; and the staff more recently came
mbe 9 11 1
up with a series offchanges in an October 24th document, to 2
which I understand four of you have concurred.
Mr. Kennedy 3
originally approved the basic paper and has now asked that he 4
be represented as abstaining, only because he hasn't looked at 5
these changes.
He has no objection.
6 I ask you to af firm your votes.
7 CHAIRMAN HENDRIE:
I ask for your positive votes.
(All affirm.)
8 COMMISSIONER BRADFORD:
There is some prov1.sion that 9
we will get to see the exact language on the type of rulemaking?
10 MR. CHILK:
It seems to me there is.
11 COMMISSIONER BRADFORD:
All right.
12 CHAIRMAN HENDRIE:
I think it's in the paper, iun't 13 it?
14 COMMISSIONER BRADFORD:
There is language in there l
15 now.
Let m,e pursue it further with Sam.
I want to be sure that 16 I see it, the final language on the type of rulemaking, befor'e
]
17 it goes into the document.
-18 CHAIRMAN HENDRIE:
Now, that is the last of them, 19 isn't it?
I am particularly anxious to get out that statement 20 on the waste proposal and the licensing array.
21 Thank you very much.
e-13 22 (Whereupon, at 3:59 p.m.,
the meeting was adjourned.)
23 24 A*FCseral Reporters, Inc.
25
. -, - -..