ML20214W960

Transcript of 870612 Telcon in Washington,Dc.Pp 18,585- 18,596

ML20214W960
Person / Time
Site:	Braidwood
Issue date:	06/12/1987
From:	Atomic Safety and Licensing Board Panel
To:
References
CON-#287-3816 OL, NUDOCS 8706160266
Download: ML20214W960 (14)

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0 UNITED STATES NUCLEAR REGULATORY COMMISSION IN TIIE MATTER OF: DOCKET NO: 50-456-OL 50-457-OL C0!#10NWEALT!! EDISON CO!4PANY (Draidwood Station Units 1 and 2)

TELEPl!ONE CONFERENCE O ,1 * .

LOCATION: WASi!INGTON, D. c. l' AGES: 18585*- 18596 DATE: Friday, Juno 12, 1987 f4 d/

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ACE-FEDERAL REPORTERS, INC.

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icial Rqvitm 0706160P66 07061p 444 rth Capitol Street PDR ADOCK 05000456 Washington, D.C. 20001 T PDR (202)347 3700 NATlONWIDE COVERACE

CR31320.0 18585 REE/dnw I UNITED STATES OF AMERICA O 2 NUCLEAR REGULATORY COMMISSION 3

4 - - - - - - - - - - - - - - - - -x 5 In the Matter of: 8 6 COW 10NWEALTil EDISON COMPANY 8 Docket Nos. 50-456-OL 8

50-457-OL i 7

(Braidwood Station Units 8 I and 2 ) 8 TELEPHONE CONFERENCE 8 - - - - - - - - - - - - - - - - -x 9 Aco-Podoral Roporters, Inc.

444 North Capitol Stroot, N.W.

10 Suito 402 Washington, D. C.

11 Priday, Juno 12, 1987 12 The tolophone conferenco convened at 10:31 a.m.

13 14 BEFORE:

15 JUDGE IVAN W. SMITil, Chairman Atomic Safety and Licensing Doard 16 17 PRESENT:

18 EDWIN J. REIS, ESQ., NRC 19 DOUGLAS CASSEL, Intorvonorn 20 MICHAM. I. MII,f,ER, ESQ., Applicant JOSEPil GALLO, ESQ., Applicant 22 23 O 24 25 Acit.17:intinal. Ritron t ains, INC.

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31320.0 ree 18586 g 1 PROCEEDINGS ,

L) 2 JUDGE SMITH: Good morning, gentlemen. The reason 3 I asked you to join me in this conference call is that on 4 June 10, on behalf of the Board, we issued a memorandum and  ;

5 order denying the Intervenors' motion to admit the late-filed 6 contontions, based upon jurisdiction. Then it was pointed 7 out to mo by Mr. Cassel in a telephone conference call that 0 Commonwoalth Edison had filed an application for an amendment  :

i 9 to the oporating 11censo and had stated that the 10 jurisdictional objection that they had to the motion was no 11 longer valid. The purpose of this call is to consult with 12 the parties to soo, to got their ideas on how it should be 13 handlod.

14 I think wo have savoral options. If the parties 15 think that thu memorandum and order is incorrect, there can 16 be a petition for reconsideration. If you wish, you can ask 17 mo to just reconsidor sua sponto taking into account the fact

. 18 that tho application in filed and then see what offect it 1

19 han.

20 I might say that absent some arguments to the 21 partion, I don't think that tho application an filed changos 22 tho bottom lino or the not result of the momorandum and 23 ordor. The application in moroly tho first stop in the t

O 24 bestaataa or a ae* vrocaeataa, aaa en ra nava to 'a other i

25 utopn beforo a proconding in commonced and the Licensing l

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31320.0 roe 18587 1 Board is established to preside over that proceeding. If the O 2 parties agree and it seems that they do agree that the 3 ownership change anticipated can only be brought about by an 4 amendment to the operating license, I think it necessarily 5 follows that the amendment to an operating license or the 6 application for the amendment must be the subject of a new 7 and separato proceeding, essentially under Section 1889 of 8 the Atomic Enorgy Act, which provides that amendment to an 9 operating licenso proceeding must be subject to a hearing, an '

10 opportunity for hearing for anyone whose interests might be l.

11 affected.

12 So I believe the law and the regulations at the -

() 13 Commission are pretty clear that the issue here must be the t 14 subject of an amendment and an opportunity for hearing under 15 that amondmont.

16 Mr. Cassol, lot me begin with you, havo you had an 17 opportunity to road the memorandum and order yet? [

10 MR. CASSEL: No, Judge. I have not rocalved it.

19 I am hoping that it will arrivo in this morning's mail which i

20 has not yet boon receivod in my offico, but as of close of 21 business yostorday I had not receivod it.

i 22 JUDGE SMITil May I charactorino it for you. l i

23 MR. CAUSEL: Cortninly. [

() 24 JUDGE SMIT!!: I said that the petition, although  ;

25 it in purportodly filod under Section 2.417, tho intorvuntion A G .lIl!!)lil(Al, Ill. Pol (II:ld, INC.

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31320.0 ree 18588 1 and contention, is in fact functionally an effort to 7_

V 2 anticipate the filing of an application for an operating 3 license amendment and to insert the financial qualification 4 issue into any proceedicq stemming from that application.

5 Then I went on to say that I was -- the Board is 6 without jurisdiction to consider the merits of the motion  !

7 becauno the notico of hearing under which the operating 8 licenso proceeding was conducted did not authorize us to 9 presido over any future proceedings.  !

10 I cited a case that I am sure Mr. Reis well t

11 recalls, the Carolina Power & Light company, Shearon Harris 12 case, in which the board that I was chairman of, a O

N- 13 construction permit board, was unhappy at the and of the 14 construction permit proconding with the evidence of the 15 record on management, the management capability of the 16 Shonron liarris managers. So we made as a condition of the 17 construction permit that there would be an issue in the 10 forthcoming oporating licenso application concerning 19 management capability. And both the Appeals Board and the 20 Comminston said, no, your original notice of hearing did not i

21 give you the authority to go into futuro hearings; that would 22 havo to bo tho nubjoet of a diffaront proconding.

23 I think that that caso in the one that mostly

() 24 contro1n as compared to the canos that have boon cited which ,

25 nro puroly subject mattor jurisdiction casos.

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31320.0 ree 18589 1 That is, there is no question that a notice of O 2 hearing is issued and that there is a board existing under 3 that notice of hearing, but that the notice of hearing does 4 not, the scopo of that notice of hearing does not include the 5 subject mattor at issue. Probably the old Marble Hill case 6 is probably tho best example of that, when the Health and 7 Safoty Board went into the antitrust aspects and it wasn't 8 covered by a notice of hearing and that was found not to be 9 within their jurisdiction.

10 In any ovent, I am convinced, absent hearing 11 argumonts, porsunsivo arguments to the contrary, that our 12 memorandum and order, although it did not take into account O 13 tho fact that thoro is an application for the amendment, is 14 corroct as far as jurisdiction is concerned.

15 I think the distinction has to be made --and this 3

16 is whore the failure has boon --a distinction has to be mado l 17 an to tha jurisdiction of the Nuclear Regulatory Commission 18 as ccmparod to tho jurisdiction of this particular Licensing

19 Iloa rd . Tho Nuclear Rogulatory Commission clearly has 20 jurisdiction now over the proposed now ownership arrangement, 21 but I am ntill of tho viow that the Liconoing Board, this .

l 22 Liconning Iloard doon not.

j 23 Lot mo junt comploto it and than I will hear from 1

O 24 rou.  :

25 Doforo thoro could bo authority on the part of a c r

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31320.0 ree 18590

,_s 1 Licensing Board, the Commission Staff is going to have to

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2 make a determination, probably they will make a no 3 significant hazards determination, decide whether the 4 amendmont should be granted before or after hearing. In any 5 ovent, there will probably be a notice of an opportunity for 6 hearing issued. The chairman of the Licensing Board panel in 7 that ovent will designate a so-called Petition Review Board, 8 which is really an Atomic Safety and Licensing Board, to 9 ontortain --to look at any petitions to interveno in that 10 proposed procooding.

11 And if that review board, petitions review board 12 datorminos that thoro should be a hearing, that there is a 13 valid potition with valid contentions, issues, then it would 14 ordor a hearing and as custom has it, reform themselves into 15 a hoaring board.

16 That is the proceduro that has boon followed 17 traditionally at tho NRC and is protty well prescribed by 18 Soction 2.105. And Section 2.717, if you will check it, 19 makes it clonr that the Licensing Doord's jurisdiction does 20 not commonco until tho issuanco of a notico of hoaring.

21 Now, with all of that, I will hear from whoever 22 wants to talk.

23 MR. CASSEL: Not yet having had the bonofit of

() 24 reading your opinion and the casos you citod in thoro, I do 25 approciato your doncribing it to mo orally. I think I am Acti.iiitt>tinAi. l(iiton li Rs, INC.

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31320.0 ree 18591 1 going to need to study the opinion and the citations in there O 2 and ponder my options. It seems to me there are at least 3 three options that I have and I am not expressing any view at 4 the moment on which one should be pursued until I have 5 studied the opinion and the cases cited there.

6 One option, of course, is a petition for 7 reconsideration. I would not make that at this time orally, 8 because I want to review your opinion first. Another option 9 would be on the theory that the jurisdictional defect, if 10 there was one, has now been cured by Edison's filing of the 11 application and then to file a new motion, either before this 12 Board or the Appeal Board, based on this new development.

13 And the third would be the route which you described which 14 sounds to me very much like the route which we are already 15 pursuing in the case of Byron 2, by the letter back in April 16 which I sent to Mr. Murley. Those seem to me to be the three 17 options.

18 Until I have read your opinion and the cases you 19 mention, I would rather not indicate a view as to which one 20 or more of those options is the appropriate option to pursue, 21 but I can assure everybody that I am well along in preparing 22 the documents that will bring it to the attention of the NRC, 23 as well as the witnesses who we will be calling, and the only

() 24 issue is which vehiclo to use to bring it in front of the 25 Commission, which of those three or porhaps there are some Aci!.17itoitaAt. Rt!PonTrias. INC.

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'31320.0 roe 18592 1 other I haven't thought of. I want to give that some O 2 thought. -We will be pursuing one or more of those options-3 within a very few days.

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4 JUDGE SMITH: I might also comment that'you

-5 referred to the Byron 2. Has there been a notice of 6 opportunity for hearing issued in that case?

7 MR. CASSEL: Not that has been sent to me, Judge.

8 MR. MILLER: Judge Smith, this is Mike Miller, one 9 of the attorneys for Commonwealth Edison Company. To our 10 knowledge, there has been no notice of opportunity for 11 hearing with respect to any of the applications for 12 amendment. .

O- 13 JUDGE SMITH: You expect that there will be one?

14 MR. MILLER: Yes.

15 ' JUDGE SMITH: So if my analysis ils correct, 16 Mr. Cassel, events may overtake you, you know, that while you 17 are fussing about this before the Appeal Board, your 18 opportunity will be noticed in the Federal Register and 19 issues of lateness and all of that will be moot. That could 20 happen before you resolve it. But that is just an 21 observation.

22 MR. CASSEL: I appreciate that, Judge. I don't 23 intend to take much time to resolve it one way or the other,

() 24 nor am I likely to pursue only one vehicle, if I am not 25 certain which one is the right one. I will probably pursue Acu FEDERAL ReponTens, INC.

202 347 370) Nationwide Coverage 800 33MM6

31320.0 ree 18593

,_ 1 multiple vehicles and essentially say I don't care which one

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2 you give me; whichever one it is, I would like to have it.

3 But I appreciate the admonition that this is no time to 4 tarry.

5 MR. MILLER: This is Mike Miller again. We do 6 have a copy of your opinion in our offices. I would be happy 7 to make a copy for Mr. Cassel, send it over to him and 8 perhaps we could establish a time schedule for filing any 9 petitions for reconsideration before the Licensing Board.

10 MR. CASSEL: I appreciate the offer to provide me 11 with a copy of the opinion, although you might want to call 12 back in 45 minutes, Mike, and see if it has arrived in this

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\/ 13 morning's mail. In terms of establishing a time table for 14 petition for reconsideration, number one, I am not sure that 15 I am going to file such a petition; number two, isn't there a 16 -- I assume, I was under the impression that there was a time 17 period prescribed in the rules.

18 JUDGE SMITH: There is. I think it is 10 days. I 19 don't know if that is enough for you.

20 MR. CASSEL: I think that will be plenty, Judge.

21 I don't intend to wait 10 days from today. I assume that it 22 begins to run either from the time I receive it -- you said 23 it was dated June 6?

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(_ 24 JUDGE SMITH: Yes. No. June 10. So I think you 25 have 15 days. So you have until the 25th.

ace FEDERAI. REPORTERS, INC.

202 347 3700 Nationwide Coserage MM)-33MM6

31320.0 ree 18594

_ 1 MR.-CASSEL: That is helpful. But if I am going J

2 to file a petition for reconsideration, I have no intention 3 of waiting 15 days. As I say, I have already been working on 4 the preparation of the substance of the matter and haven't i

! 5 yet made a final determination as to which vehicle or 6 vehicles to pursue to bring it to the NRC's attention.

i;V 7 JUDGE SMITH: Okay. I will_want to express our 8 regrets for dropping these things. As you know, Judge i

9 Grossman has just transferred to the Federal Energy 10 Regulatory Commission. I was just put on the case. And the-11 docket operation between the Licensing Board and the Appeal

12 Board is in the process of being consolidated and these O 13 papers just dropped in the cracks. I hope it doesn't happen 14 again, but I recognize that it'has caused extra work on the 15 part of the-parties involved and you have my apologies for

, 16 that.

l 17 MR. CASSEL: Thank you, Judge. They are really

. 18 not necessary, of course.

[ 19 JUDGE SMITH: Okay. Is there any other comment, l

20 Mr. Reis, do you have any points you want to make?

! 21 MR. REIS: No, your Honor. Although I think it

'22 i! might be appropriate, in view of the fact that even if the 23 Intervenors want~to apply for reconsideration or whatever, to

() 24 recognize, perhaps, by adding a footnote to your opinion that i 25 the application has been filed and that it does not change l /\CE FEDERAL REPORTERS, INC.

202-347-3700 Nationwide Coserage 800-336-6646

31320.0

.ree 18595 1 the conclusion.

~.O ' 2 JUDGE SMITH: You mean on our part. I.think that 3 that is what I suggested the possibility of sua sponte taking 4 it up again, but I agree, even if I receive no petition for 5 reconsideration, I will amend that order saying that we have 6 considered it and it doesn't change, if that is the case, 7 unless I am --

8 MR.'REIS: I think that would be best to clarify:

9 the record.

10 MR. GALLO: This is Joe Gallo for Commonwealth 11 Edison. I would suggest that before you take sua sponte 12 action that you wait and see what Mr. Cassel does.

'O 13 JUDGE SMITH: Yes, right. -I will. My plan will 14 be, I'might put a marker on'the' file indicating that 15 jurisdiction will be preserved by the Licensing Board to

16. entertain petitions-for reconsideration and/or a sua sponte 17 modification of the order, whatever is needed, but just to 18 make sure that jurisdiction isn't thought to have expired.

l 19 So my plan now will be to wait until I see pleadings, if any, I-20 on a petition for reconsideration if there are none, I would 21 modify the order. If there are, I will address them.

22 MR. CASSEL: Judge, whatever vehicle I choose to

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i 23 pursue, if it is one that does not involve the petition to O. 24 you, will, unless you direct me otherwise, serve you with a 25 copy of whatever I file otherwise, to simply --so that you ACE-FEDERAL REPORTERS, INC.

202-347-3700 Nationwide Coverage 800-336-6646

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-31320.0 ree 18596 I

1 will'know what the status is.

2 JUDGE SMITH: Until it is resolved, I think it 3 would be better if I did know.

4 -MR. CASSEL: I will do that.

5 JUDGE SMITH: Then we will just-follow the 6 regulatory. time requirements on petition for 7 reconsideration. If there is nothing further, we will 8 adjourn. Anything further?

9 All.right, gentlemen. Thank you.

10 (Whereupon, at 10:45 a.m., the telephone telephone 11 was. concluded.)

12 -

O 13 14 15 16 17 18 19 20 21 22 23 24 25 ACE FEDERAL REPORTERS, INC.

202-347-3700 Nationwide Coverage 800-336-6M6 .

CERTIFICATE OF OFFICIAL REPORTER

()

This is to certify that the attached proceedings before the UNITED STATES NUCLEAR REGULATORY COMMISSION in the matter of:

NAME OF PROCEEDING: COliMONUEALTII EDISON CO!!PA11Y (Braidwood Station Units 1 and 2)

TELEPHONE CONFERENCE DOCKET NO.: 50-456-OL, 50-457-OL PLACE: Washington, D. C.

g DATE: Friday, June 12, 1987 were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission.

(sigt) 8 (TYPED)

REBECCA E. EYSTER Official Reporter ACE-FEDERAL REPORTERS, INC.

Reporter's Affiliation r)

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