ML22230A059

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Tran-M771207: Commission Meeting Open Session Gesmo
ML22230A059
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Issue date: 12/07/1977
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Transcript of Proceedings UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSION MEETING OPEN SESSION GESMO Wednesday, 7 December, 1977 Washington, D.C.

ACE - FEDERAL REPORTERS, INC.

Official Reporters 444 North Capitol Street

- Washington , D.C. 20001 NATIONWIDE COVERAGE* DAILY Telephone :

(202) 347.3700

DISCLAIMER This is an unoffic~al _transcript of a me~!ing_oJ fhe Unite? States Nuclear Regulatory Comm1ss1on held on .* .o;.:;,.,; "? 197 in the Commission s offices at 1717 H Street, N. W., Washington, D. C. The 1

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 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.

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1 CRS793 UNITED STATES OF AMERICA ME.R/mml l 2 NUCLEAR .REGULATORY COMMISSION 3

- 4 5

COMMISSION MEETING

_ 'OPEN::::SESSI-ON 6

7 GESMO 8

1-- 9 Room 1130 10 1717 H Street, NW Washington, D.C.

11 Wednesday, 7 December 1977 12 The meeting in the above--entitled matter was 13 ~-

convened at 2:20 p.m., pursuant to notice, JOSEPH HENDRIE, 14 Chairman, presiding.

15 PRESENT:

16 JOSEPH HENDRIE, CHAIRMAN RICHARD KENNEDY, COMMISSIONER 17 VICTOR GILINSKY, COMMISSIONER PETER BRADFORD, COMMISSIONER 18 H. Shapar 19 L. V. Gossick 20

s. Myers J. Nelson R. Mallory 21 It. Pedersen

-- 22 23 D. Rathbun

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25

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3 PROCEED IN G:S CH~IRMAN HENDRIE: Okay, let us come to order.

The Commission is meeting again this afternoon on 4 the question of what to do with the GESMO proceeding.

5 We have had a number of meetings on this subject.

6 I would hope we are coming somewhere close to a 7 conclusion.

8 Now I seem to have received a late running note from

-- 9 Cliff Smith's office, a 594-A. Shelly, is that your --

10 MR. MYERS: Is that the one with the latest figures?

11 CHAIRMAN HENDRIE: That is the one with the latest 12 figures.

  • 13 14 15 Would you care,,to summarize it for us?

MR. MYERS: As the note says, we received 14 more comments a.fter the meeting we had last week, and the response 16 was pretty much the same. The individuals were almost uniformly encouraging continuation of the GESMO proceedings.

17 Utility groups indicated *that. the .President's 18 policy was well':tounded in.scientific and technical fact, and 19 that if the President's policy was so founded,that the GESMO 20 proceeding would be useful to continue.

21

-- 22 23 That was the Consolidated Edison Company of New York.*

The Consolidated Utility Group --

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25 that.

COMMISSIONER GILINSKY: Wait a minute. Let me get

3 mm If the President's policy is well founded?

2 MR .. MYERS: What I'm saying, if you had a lot of 3 information then his policy should.be grounded in facts, and

- 4 5

he couldlget those facts from the GESMO proceeding.

COMMISSIONER GILINSKY: I see.

6 If it is to be grounded in facts?

7 i MR. MYERS: Right.

I 8 -i The Consolidated Utilities Group suggested that we I

9 ought to I take some. steps to preserve the work that has been i

10 done ini:f/.e past and- they sort of encouraged continuing the I

11 nuclear industry in general with sort of --

1 I

12 I COMMISSIONER KENNEDY: The paper says it should

  • 13 14 15 defer.

MR. MYERS: Let I s see.

COMMISSIONER KENNEDY:

I have here reserve --

Is this the Consolidated Utility Group?

16 I I

MR. MYERS: Yes.

17 Sorry, they recommended the deferral, but they 18 wanted sdmething on the record that could be picked up in 19 I

-1 the futuJ:te rather than::!erminating now.

20 So their idea was to defer rather -than terminate.

21

-- 22 23 The nuclear industry was -- those people~that were involved,! some people felt that we ought to keep the proceeding I

going and finish up the health and safety reports.

24 . I Ace-Fede re I Reporters, Inc. I 1 The states, New York and Wisconsin -- let's see, the 25

4 mm cancelled out of this, New York and Wisconsin.

CHAIRMAN HENDRIE: This was back in the earlier, 2

in the base paper, isn't it? Or is that where you are looking?

3 MR. MYERS: No, I was looking at the newer one.

4 COMMISSIONER KENNEDY: It was my impression they 5

believed we ought to terminate in accordance with the way --

6 CHAIRMAN HENDRIE: I thought I remembered their 7

joint letter that way.

8

.MR. MYERS: That is indeed the* case.

-- 9 The State of Ohio came in and suggested that we 10 continue the GESMO hearings.

11 COMMISSIONER KENNEDY: What was their reason?

12

  • 13 14 15 MR ..MYERS: I don't have a copy of their letter in this package, but I would expect that it would have to do with just having a clean record.

So I would say that the addendum comments were prett 16 much the same as the ones that we went over last time.

17 There_didn't seem to be any new information that came out of 18 the new letters that we have gotten.

19 CHAIRMAN HENDRIE: Okay.

20 COMMISSIONER BRADFORD: Do you want to pick up where 21 we left off?

22 (Laughter.)

23

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25 CHAIRMAN HENDRIE: .Yes.

You know, we had a little addendum to this Staff

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summary of public comments, and I thought that might be a sort of useful preliminary step. I ha'ien~t received a piece of paper.

Let me see if in fact I correctly understand that the General 4 Counsel and Policy* Evaluation Off ices have: .not forwarded further 5 material to go with their previous options paper.

6 MR. PEDERSEN: I would say consistent with some of 7 our earlier meetings, it was a nice idea in theory. We couldn't 8 get four offices to coordinate and agree on it, so I think we 9 are prepared to speak to it, but we didn't submit a formal 10 COMMISSIONER KENNEDY: Four offices?

11 MR. PEDERSEN: Yes, sir. The same four that were 12 involved in the original options paper.

  • 13 14 15 you.

CHAIRMAN HENDRIE: That's right, there were four of I'm sorry, Ho~ard.

MR. SHAPAR: I thought you left out OPE.

16 (Laughter.)

17 MR. PEDERSEN: Easy to overlook, Howard.

18 CHAIRMAN HENDRIE: Okay.

19 The last time we had the options and views from 20 the Amalgamated Offices Group, but I kept admonishing the 21 Commission not to discuss that very extensively. I only wanted 22 to sort of put on -~the table before us, and then we would close 23 this time on the discussion.

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25 So I think with .that sort of preliminary comment, my inclination is to drop the puck in the middle of the table an

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get back off the ice before I get hit by your stick .

Pet~r, go ahead.

(Laughter.)

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COMMISSIONER BRADFORD:

the puck or the stick.

I-'m not sure whether I'm 6 COMMISSIONER GILINSKY: The stick.

7 CHAIRMAN HENDRIE: Clearly the stick.

8 COMMISSIONER BRADFORD: Well, where we left off 9 before the commercial last week --

10 (Laughter.)

11 We were sort of focusing on what the differences 12 really were between deferring and terminating., and then

  • 13 14 15 what that meant in terms of a commitment to restart.

The question that I guess had been on the tip of my tongue then was whether, if in fact -- whether in fact there 16 is any :substantial difference between. terminating and deferring, if one terminates with a sentence that then says 17 that, of course these proceedings may be commenced anew under 18 appropriate circumstances in the future.

19 MR. MALLORY: I think the distinction is the degree 20 of the commitment to reopen the proceedings at some time, or 21

-* 22 23 rather to reexamine the situation.and determine whether they should be reopened, or something else should be done.

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25 If you say terminate, but we are going to make this reexamination and determine whether things should be restarted

7 mm from scratch, that to my way of thinking is no different from 2 saying, well, we will defer and then we will make a reexaminati n.

Then it is just a difference in wording.

3 4 COMMISSIONER BRADFORD: B.ut perhaps a very important 5 one, since the President's letter used the word terminated, 6 and any choice we make involving a word other than .. terminate 7 will be seeming to have a significance:that perhaps it doesn't 8

really have.

9 M.R. MALLORY: Well I would think that if you use the 10 word terminate and structure it in the way we have talked 11 about a deferral option, that there would be no difference than from a deferral option.

12

  • 13 14 15 COM.MISSIONER BRADFORD: With the possible exceptio'n of the status of the existing record, and the Commission would,,.

then have to take an action to make the existing record part of the new record as distinguished.from having a proceeding 16 simply come alive again.

17 MR. MALLORY: I think that would be probably a 18 small matter. compared to other things that would be involved 19 in restarting the proceeding.

20 MR. PEDERSEN: I would add a couple of things to 21

-- 22 23 that.

I agree with what Rich has said. One is, I think

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25 whether you use the word terminate or defer will be read in terms of the amount of weight you are giving to the President's

8 letter. I think if you decide to terminate, it could be read 2 that you gave that extensive, maybe indeterminate weight.

3 I think if you choose to go the deferral route, you 4 will have somewhat more flexibility in citing a number of facto s 5 that led you to this decision -- President's view, INFCE, 6 NASAP, Congressional views, and the like. I think it gives you 7 somewhat more flexibility, and it tends, quite frankly, 8 COMMISSIONER BRADFORD: We can cite all that on the 9 way. The only question is 10 MR. PEDERSEN: I think it's a question here, somewha, 11 of a question of image and the message you want to convey, too, 12 that needs to be considered. In --

  • 13.

14 15 COMMISSIONER BRADFORD:

they're going to believe us.

It's a question of whether MR. PEDERSEN: Also, I don't know how much weight was 16 assigned to it, but I would raise it.

i7 At the outset, when we undertook this endeavor, 18 there were some questions raised in Congress as to whether this 19 was even an appropriate exercise for NRC to be involved in.

20 COMMISSIONER BRADFORD: GESMO?

21 MR. PEDERSEN: GESMO. And looking at this kind of 22 evaluation, if you choose to terminate, you may give some --

.23 and I can'.t put weight on this -- but you may give some impetus 24 to those and say you shouldn't have had that kind of responsi--

Ace-F

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25 btlity tn the first ~lace,

ru.

9 Deferral allows you to give a stronger message that 2 there's no question in your mind about your role in this, it's 3 just a question that the timing is not right, more information

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is coming to you, and so on.

emphasis to place on that.

Again, I don't know how much Howard may have a feeling 6 COMMISSIONER 3RADFORD: Except wasn't GESMO --

7 GESMO essentially discharges what the Commission perceives to 8 be its duties underneath us.

9 MR. PEDERSEN: I would have to -- Dennis, maybe you 10 remember what the precise grounds on that were that were 11 challenged?

12 MR. RATHBUN: I don't think it really was a chal-

  • 13 14 15 lenging per se. Rather, there were some draft bills introduced which would have had Office of Technology Assessment perform an assessment of PU recycle ;and all *of its ramifications.
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16 can't cite the specific i7 COMMISSIONER BRADFORD: The question wasn't whether 18 the assessment had to be made. The only q11etTon was whether we should do it.

19 -- -- --*---- .. - ---- -- - --

MR. PEDERSEN: We would elect --

  • 20 MR. RATHBUN: Or they would do it in parallel or 21 they would do it in lieu of.

22 MR. PEDERSEN: But again, I do think the image you 23 want to convey can't be overlooked, how much weight you want

  • 24 to.~be appear to be assigning these various factors. I do Ace-F Reporters, Inc.

25 think the choice between termination and deferral does enter

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10 RMG 3 in there.

2 MR. MALLORY: The Hearing Board in its comment made 3 the argument, too, that if you defer, there's no final decision 4 on the Commission's part on what to do about plutonium re-5 cycling. No impact statement is required.

6 Where some people have argued -- to terminate, there 7 is more strength to the argument that termination is the decisi n 8 on the proposal to recylce plutonium and requires an impact 9 statement.

10 COMMISSIONER GILINSKY: Wait a minute. You said 11 there's no practical difference between the two.

12 MR. MALLORY: All right. I am using, in terms of

  • 13 14 15 how we structured our options the file indicating a commit-ment to come back and reexamine at least, in light of future event;. termination,- -indicating no such commitment.

16 And I think maybe that's the best way to use the i7 words, at least for discussion. If you want to write the paper 18 saying termination, let's use the deferral sort of a struc-19 ture as we have the word deferral. We don't have any trouble 20 with that.

21 COMMISSIONER BRADFORD: There are a whole range of 22 terminations. The one you describe is more or less what that 23 would be saying, we'd be terminating plutonium recycling.

. 24 Simply say terminating the environmental assessment -- we

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25 don't really have the power to terminate plutonium recycle

11 for the United States for all time.

2 MR. MALLORY: As long as those facilities -- not for 3 all time, certainly. But as long as those facilities require 4 a license, and we're not considering giving them one, it's out 5 of the picture.

6 COMMISSIONER BRADFORD: Yes.

7 MR. PEDERSEN: You can't talk about provisional 8 termination. There's all kind of ranges.

9 COMMISSIONER BRADFORD: There is an argument, then, 10* to the effect that termination of an environmental impact 11 analysis requires an environmental impact ~nalysis.

12 MR. MALLORY: That once a proposal is before the Hou e

  • 13 14 15 and it might reduce environmental impacts from mining and ~l!in~~-them

=====:.:::=========-..:---'----- - ~----- --

an impact statement is required before you abandon that proposal~

~---------------------------------------

COM._MISS IONER BRADFORD:

Which might look. a lot more 16 like an environmental impact statement that you're in the i7 process of abandoning.

18 MR. MALLORY: And that means their argument is 19 therefore the proceediDgs have to continue. We don't think 20 that that would hold up, but there is more risk of a problem 21 of litigation.

22 CHAIRMAN HENDRIE: I'm sorry, I was reading some-23 thing, and I missed the front end of that.

24 MR. M_~LLORY: An argument has been made by some of Ace-F

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25 the commenters that the plutonium recycle, the Commission had

12 to give an impact statement in order to terminate consideration 2 of plutonium recycle.

3 Our position has been if there were a deferral, the 4 Commission is making no final decision, it clearly needs no 5 impact statement.

6 COMMISSIONER GILINSKY: Wait a minute. Wouldn't 7 that argument -- if it takes an impact statement to end an :.

8 impact statement, it would also take an impact statement to 9 start an impact statement.

10 (Laughter.)

11 CHAIRMAN HENDRIE: Well, summetry would require 12 that .

  • 13 14 15 MR . MALLO RY : e'l'he argument goes that if you terminaJ it would require an impact statement because you're making a decision on the proposal. Our argument has been that if-that 16 were the case, then impact statements would swamp the federal i7 government, because the government decides not to do things 18 all the time much more frequently than i t decides to proceed 19 some course of action. And we don't think that's a likely 20 interpreta tio.n.

21 MR. SHAPAR: I think the legal consensus is you 22 don't need an impact statement to either terminate or defer.

23 My own personal view is the legal considerations IA~-F* R*oo=cs, ~,!

25 revolving around the distinction between a deferral and a ter-mination should-not weigh heavily in whichever way you decide

13 on policy matters. They are not overly significant. That's 2 my own personal view.

3 CHAIRMAN HENDRIE: That's easy for you to say.

4 ( LAughter.)

5 CHAIRMAN HENDRIE: . He has to try the case.

6 MR. SHAPAR: And he's a good lawyer. I expect him 7 to win.

8 CHAIRMAN HENDRIE: He has every confidence in him.

9 COMMISSIONER KENNEDY: With full strength of your 10 opinion behind him.

11 COMMISSIONER GILINSKY: We're asking questions?

12 CHAIRMAN HENDRIE: Anything you'd like -- *offering,

  • 13 14 15 asking questions, offering comments, stating positions?

MR. PEDERSEN: I would just note that when the meeting ended last time, we were talking about deferral. One 16 of the questions that was troubling the Commission -- and we i7 were sort of cut off in mid-debate -- was if you go with de-18 ferral, what kind of eve.nts or what situations might retrigger 19 a reappraisal.

20 Would you want to put it as a fixed time frame?

21 Would you want to 1 hang it to a reassessment of administration 22 policy, the end of INFCE? You may want to save that as a 1 23 second-order question after you decide which way you want to 1

  • 24 go. But that was the thrust of the debate. We were cut off, Ace-F Reporters, Inc.

25 I think.

14 MR. SHAPAR: You might find i t useful to have the

~ 2 options in front of you before you make that sort of dedision.

3 COMMISSIONER BRADFORD: Our discussion at the time 4 that i t came to an end kind of ended,is it's this or this 5 as though they were all choices.

6 In 'fact, you could probably structure a restarting 7 that depended on several variables, the end of which might 8 address, I think, a concern that Howard has, which was that 9* there should be some fixed point in time on -- that is, that 10 you can say the end of INFCE or further communications from 11 the President or not later than January 1, 1982.

12 MR. SHAPAR: .Or you could say pending further order

  • 13 14 15 of the Commission. However, the Commission would intend to take a look at it as of, for example, completion of the studies or any event you want to pick up.

16 COMMISSIONER GILINSKY: It seems* to me that in eithe, i7 case you're talking about putting 18 19, 20 21 22 23 24 Ace-F

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25

15 MR. SHAPAR: Yes.

2 COMMISSIONER GILINSKY: For a couple of years, 3 anyway.

4 MR. SHAPAR: I think the .first event would be the 5 completion of the studies. I think the policy option after 6 that, is if we want to go further off into time.

7 COMMISSIONER GILINSKY: Right. Which is roughly abou 8 two years.

9 MR.SHAPAR: Right.

10 COMMISSIONER GILINSKY: And in any case it seems 11 to me the proceeding,whenever you start up again, is going to 12 have a new scope or different scope than the present proceeding

  • 13 14 15 You would probably be dealing with a lot of new information, you would probably have new participants, and you probably are going to have a new board.

So i t seems to me that there is very little 16 practical difference between sort of deferring and picking 17 up again,but reconsidering the scope and the information and 18 so on, our *terminating with sore commitment to take a look 19 at i t again ... I guess I'm persuaded by the idea of using 20 the word terminate simply because as Peter said,that is the 21

-- 22 23 language used in the President's letter.

It is also a cleaner decision, I think. It gives

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25 us a little bit more freedom to -- our successors, anyway --

to structure the next proceeding appropriately without being

16 rrim2 tied to what is going on now .

2 MR .. SHAPAR: Would you say anything beyond that 3 in connection with intending to decide whether or not to 4 ins ti tu te a new proceeding as of a g*i ven point in time, or 5 would you drop it there with termination?

6 COMMISSIONER GILINSKY: I would certainly say 7 when we would look at i t ag~in; when we take up the question as 8 to whether to have a proceeding or what kind of a proceeding, 9 as of some date, say a couple of years from now on the 10 completion of these-studies, or say no later than a set date.

11 COMMISSIONER KENNEDY: It seems to me that that 12 is the effect *of the probe.

  • 13 14 15 COMMISSIONER GILINSKY: That's right.

Well we sort of agreed that the practical difference aren't that great. And:.ihe question is, do you want to go to 16 the President's language or do you want to use a somewhat softer term. And I'm inclined to go.with the President's langua e.

17 COMMISSIONER KENNEDY: I am sort of inclined to go 18 with language which means what we mean.

19 COMMISSIONER GILINSKY: Well, I think i t says what 20 I mean.

21

-- 22 23 deferral.

COMMISSIONER KENNEDY: Well, we just said it meant

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25 COMMISSIONER GILINSKY: Well we didn't say that.

COMMISSIONER BRADFORD: We said deferral can be

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  • 2 termination or termination can me.an deferral.

COMMISSIONER KENNEDY: Well, I didn't.

3 MR. SHAPAR: Well, the language that goes with it 4 can create the sense of the same effect. I think that's a 5 significant point.

6 MR. MALLORY: We have used deferral --

7 MR. SHAPAR: If you just use one word, there is 8 going to be some explanation.

-- 9 I'm merely suggesting that the explanation can 10 create an effect which is almost identical no matter what the 11 main term is, termination or deferral.

12 MR. PEDERSEN: If you say terminate~. and as

  • 13 14 15 Commissioner Gilinsky said, add a statement that says we definitely will pick it up at another date, I see the effect as being virtually identical.

16 COMMISSIONER KENNEDY: What about all the procedures 17 that now exist?

18 What is the effect of the termination on the 19 existing procedures that are in the -- (Inaudible.)

20 MR.SHAPAR: Well, if the Commission instituted a 21 new proceeding, it could simply adopt: in the new proceeding,

-- 22 23 the same ground .. rules as before.

Another ground rule it could establish is that

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25 the old record would be brought into the new proceeding and supplemented as needed. Or, you could say start from scratch L_

18 mm4 if you wanted to .

2 You would have that option.

3 I would think you would probably -- unless events 4 are drastically different than I foresee, I suppose you would 5 want to get some mileage out of the old record.

6 COMMISSIONER KENNEDY: Can any of the participants 7 who wrote the paper recommending deferral support the 8 recommendation?

-* 9 I would like to hear them argue the case.

10 MR. PEDERSEN: I will tell you what was in my mind.

11 I will be happy to.

12 I think the choice between termination and deferral

  • 13 14 15 is a fairly close one. In my own mind, what weighed heavily with me was the fact that I do believe that the Commission wanted to and should want to reexamine those at some point in 16 time. I think the reason here you are stopping doing it now 17 is not because you sort of came to a logical end point, but 18 because events changed, and things changed. And because of 19 that I assumed that you would probably want to reexamine this, 20 or at least not let go of it completely until you saw if the situation was going to straighten itself out given the 21

-- 22 23 President's commitment to reassess, given INFCE.

It would be different if you had arrived at your

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25 own decision that you had reached a logical end point. But I don't think anybody had arrived at that. Therefore, I thought

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deferral set the kind of message that was desirable here .

Mor.eover, I will say that this did weigh in my own thinking. I think the image of terminating, unless written 4 very artfully, could give the impression that you gave undue 5 weight to the President's letter. That these other factors 6 counted for nothing, really, all of the other views and so on.

7 I thought deferral was not inconsistent with the 8 President's wishes, but at the same time was more consistent 9 with the interests of the Commission and with the situation as 10 I found it.

11 And those were the considerations that weighed 12 heavily in my view in supporting the deferral option.

  • 13 14 15 COMMISSIONER KENNEDY: The paper indicated in the statement, deferral is also more consistent with~--

active participation in the alternative fuel cycle studies.

16 Could you explain.:that a little bit?

17 MR. PEDERSEN: I think,I'm not sure I could support 18 that. I don't want to be tied to every single word in the 19 paper.

20 I think we are committed as NRC, ,we are committed 21 as NRC clearly, Commissioner, to participate actively in

-- 22 23 INFCE in any case. I think here the deferral would simply give us an additional impetus or an additional basis for doing

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25 so because I think part of any deferral message would say, we will be -- we are awaiting this study, and by the way we are

20 rnm6 actively participating in i t .

2 I am not sure it would change our participation in 3 it.

4 COMMISSIONER KENNEDY: Jerry, did you have a view?

5 MR *. NELSON; I was all . for deferral and still am 6 for all of the reasons that Ken said, plus the simple lawyer's 7 reason of a simple lawyer, that there is some analogy in the 8

case law for licensing freezes pending reexamination of 9 things.

10 That is different to me than termination. To me 11 that is a word.that seems to say that .. it is all over with,

_go home everybody.

12

  • 13 14 15 COMMISSIONER KENNEDY: No matter how it is written, termination does seem to imply something for the substance of the matter,.does it not?

MR. NELSON:. For now.

16 COMMISSIONER KENNEDY: No matter how our feelings ar .

17 MR. NELSON: For this day, yes, sir. It looks like 18 the agency says the case is ova:-.

19 COMMISSIONER KENNEDY: No matter how we say it.

20 MR. NELSON: I may say as to the point about the 21 Eizenstadt letter that Ken correctly points out, that the more 22 you use that terminology, the more*you invite challenge on the 23

_grounds that the Eizenstadt letter doesn't fully support 24 Ace-Federal Reporters, Inc.

termination itself; that its reasoning is inadequate; that they 25

21 mm 7 are simply conclusory assertions, the argument that Westinghous 2 makes in its papers in this case. The more that we rest on 3

truly other factors and say we are doing that, and the more 4 we make a public pronouncement to reexamine this thing at some future date, the better it seems to me our posture is.

5 MR. PEDERSEN: I might say, Commissioner, I think 6

we can write it in such a way that no matter -- you say no matt 7

how::we say it,,.. termination implies things. I can see us saying 8

we are going to terminate, but -- and then adding so many 9

conditions that it makes* a jokt* out of the decision.

10 COMMISSIONER GILINSKY: That is not what I implied.

11 COMMISSIONER KENNEDY: That is not what anybody had 12 13 14 15 in mind .

MR. PEDERSEN:

we can write it. Sure,.

As.you indicated, there is no way we can say we are going to terminate, we are going to take it up under any of the following 50 16 conditions.

17 COMMISSIONER KENNEDY: The word termination, what 18 I am trying to say, it seems to me the word termination would 19 be taken by some to imply a conclusion as to the* substance of 20 the matter; a conclusion which we have never yet come to,nor 21 indeed are yet in a position to come to on the basis of the 22 record.

23

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25 MR. PEDERSEN: Tpq.;t~_ as I indicated earlier, was one of the factors weighing my decision to support deferral.

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  • 2 3

I think it implies that we reached a decision to terminationr rather than the environment changed on us.

COMMISSIONER GILINSKY: Well you would be saying 4 that the proceedings, if you took them up again would very 5 likely look different from before.

6 COMMISSIONER KENNEDY: Thatr of courser is Jerry's 7 argument on deferral, because i t is precisely that sort of 8 history that he .is citing. ThatJmplies a circumstance in which 9 license matters are put in_a freeze temporarily while policy 10 is reviewed.

11 Then one goes back to where he was, moves forward 12 with a new set of rules, essentially.

  • 13 14 15 sir.

MR. NELSON: That is what those cases deal with, yes, COMMISSIONER KENNEDY: That's right.

16 MR. NELSON: Just as a litigatorr I am from that 17 standpoint, more familiar with those cases and more at home 18 with them than I am with the magic word terminate which 19 appears in the Eizenstadt~letter.

20 On the other hand, if the suggestion is that we say 21 we terminate, but we then make a public commitment to

-- 22 23 reexamine at point A, point B, point C,then why aren't we saying deferred, because that is what we are really doing.

  • 24 Ace-Federol Reporters, Inc.

25 Then we are just using the word terminate because the Eizenstadt letter uses it.

23 mm COMMISSIONER GILINSKY: I think if we did start up 2 it would be a different kind of a proceeding.

3 MR. NELSON: It would under either view, Commissioner.

4 There would be a whole new dimension. to the proceeding at any 5

point down the line.

6 COMMISSIONER BRADFORD: But the fact that it is sort 7

of a different kind of a proceeding is of some importance.

COMMISSIONER._KENNEDY: A different kind?

8 How different in kind is it?

9 COMMISSIONER BRADFORD: Obviously that would depend 10 on a lot of factors that we don't now know.

11 A substance of a different proceeding in terms of 12

  • 13 14 15 different options. I just don't know what the situation will look like.

If you assume it is going to be exactly-the same proceeding, you are just going to wake i t up again, then 16 deferral is the more descriptive word. I mean, Sleeping Beauty 17 was deferred, she wasn't terminated.

18

(.Laughter.)

19 MR. PEDERSEN: Sleeping Beauty was suspended.

20 MR. SHAPAR: Could I suggest one other point that 21 hasn't been .mentioned, and that is the dee;ision by the 22 President at least after the studies,are complete, it could 23

  • 24 Ace-Federal Reporters, Inc.

25 be one of two things: It could be no plutonium recycle after the study,period, as far as the Administration was

24 mm concerned .

2 If that were the case, I would assume that-there 3 wouldn't be any institution of a new proceeding at all, had 4 you terminated.

5 And had you deferred, the decision at that point wou d 6 be that the deferral would now .become a termination.

7 On the other hand, if the decision after the 8

completion of the .study was, well, I guess under certain 9

circumstances plutonium recycle can continue, then I would assu e 10 at that time the Co!JlITlission, if it had terminated, would want 11 to~reinstitute the proceeding, or if it had deferred would want to continue it.

12

  • 13 14 15 I don't know that that sheds much light on the matte, but I don't think that point had even been mentioned.

CHAIRMAN HENDRIE: There has been a good deal of discussion in the last 35 minutes, and it all seems to go back 16 and forth between deferral and termination. That is something 17 less than the full range of options available to the Commission.

18 I might comment on some of the other options for 19 myself, I guess-.

20 I do think that the pause.:in the GESMO proceeding 21 in any event would have to continue for a couple of years.

22 There are, indeed, . simply too many new possibilities arising for the stu y

  • ----1 Ace-Federal Reporters, Inc.

25 to come to~ valid conclusion which would stand any sort of test,* if we were to go forward now and complete on the

25 mm basis of the present outlook .

2 So I agree, indeed, that i t must at least remain 3 in recess.

- 4 5

Going with that, I find i t difficult then to contemplate the individual license actions at issue here by 6 implication. To see_ them going forward -- these facilities 7 are of sufficient size against the industry,. so that each one 8 of them is :rretty well a major action in itsel:(.

9 I am a.fraid to_ go with any of those you need the 10 accompanying generic .coverage.

11 So I think i t tends to be the GESMO decision carries 12 the individual applications with it.

  • 13 14 15 For myself, I prefer the word deferral. It has

,z-.-

what I think is appropriate as the implication clearly built into the word, that there will be a further looking at the 16 proposition at an appropriate time.

And I suspect that if we were to reconstitute in 17 due time a proceeding to look at the merits and demerits of 18 mixed oxide recycle and so on, I have a strong suspicion that 19 the formal arrangement of the proceeding would be in fact what 20 we have now going in the GESMO case.

21

-- 22 23 It seems to me that there was a good deal of thought that went into forming that set of procedures, and i t provides

  • 24 Ace-Federal Reporters, Inc.

25 an operating framework. People know what the appropriate procedures are in the affair. So I kind of doubt, myself, on

26 whatever basis we might continue this recess of the GESMO 2

proceeding, I don't see if one wanted to restart it that you 3 would necessarily want to consider from scratch the possible 4

formal structure of the proceedings. It seems to me the one 5 at hand has been thought out rather carefully and would probably 6 be a pretty good one.

7 So I would look to a deferral order from lt.he 8 Commission wi.. th language which would key the reconsideration 9 at the Commission's discretion, but suggesting -- not committing, 10 but suggesting that *an appropriate time for that would be 11 after the completion of at least.the present two-year"."""."" expecte 12 two-year cycle international fuel cycle evaluation that's been

  • 13 14 15 put in motion. So that is where I would come.

Now, let's see, you would terminate with lang~age saying, we ought to look at this again at some appropriate 16 time?

17 COMMISSIONER GILINSKY: Yes.

18 Not necessarily look at the question of mixed oxide, 19 but a little broader question. It might be a different 20 question.

21 But that, and related questions.

- 22 23 COMMISSIONER BRADFORD: I would also terminate with a statement to the effect that of course as circumstances

  • 24 Ace-Federal Reporters, Inc.

25 change, it is possible to commence a proceeding anew.

I guess my feeling on it is that it is a fairly

27 mm

  • i- - close question as to whether deferral or termination is a 2 more accurate description of the factual situation. But it 3 seems to me that if the President advises us that -- in a 4 particular area, that a conceptual-:- particular step on our 5 part is important to the conceptual underpinning of his 6 foreign policy, that I have to have a pretty strong reason 7 then to back away from that.

8 That this isn't a simple -- it isn't a statutory

9. noninirnicality finding. It is a statement that this is 10 part of his overall_ policy, and I just think that any word ll that we use less strong than the word that he uses, has the 12 potential of being read in other countries as pulling the
  • 13 14 15 plug of his policy on him.

into.

That is just not a posture I think we ought to get CHAIRMAN HENDRIE: I don't find the same difficulty.

16 Mr. Eizenstadt's letter, after all -- neither 17 Mr. Eizenstadt's letter nor the President's policy imply in 18 any sense that a decision has been made that plutonium 19 recycle will never occur, that the policy is very explicit, 20 that is, everybody please hold while we consider some of 21 the aspects.

22 That is, the President's policy is, in fact, 23

  • 24 ce-Federal Reporters, In.:.

25 deferral and not termination, okay?

COMMISSIONER BRADFORD: I wish he had said that.

28 mm CHAIRHAN HENDRIE: The fact that Mr. Eizenstadt uses 2 a particular wprd I don't find convincing one way or another.

3 COMMISSIONER GILINSKY: Well the President said for 4 the indefinite future.

5

  • COMMISSIONER KENNEDY: Indefinite future can be 6 any time from zero to infinity.

7 CHAIRMAN HENDRIE: Yes, but*that is still rather a 8 clear distinction between that and saying, no, that's the end 9 of it.

10 Let me complete the poll.

11 COMMISSIONER KENNEDY: You and the counsel have 12 eminently well stated my view clearly, precisely, and with the

  • 13 14 15 footnote that you have .just added as iDthe President's policy.

Moreover, I think that Mr. Bradford has added one more of the elements of weight that I would place behind it in 16 support of my view, to say what it is we really mean. We ought 17 to use the word which conveys what it is we really mean rather 18 than use one word because we think it is nice to use it, 19 but then write several pages iDdescribe something else because 20 it isn't quite what we meant.

21 I think we ought to say what we mean and then 22 describe why we mean that is a deferral, taking fully into 23

  • 24 Ace-Federal Reporters, Inc.

25 account, indeed, the President's concerns, and it is precisely for that...reason that we are deferring it.

29 mml5 COMMISSIONER BRADFORD: .Now what do we do?

2 COMMISSIONER GILINSKY: You are not terminating, or 3 you would not be terminating the use of plutonium. You would 4 be terminating a proceeding, which is a different matter, 5 because the nature of the --

6 CHAIRMAN HENDRIE: True. But you have to connect it 7 for me.

8 COMMISSIONER GILINSKY: You can't, as a matter of 9 fact, terminate the use of plutonium for all time. That is 10 something you can't.do.

ll So, in effect anything you are doing is just a 12 deferring.

  • 13 14 15 But a proceeding is a different matter, and if you think that what you are doing is jus*~ putting a proceeding in limbo, take it up again another day, then it is deferring it. If you think that what you will be dealing with is a kind 16 of a different animal, then it makes sense to terminate one and 17 start up another.

18 So I think it .is perfectly consistent.

19 CHAIRMAN HENDR!E: You mean with the President's 20 view or with the current Administration policy?

21 COMMISSIONER GILINSKY: Well, with the logic 22 which you questioned here.

23

  • 24 Ace-Federal Reporters, Inc.

25 CHAIRMAN HENDRIE: Well, let us consider a little bit -- come away from the even split, and com~ away toward the

30 mm footnote language or the added comments.

  • 2 3

And I wonder to what extent each of us has said in slightly different ways, well, whatever the top line is the

- 4 5

rest of the page ought to take note that it would be the Commission's intent to reexamine the question.

COMMISSIONER(GILINSKY: I would say reexamine that 6

and ~related questions that come out of the various ongoing 7

studies.dealing with alternative uses of nuclear fuel. Things 8

may just look different two years from now. They certainly 9

- look different now than they looked two years ago.

10 CHAIRMAN HENDRIE: Well, I don't see any harm in 11 saying it. In part it says we will exercise the prerogatives 12

  • 13 14 15 that we have .

COMMISSIONER GILINSKY: Yes.

CHAIRMAN HENDRIE: And I would like to see, not a commitment to a particular time, but a note that at this point 16 it looks reasonable that a time for that reconsideration would 17 be about two years, about the end of the present -- what is 18 now scheduled to be the fuel cycle evaluation run.

19 And I suspect maybe -- I kind of doub"t that things 20 will focus much before :then :in.any event. And it seems to me 21 that trying to specify anything that stretches out a great 22 deal longer than that is limited -- (Inaudible.)

23

  • 24 Ace-Federal Reporters, Inc.

25 Now, how close does that come to would find acceptable?

language that you

31

\

rnml 7 COMMISSIONER KENNEDY: I was going to suggest that 2 a great deal of this language ought to be the same, no matter 3 how the decision is made.

4 CHAIRMAN HENDRIE: Yes, r- think so.

5 COMMISSIONER KENNEDY: It s~ems to me it would be 6 useful to write all that language and* then see how it would fit 7 into alternative opinions; the one which our colleagues suggest 8 and the one which you and I think:.*.:..

9 CHAIRMAN. HENDRIE: That is a suggestion.

10 Peter, you had in the last thing you said, there 11 was a somewhat different flavor that I caught, to the sort of 12 language.that you would see with regard to the future .

  • 13 14 15 COMMISSIONR BRADFORD: Well, to this extent:

That if you use the word terminate, then you may use the same triggering events that the subsequent language simply becomes 16 one of commencing a new proceeding rather than restarting.

17 You can't use terminate and restart in the same paragraph.

18 That wouldn't make sense.

19 I think that may be the only difference.

20 CHAIRMAN HENDRIE: Okay.

21 COMMISSIONER BRADFORD: But the triggering events 22 wuld probably be fairly similar.

23 CHAIRMAN HENDRIE: I recommend we try to draft some of this language.

  • 24 Ace-Feoerol Reporters, Inc:.

25 COMMISSIONER GILINSKY: On an earlier occasion

32 mm Commissioner Kennedy said he would change his vote to 2 (Inaudible.) -- I don't mean earlier in this matter, in anothe 3 matter.

4 COMMISS-IONER KENNEDY: When was that?

5 COMMISSIONER GILINSKY: Oh, I think the secretary 6 could find the occasion.

7 COMMISSIONER BRADFORD: It was a time that I changed 8 mip.e first.

9 COMMISSIONER GILINSKY: You said that you would have, 1o not that you would. -

11 COMMISSIONER KENNEDY: I said I would have, but I 12 felt the matter was essentially inconsequential?

13 I don't find a parallel.

14 MR. NELSON: We should keep in mind a commitment ,

15 that we made to the Supreme Court that we would be able to 16 reach a decision by .. December of 19 77, and the extension of time for parties to file runs out on December 23rd.

17 Now that does not preclude seeking a further 18 extension, should there be valid reasons to_do so, for 19 getting it granted.

20 COMMISSIONER BRADFORD: Well I think, it in fact --

21

-- 22 23 (Inaudible.) -- which of those words --

MR. NELSON: No, it doesn't. And from what we have

  • 24 Ace-Federal Reporters, Inc.

25 heard today, we have the authorization to go forward.

seems to be that we are down towards either deferring or It

33 mml9 terminating the proceeding. And for Supreme Court purposes, 2 purposes of th.e instant case, it may not make all that much 3 difference what word is used.

- 4 5

But I merely remind the Commission that we have an obligation that'we have got to do somethins about.

6 COMMISSIONER KENNEDY: But i t would be a bit off 7 to have used one word before the Court, and another word in 8 ou~ opinion. Most people would think it. I would be among 9 them.

10 MR. NELSON: We would have to point out to the Court 11 that there was division of opinion at the Agency between 12 terminate and defer, but in either view our suggestion is

  • 13 14 15 the case not go forward in that .posture.

The Court is interested in whether there is something that they have to decide right now.

16 Now here is *=-a-= correct use of the word deferral~~= We believe further proceedings in this court should be deferred 17 until the NRC has completed its reassessment. That is what 18 we were going to do.

19 Don't decide it until we 20 COMMISSIONER KENNEDY: It sounds very much --

21

-- 22 23 COMMISSIONER BRADFORD: But you are now going to ask the Court to terminate its proceedings, while we defer

  • 24 Ace-Federal Reporters, Inc.

25 (Laughter.)

COMMISSIONER KENNEDY: It sounds very much like

34 20 mm what we are discus-sing vis a vis the GESMO proceedings. Further

  • 2 3

proceedings of the GESMO matter are. deferred until such time as the current ongoing reassessments have been completed, and the results thereof can be considered in those proceedings.

4 COMMISSIONER BRADFORD: As I understand it, _you 5

would use the word defer 6

(Laughter.)

7 intend to use i t in a way that in fact i t is as responsive 8

to the President's wishes as we would use the word terminate.

9 COMMISSIONER KENNEDY: We are going to do nothing 10 in respect to the GESMO matter until such time as the ongoing 11 reassessments are completed and can be, in fact, factored into, 12

  • 13 14 15 the results thereof, can *be factored into the proceeding .

COMMISSIONER BRADFORD*:

must be possible to write ~_letter.

All I am thinking of, i t If we are starting with that premise, whether th~ word is defer or terminate, the 16 essential status is in line with the Eizenstadt letter. It 17 has *got to be possible to do a little work and come up with a*

18 document that says that.

19 MR. NELSON: Unless the word terminate'is essential 20 to the document. That is the scenic route.

21 COMMISSIONER BRADFORD: That is why we have to work 22 around it.

23 MR. NELSON: The next sentence, Commissioner, after

  • 24 Ace-Federal Reporters, Inc. the termination sentence of the~Eizenstadt letter, is a 25

35 mm 1 sentence in parenthesis which reads:

2 "Continuation of these activities could lead 3 other natio~s to question the United States'

- 4 5

commitment to deter commercial reprocessing in plutonium recycle."

6 One could conclude that, or draw the inference 7 that the word termination was being used as distinguished fro~

8 continuing.

9 See the parenthesis?

10 COMMISSIONER BRADFORD: Which paragraph?

11 MR. NELSON: Four paragraphs from the bottom, where 12 there is a list of the specific things the President believes

  • 13 14 15 would be helpful.

references.

COMMISSIONER BRADFORD: Okay. We have two different 16 MR. NELSON: I'm sorry. I'm looking at the one that 17 was in the Federal Register.

18 COMMISSIONER BRADFORD: Okay.

19 MR.SHAPAR: Maybe we could work with words. You 20 might start out with either .'.provisionally terminate or firmly 21 postpone.

-- 22 23 (Laughter.)

MR. GOSSICK: What about suspend indefinitely.

  • 24 Ace-Federal Reporters, Inc.

25 (Laughter. )

COMMISSIONER BRADFORD: The only other thought that

36 mm impelled me toward -- I guess it is not another thought, but 2 part of the same one -- is that the language a couple of 3 paragraphs above that, is the other place terminate appears.

4 It does say that the President believes -- it is true that it 5 is Eizenstadt's letter, but at that par:ticulc;ir point in time 6 he is not asserting -- it is not, I believe.

7 MR. NELSON: That's right.

8 And another argument can.be that Eizenstadt knows 9 how to use the word defer, and so does President Carter when 10 they want to. This -letter shows that they used terminate 11 instead of defer. We are construing it like a statute.

12 MR. SHAPAR: I think the President said defer in

  • 13 14 15 his speech.

Gr-MR. NELSON: The President used the word defer, and he is quoted by Eizenstadt. And then the next word appears, 16 terminate,twice.

17 So assuming that these men carefully pick their 18 language, then the President, through Mr. Eizenstadt, means 19 terminate.

20 COMJ.I.USSIONER GILINSKY: They are talking: __ about 21 deferring commercial reprocessing, and terminating proceedings?

-- 22 23 They are different matters.

COMMISSIONER GILINSKY: It is the deferral of

  • 24 Ace-Federal Reporters, Inc.

25 reprocessing, termination of GESMO.

COM.MISSIONER GILINSKY: Yes.

37 nm23 MR. NELSON: Now I am saying if one wants to read

  • 2 3

this like a statute, you could have a plausible argument that when Mr. Eizenstadt said that the President said terminate, they .. both meant terminate in the sense that i t is over with, 4

just ended.

5 COMMISSIONER GILINSKY: This proceeding, yes.

6 MR. NELSON: And move on to the next problem.

7 COMMISSIONER GILINSKY: Right.

MR. SHAPAR: Of course you .do have the option of further asking whether or not it did make a difference.

10 I am not recommending it, but you have:the option.

11 It could be done informally.

12 CHAIRMAN HENDRIE: Let's see. How sure are we that 13 we might agree with -- that we might agree on a specific set 14 of words that would deal with the after actions?

15 COMMISSIONER GILINSKY: It sounds like we were agreed.

16 COMMISSIONER KENNEDY: There was no better one we 17 saw if history means anything. (Inaudible.)

18 COMMISSIONER BRADFORD: I even venture to say that 19 I might be able to write an opening sentence or two we could 20 agree with. I wouldn't want to undertake to articulate it 21 right now. I want to* .. think about it a little bit.

-- 22 23 Unless you want to arrive about a decision this af ternoo*n ..

24 Ace-Federal Reporters, Inc:. MR. MALLORY: I think it would be possible for the 25

38 mm Commissioners to reach a decision at least on a general course

  • 2 3

of action, *subject to further refinement, upon seeing language which articulated* those.

- 4 5

CHAIRMAN HENDRIE: Well it seems to me that that is the way at this point that we will have to go.

Let me suggest that :.the. Commission agree that with 6

regard to the GESMO proceeding, A, we will defer/terminate 7

one or the other to be selected. But the thrust of the 8

Commission's thought is that the now-recessed GESMO proceeding 9

will indeed not sta~t again until further Commission action.

10 COMMISSIONER GILINSKY: Well, but then you are talking 11 about the same proceeding~

12 CHAIRMAN HENDRIE: All right. I didn't mean to .

13 Until some -- that it or a related proceeding will.

14 start in response to a separate Commission ini:t.iative or another 15 Commission initiative.

16 That means, for instance, that we know what we are 17 going to do, although we may not know the precise word that 18 will be used at an important place with regard to: the Supreme 19 Court case in GESMO.

20 I think that reflects -- it seems to me that 21 reflects what we --

22 23 24 COMMISSIONER GILINSKY: I suppose you can issue an order which says -- (Inaudible.)

Ace-Federal Reporters, Inc. CHAIRMAN HENDRIE: Well, let me -- do we agree on, 25

38A mm it is defer/terminate?

1 2

COMMISSIONER KENNEDY: There is a clear, unquestione 3

commitment on the part of the Commission to reinstitute some

- 4 5

kind of -- reinstitute a proceeding which will examine this and related issues which will arise out of reassessment which is ongoing.

6 Is that what we are saying?

7 COMMISSIONER GILINSKY: I would. _ say reexamine the 8

matter.

9

- CHAIRMAN HENDRIE: I was going to take that up 10 next, okay.

ll The thought I am.trying to get your view on now is 12 that GESMO isn't going forward. That a resumption of GESMO, 13 or alternately the commencement of some new proceeding, has 14 some similarity, but not -- is a matter which will require 15 Commission action at some time indhe future.

16 Okay?

17 Are we agreed?

18 If I can get a nod out of you, Peter, why I will 19 declare it so ordered.

20 COMMISSIONER BRADFORD: Yes.

21 CHAIRMAN HENDRIE: Okay. But there is more to come, 22 23 24 so, okay.

If we agree that far, let us agree that that is a Ace-Federol Reporters, Inc. resolved item.

25

39 mm Now,whether the word to be used is terminate or 2 defer, and almost,not quite, but almost independent of that 3 choice, it is the Commission ag*reement that now, we ought

- 5 4 to say something along the lines tha.t the Commission will examine the matter at an appropriate time in the future, to determine whether either a resumed proceeding or a new 6

proceeding should go forward, and what the appropriate scope 7

should be.

8 MR. MALLORY: Perhaps no proceeding should go forward.

9 CHAIRMAN HENDRIE: Well, zero is always one of the 10 alternatives. And that, without making a.binding commitment 11 as to the time,I think the language ought to suggest that we 12

  • 13 14 15 believe at this point, that an appropriate time for that reconsideration is probably at the end of the current fuel cycle evaluation.

Is that something that we would agree on?

16 COMMISSIONER KENNEDY: I think that we should be 17 perhaps a little bit more precise in the sense that there 18 is a little bit of indefiniteness, I think, About the ending 19 --------------~--

dates of the current fuel cycle evaluation. _....:.I.t__iJ,_pot clear 20 that it is going to end when everyone hopes it will.

21 CHAIRMAN HENDRIE: The language I would use would 22 be something like, the end of the current fuel cycle evaluation 23

  • 24 Ace-Federal Reporters, Inc.

25 program, or the current phase of that program. That is, if that program develops into a 30-year ongoing rolling study, why

40 mm my intent would be to give indication that we* think the time

  • 2 3

to look is not at the end. of the 30 years.r, but at the end of th.e contemplated two..,..year time. And I would use, or about two

- 4 5

years.

COMMISSIONER:KENNEDY; COMMISSTONER GILINSKY:

Or about.

Presuming we would be asking 6

.the President's views at that time, again.

7 CHAIRMAN HENDRIE: Well it is certainly possible.

8

  • t-e might be willing to recognize it as a pbssibili ty, but for 9

- myself I would find it difficult to commit the Commission 10 to ask the President's view, because that presumably* keys any ll Commission action to a favorable response from the President.

12

  • 13 14 15 I simply don:.t care to, for myself, to commit the Agency on out forward to be that closely tied with vhat the President wants to do.

COMMISSIONER GILINSKY: I don't think we are committ d 16 to follow the course that he recommends, but I just can't see 17 how, when this is so closely tied to decisions being made that 18 relate to foreign policy, that we would not ask the President.

19 MR. MALLORY: Future events may indicate that we 20 don't need to ask the Pesident 1 s views . . His views might, in 21 two years, be so clearly stated that that is not necessarily -

22 COMMISSIONER KENNEDY: Clearly if it is appropriate 23

  • 24 Ace-Federol Reporters, Inc.

25 to do so, I can't imagine that we would fail to do so .

How can one know at this point '

and I think that is your

41 mm point -- how can one know at this point what the circumstances

  • 2 3

at the time will be.

I, for one certainly would think, if i t would be

- 5 4

appropriate to ask for those views, _we certainly would* do so.

we wouldn't.

COMMISSIONER GILINSKY: I guess I can't imagine that Certainly we are not compelled to follow the 6

course he suggests.

7 COMMISSIONER KENNEDY: We wouldn't ask __ him if there 8

  • wasn't a need to do so.

9 MR.SHAPAR: He may have declared a position 10 unequivocally without our having had to ask him.

11 COMMISSIONER GILINSKY: That~s possible.

12

  • 13 14 15 CHAIRMAN HENDRIE: Or events may simply be such that what the Commission ought to do 'is fairly clear, and it ought to go ahead and do it.

I would be very I am very reluctant to commit the 16 Commission to this additional procedural step which suggests 17 a considerably less than independent regulatory commission.

18 COMMISSIONER GILINSKY: In fact I can't imagine that 19 we would start a new proceeding without asking for public 20 comment on the scope and a number.of other matters. And at 21 that point ask also. the views of the Executive Branch.

22 COMMISSIONER KENNEDY: You are probably quite right, 23 and tl:B::-efore, why does one need to say that here?

24 Ace-Federal Reporlers, Inc. That would be a normal course that the Commission --

25

42 mm COt1MISSIONER GILINSKY: Well, it may want to say that 2 we will ask fo.r public comment before starting a new proceeding.

3 COMM:ISSIONER KENNEDY: At this point?

- 4 5

COMM:ISSIONER GILINSKY: Yes.

COMMISSIONER KENNEDY: I would not think so.

6 I mean as a normal course of the Commission, it 7 would seem to me that we might want to say something to that 8 effect at the time when we were issuing the call for public 9 comments, explain what we had in mind. We certainly, at that 10 time, if we did not-intend to do so, we might want to say so.

11 Indeed, I would think if we did not intend to do 12 so, we would want to say now.

  • 13 14 15 But something which is the normal course of the Commission hardly needs continuing explanation.

MR. SHAPAR: May I point out that your decision up 16 until now has been.related exclusively to the GESMO proceeding.

17 The paper, of course, covered the interim licensing, 18 covered how you wrap~pthe safeguards part of the thing, and 19 covered the use of MOX fuel.

20 Your decision up to now hasn't addressed any of 21 those. Maybe you don't want to, but I merely raise the point.

-- 22 23 COMMISSIONER KENNEDY: I thought you did say somethin earlier on about the licensing program. In fact,they were

  • 24 Ace-Federal Reporters, Inc.

25 clearly related and treated in the same way.

CHAIRMAN HENDRIE: I haven It yet asked for the opinion'

43 mm for your opinion.

  • 2 3

COMMISSIONER GILINSKY: Well, I think that those ptoceedings ought to be ended.

- 4 5

COMMISSIONER KENNEDY:

COMMISSIONER GILINSKY:

Te_rminated, .and not deferred?

Yes.

COMMISSIONER KENNEDY: I can't agree with that.

6 7 CHAIRMAN HENDRIE: What do you do with the Barnwell application?

8 You know for a proposal to construct where there 9

is nothing in place, I think it is at least correct. It is 10 certainly an inarguable position. You could say that if 11 the proposer expects to come back and do something else, do 12

  • 13 14 15 a plant for reprocessing, i t probably will not look quite like the plant he had proposed before, and in fact it may be rather different. And there may be other partners in it, and that is a new proceeding.

16 It is a little more difficult to argue that with 17 regard to a couple of hundred million dollars worth of steel 18 and concrete at Barnwell, South Carolina.

19 Are you proposing to say now that no matter what 20 the national policy is, you will not take up again the 21 consideration of the licensing under any circumstances in the

-- 22 23 Barnwell plant?

  • 24 Ace-rede;ol Reporters, Inc.

25 I am not .

MR. NELSON: I am not sure of the legality of that.

44

- ----- ------ --~---- --------- - --~---- - - - - - - - - -

mm I.t is the deni.al with prejudice of a case that never got

  • 2 3

heard. There is a pending one.

pending application.

I'm sorry, there is a

-- 4 5

MR. SHAPAR: There is a spe-cific application that may or may not get changed in the future.

6 MR.NELSON: The Commission should know that the --

7 COMMISSIONER KENNEDY: -.~What is the case -- what is 8 the situation -- there are other applications of this kind.

9 What is the circumstance of Exxon, for example? Isn't there 10 an application before the House?

11 MR. NELSON: I think that is the one that I was 12 thinking of.

  • 13 14 15 COMMISSIONER KENNEDY: Well you know that is even less clear than the Barnwell matter which the Chairman is referring to. Exxon hasn't built any yet, but they do have a case before us.

16 Barnwell has several hundred million dollars already 17 invested in facilities.

18 COMMISSIONER GILINSKY: I was thinking of basically 19 (Inaudible. )

20 COMMISSIONER.KENNEDY: But I think we. should go back 21 then to what counsel said.

1. 22 23 MR. NELSON: I wanted to point out the words in the Eizenstadt letter about interim licensing:~ It:is denial of

.

  • 24 Ace-Feo ol Reporlers, Inc.

interim licensing the fuel cycle facilities.

25

45 mm The word terminate is applied only to the GESMO

  • 2 3

proceeding at one place in the letter. In the second place it says termination of Staff reviews and hearings relating to

- 4 5

recycle activities.

And then the parenthetical sentence about continuati n.

And then the next sentence, denial of interim licensing of 6

fuel cycle facilities.

7 COMMISSIONER KENNEDY: Our deferral proposition 8

certainly is consistent with the language which you just read, 9

' which is termination of Staff reviews and hearings.

10 MR, NELSON: Sure it is.

11 COMMISSIONER KENNEDY: Completely consistent with 12 that .

13 MR. NELSON: A denial can also mean a denial without 14 prejudice in the law, without prejudice to the renewal of the 15 application upon future events, refiling or anyihi.ng else.

16 COMMISSIONER GILINSKY: What is it you are proposing 17 to 18 MR. NELSON: Denial with prejudice means it is over 19 with, don't ever darken this door again with *that application.

20 MR. SHAPAR: But the predicate for a hold on interim 21 licensing was supposed to have been .a rule, at least according 22 23 24 to the prior discussion before this Commission.

COMMISSIONER BRADFORD: The GESMO rule?

Ace-Feoerol Reporters, Inc. MR. SHAPAR: A rule on deferral, or whatever you 25

46 mm want to call the word with respect to the processing of

  • 2 3

applications. As I understood the discussions at this table oh the last go around, some sort of rule was contemplated.

Such rule had to be applied against pending applications.

4 COMMISSIONER BRADFORD: None of these licenses, as 5

I understand, can be granted inthe absence of the GESMO 6

proceeding.

7 MR. SHAPAR: Well you have a court decision that 8

~recludes you from any interim licensing.

9 COMMISSIONER GILINSKY: Let me understand.

10 You would terminate reviews and hearings?

11 But in some sense defer what?

12 COMMISSIONER KENNEDY: Not refuse the license .

13 CHAIRMAN HENDRIE: That I don't understand.

14 COMMISSIONER KENNEDY: I am just suggesting I would 15 not turn~fue license back and say your license is denied, we 16 will not consider your license.

17 MR. NELSON: You would freeze it, in.the FCC 18 terminology.

19 COMMISSIONER KENNEDY: We are not going to further

.20 consider your license at this time.

21 MR. 'NELSON: I know what you are saying.

22 23 24 COMMISSIONER KENNEDY:

CHAIRMAN HENDRIE: Defer.

Is that right?

Ace-Feaeral Reporters, Inc. COMMISSIONER GILINSKY: But you use the word 25

47 mm terminate as regards Staff action or hearings.-

2 CO~ISSIONER KENNEDY: In using the word defer, we 3 would say the Staff action and reviews in these matters will

- 4 5

no longer continue.

There will be no Staff action and reviews.

6 MR. PEDERSEN: Terminate for the time being.

7 COMlUSSIONER GILINSKY: Sort of on the shelf.

8 COMMISSIONER KENNEDY: Yes.

9 COMMISSIONER GILINSKY: But you would write them a

~-

10 letter saying we would take no further action on this?

11 COMMISSIONER KENNEDY: I guess I would let the 12 licensing people --

  • 13 14 15 COMMISSIONER GILINSKY: Right. But the letter would say no further action will be taken on this matter, what -- unti something 16 MR. MALLORY: Until these reexaminations --

MR. NELSON: In accordance with the accompanying 17 rule.

18 MR. SHAPAR: Well, the key thing would be the 19 formulation of the Federal Register notice that would embody 20 that policy. That is your key document, not the letter that 21

-- 22 23 would.le implementing.

COMMISSIONER GILINSKY: And then it would say what?

  • 24 Ace-Federol Reporters, Inc.

25 Because even if you use the word defer, it is not clear when you would start up, such restart formulation of such

48 mm proceedings, because you are only going to take it up at some 2 point. And yoµ may or may not start the proceeding up again.

3 COMMISSIONER KENNEDY: If we started the proceeding up

- 4 5

again, would we not still be under the injunction of the Court prohibiting interim licensing?

6 MR. SHAPAR: If I understand the Court's decision, we*

7 couldn't issue the license --

8 COMMISSIONER KENNEDY: That's right, until such time 9 as the proceeding itself was concluded.

~-

10 MR. MALLORY: That is not necessarily so. If the 11 Supreme Court -- if we told the Supreme Court that we are not 12 considering interim licensing, the Court~s decision could be

  • 13 14 15 found to be moot,and that portion of it on interim licensing would be vacated,and the effect would be as though it had not been written.

16 COMMISSIONER KENNEDY: But now really, it, having 17 done that, a year elapses, and then we say, aha, well, no, 18 you know they vacated that decision. Now we can go ahead and issue licenses. I guess I would advise you not to do so.

19 20 I wouldn't.

MR.SHAPAR: Well as of now, at the present point in 21

-- time, we can't issue an interim license under .:the pending 22 decision, is that not correct?

23 MR. MALLORY: That is correct.

  • 24 Ace-Feoerol Reporters, Inc.

COMMISSIONER KENNEDY: And if we issued such a rule, 25

49 .

mm presumably even if we reinstituted a proceed.:j::_ng,_ given the 2 history, the action in the courts up to now, and before the 3 supreme Court now, we would not be able to issue interim

- 4 5

licenses, absent an affirmative decision of the court allowing it.

6 Is that correct?

7 MR. SHAPAR: Well the court has declared the law 8 at least as that court sees it. And I guess it would not be 9 very wise on the part of the Commission to flaunt that declared 0

10 law.

11 COMMISSIONER KENNEDY: So, for whatever time the action in the proceeding is deferred, plus whatever time it 12

  • 13 14 15 takes for the completion of a proceeding, either a new one or a completion of the original one, there would be no interim licensing authorized, isn't that correct?

MR, SHAPAR: That is correct.

16 COMMISSIONER KENNEDY: Okay, that is my understanding 17 No matter what.

18 MR. Iv.LALLORY: The court's decision ~ays that we can't 19 go ahead with license reviews and hearings, and we could not 20 issue a license --

21 MR. SHAPAR: The final document authorizing activity.

22 MR. MALLORY: -- so that if the Commission were 23

  • 24 Ace-Federal Reporters, Inc.

25 to reexamine the GESMO decision and reinstituted a new proceeding, ~t could undertake restart consideration of

50 mm licensing.

  • 2 3

CHAIRMAN HENDRIE: In parallel.

MR. MALLORY: Yes.

- 4 5

MR. SHAPAR: Yes.

COMMISSIONER BRADFORD: Were you suggesting _though that we m:Lght defer the GESMO proceeding, pursue the court 6

appeal, and then if we were successful, go ahead with interim 7

licensing?

8 COMMISSIONER KENNEDY: Oh, no, no, not at all.

9

~---- CHAIRMAN HENDRIE: I think maybe we ought to meet 10 again.

11 COMMISSIONER BRADFORD: :Next week?

12

  • 13 14 15 CHAIRMAN HENDRIE: The major thrust of the Commission's thought, I think,is clear, and is as agreed previously.

That tells you where to go on the Supreme Court 16 thing. You may not want to file all the documents immediately, 17 but it tells you where we are going.

18 The question of the language which would accompany 19 the base decision with- regard to looking again, -I would like 20 to see some draft language, have i t circulated to the 21 Commission.

22 Let's see. Are you as likely a producer of 23

  • 24 Ace-Federal Reporters, Inc.

25 draft language as anybody, Rich?

MR. MALLORY: I suppose so.

51 mm Now have we arrived at the same position on interim 2 licenses that we did on GESMO, or is that not clear?

3 CHAIRMAN HENDRIE: That is not clear to me,, and is

- 4 5

one of the reasons. that I think we n~ed to pause a little bit.

MR. MALLORY: So the range of options open on iterim 6 licenses or on individual licenses, not interim licenses is 7 wider than the GESMO matter is at the moment?

CHAIRMAN HENDRIE: Formally, yes. Because I haven't 8

asked the Commission what its opinion is, and I was getting 9

~-

10 ready to, .and it appearErl to me that some complexities began to arise because it suddenly occurred to me that while you 11 might argµe_ that indeed if a generic consideration and we 12

  • 13 14 15 use the plutonium in reactors, is to be reconsidered in an environmental proceeding, it might have a somewhat it will certainly consider a number of subjects not now in the present hearing and you would say it might have a different structural 16 form, and I would say it wouldn't, we would get arguing.

17 But where we might say all of that, why it 18 suddenly occurs to me that the same sort of consideration with 19 regard specifically to the Barnwell plant, just 'is not the 20 same sort of thing. We will either consider the Barnwell 21 license on the basis of what is there, .*or what can be 22 reasonably added, or we won't consider it at all.

23

  • 24 Ace-Federal Reporters, Inc.

25 And it is not clear to me that saying at this point that there is an end to it -- there may be some difficulties.

52 mm Are there?

  • 2 3

MR. MALLORY: Our proposal is that there be a re'examination of what to do with GESMO and the individual.

licenses at the appropriate time.

4 It seems to me the Commission has -- that is pretty 5

much what has been agreed to in terms for GESMO.

6 CHAIRMAN HENDRIE: But in terms of the individual 7

licenses?

8 MR. MALLORY: Well, there hasn't been any formal 9

agreement.

10 CHAIRMAN HENDRIE: I recognize that excruciatingly 11 well.

12 What I am asking you is, are there certain legal 13 difficulties and questions of fairness and so on in saying to 14 the Barnwell people-, we terminate your pending --

15 COMMISSIONER KENNEDY: Let me just ask for your 16 consideration, suppose that the government decided that for 17 one reason or another it proposed to go ahead and do something 18 with Barnwell, not for the purpose of developing a mixed 19 oxide fuel system, but rather to demonstrate, for example, the 20 feasibility of reprocessing and safeguards associated with, or, 21 and, perhaps demonstration of parts of a waste disposal system.

22 Presumably you would have to get involved in 23 licensing. I would hope that the language we would use in this Ace-Fe. Reporters, ~~- decision of whatever it is, would not put us in an extremely 25

53 mm difficult position should that circumstance arise later where

  • 2 3

we had perhaps foreclosed and had to reopen an issue on our own I' was hoping _we would leave that situation open enough.

-- 4 5

open.

MR. MALLORY: The paper recommends that it be left 6

MR. SHAPAR: The actual recommendation in the paper 7

is the deferral of GESMO and pending license applications.

COMMISSIONER KENNEDY: Pending license applications.

8 MR.SHAPAR: Yes.

9

~- MR. MALLORY: There is a paragraph later in the paper 10 on roughly the subject you mentioned that would recommend 11 leaving i t open.

12 CHAIRMAN HENDRIE: And is the.re a difficulty with 13 termination?

14 MR. MALLORY: In our view we have the power to 15 terminate by a rule, whether i t is decided on generic grounds, 16 as this one is, and that we don't need further proceedings 17 in the individual license cases.

18 MR. NELSON: It is carrying the freeze cases one 19 step further.

20 We argue it is a logical extension of those cases.

21 CHAIRMAN HENDRIE: What would that rule say?

Ace-F 22 23 24 I Reporters, Inc.

MR. MALLORY: The rule would say, in much more detail, that essentially what we have been talking.ibout, becaus the Pres_ident' s policy, cn_d the President's letter, and because 25

54 mm of the studies going on, it would be detrimental to the 1

2 President's policy to continue to the reviews as the President 3 sees it, and it would be difficult for us to usefully go ahead

- 4 5

with these applications with the new studies in the wings, and likely to come up with alternatives which may affect fundamental y what is going on.

6 7 MR. SHAPAR: I think it would say, for the same reasons, that you are either deferring/terminating the GESMO 8

proceeding~ you are deferring -- or whatever word you pick --

9 further processing qf these certain specified license 10 applications defined by category inviting widescale use of 1l plutonium.

12

  • 13 14

,, 15 And I think the same --

CHAIRMAN HENDRIE: That still doesn't get to it.

Suppose we decide to terminate, I use the word advisedly, the GESMO proceeding. We are now turning to 16 Barnwell and say, we terminate your pending application. We 17 are not deferring you, it is terminated, denied.

18 MR. SHAPAR: You would be denying it on the basis 19 of a rule. The rule would come first, and then, processing 20 under the rule would come second, as I see it.

21 And they may demand a hearing.

22 23 24 CHAIRM.~N HENDRIE: And what recourse do the Barnwell people have then?

, Ace-Federal Reporters, Inc. MR. SHAPAR: I suppose they have a right to a hearing 25

55 mm that we properly issued the rule under, something like that.

  • 2 3

Th~y could ask for one, certainly.

MR. NELSON: Then we win .or lose in the Court of 4 Appeals.

5 MR, SHAPAR: I would suggest that the legal situation 6 with respect to terminating GESMO and the legal situation 7 with respect to terminating individual applications is not 8 necessarily precisely the same.

9 CHAIRMAN HENDRIE: Well that':s what seems to be 10 coming home to me. And I found it a little bit difficult to sor 11 that out.

12 I think it would be helpful, because the paper doesn't

  • 13 14 15 really de~l with denying the application .

MR. SHAPAR: Right.

CHAIRMAN HENDRIE: The paper deals with the recommen-dation to defer right on down the line. Deferral of these 16 proceedings appears to me to be something we could certainly 17 do and it doesn't offer a difficulty.

18 COMMISSIONER GILINSKY: ~::You are stopping Staff __ actio ,

19 hearings pending something new happening. New generic 20 proceedings -- (Inaudible.)

21 MR. SHAPAR: Well, if you go the deferral option, it 22 is. easier to write in a sense that it can be deferred in both 23 cases pending further order of the Commission with a promise to look at the situation, say*after the completion of the

55 ...A mm the international fuel cycl~ studies.

  • 3 2 MR. NELSON:. Our work is much easier from the --

MR. SHAPAR: It is indeed, but that oughtn't to wag the dog here.

4 MR, NELSON; That is right, it shouldn't be.

5 Litigation considerations should govern. The worst that happens 6

i.s you lose i.n the. Court of. Appeals.

7 JiR,.SH.A.PAR: No, litigation ought not to be governing, 8

policy ought to be_ governing here.

9 CLaughte1:. )

10 Litigation ought to be considered.

11 CO.lxlMISSlONER BRADFORD: Litigation at its highest 12

  • level needs to be a reflectiori of what tre law requires; and 13 that probably ought to govern po_licy.

14 MR. SHAPAR: If. the law is all that clear.

15

  • COMMISSIONER BRADFORD: That is the point.

16 I think what you are saying is, if we have a 17 choice of the choices that we are going to lose in court, then 18 the litigation 19 MR. SHAPAR: My point is that you have- choices.

20 MR, NELSON: No, we are not saying that .

.21 We are saying that we have a better product to

-** 22 23 litigate, if we are talk~ng about deferral of the licensing.

MR. SHAPAR: Yes .

24 Ace-Federal Reporters, Inc. MR. NELSON: It is harder-to talk about throwing those 25

56 mm applications out the door .

2 MR .. BRADFORD: And is deferral the same as denial 3 without prejudice?

4 MR. NELSON: It could be written that way. Denial 5 with prejudice is what is different.

6 Now that Eizenstadt and the President did not say.

7 Denial,without qualified.-*- But interim license of fuel cycle 8 facilities, denial of interim licensing for use of mixed oxide 9 fuel reactors except in .small quantities for experimental 1O purposes.

11 COMMISSIONER KENNEDY: I wonder if they had discussion 12 on approaching this one as they select those words.

13 MR. NELSON: T~ey spent many months. They might 14 have.

15 COMMISS~ONER KENNEDY: Yes, I am sure they did.

16 Several of which I gather were --

17 CHAIRMAN HENDRIE: I would think it would be helpful 18 to have the situation of the individual applications clarified 19 by the legal staff.

20 I would judge on one * ~ther elem,ent of the proposi tio 21 that the Commission would generally support the proposition of 22 23 24 going forward and publishing the safeguards supplement as a technical report of the Commission staff.

COMMISSIONER KENNEDY: All parties, almost unanimously Ace-Federal Reporters, Inc, 25 propose this, don't they?

57 mm CHAIRMAN HENDRIE: Yes.

  • 2 3

subject.

So that we may regard that, John, as a decision made.

And I think for the rest we will meet again on this 4

COMMISSIONER KENNEDY: May I ask about the safe:.J:o_ck :gu d 5

supplement? What is its present status, and how much work 6

7 is going to be required to complete i t for release as a technical document.

8 MR. MYERS: It is .essentially complete. It only 9

needs some minor modification to change it from a part of 10 GESMO to a technical report.

11 COMMISSIONER KENNEDY: So it is ready for issuance.

12 MR. GOSSICK: I might note, Mr. Chairman, that we 13 have an informal, I believe it is, request from Congressman 14 Moss' committee for _a copy of the report.

15 MR.SHAPAR: The MOX, I guess was the last point.

16 COMMISSIONER KENNEDY: ~Mex fuel?

17 MR. SHAPAR: Yes. This was unanimous, too, I think, 18 the recommendation.

, 19 CHAIRMAN HENDRIE: It goes the same way as the 20 GESMO, what to do with GESMO, right?

21 MR. SHAPAR: I *think there was a recommendation to 22 continue to allow them the experimental fabrication with the 23 use of mixed oxide.

  • 24 Ace-Feoerol Reporters, Inc. CHAIRMAN HENDRIE: I see.

25

58 mm 1 COMMISSIONER KENNEDY: I believe the.President's 2 letter proposes t&at, does it. not?

3 No one disagrees with it?

- 4 5

MR. SHAPAR: Yes.

CHAIRMAN HENDRIE: Let me _probe and see if there 6 is any difficulty with that.

7 Okay?

COMMISSIONER KENNEDY: (Nodding negativelj.),

8 9

MR. MALLORY: There is a matter of a small experimenta

- fuel fabrication pl~nts which the letter didn't really address.

10 11 CHAIRMAN HENDRIE: Well, if you are going to have except in small quantities for experimental purposes, then I 12

  • 13 14 15 would assume that in those facilities we would regard those uses falling there.

COMMISSIONER GILINSKY:

fl-.-

I want to think about just exactly what small means.

16 CHAIRMAN HENDRIE.: Okay.

17 Peter?

18 COMMISSIONER.BRADFORD: Yes. I have the same feeling 19 that in principle I think it is okay. But we are going to have 20 another meeting anyway, maybe it will give us a somewhat"more 21 concrete definition as to what that means.

22 CHAIRMAN HENDRIE: So, could we have a bit of 23

  • 24 Ace-Federal Reporters, Inc.

25 amplification on the recommendation of the other facilities that are opera ting.

59 mm Okay. Thank you very much .

  • 2 3

(Wh_ereupon, at 3: 40 p .rn., the hearing in the above-entitled matter was terminated.

4 5

6 7

8 9

10 11 12

  • 13 14 15 16 17 18 19 20 21 22 23
  • . 24 Ace-Federal Reporters, Inc.

25

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