ML22230A059
| ML22230A059 | |
| Person / Time | |
|---|---|
| Issue date: | 12/07/1977 |
| From: | NRC/OCM |
| To: | |
| References | |
| Tran-M771207 | |
| Download: ML22230A059 (64) | |
Text
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
I DISCLAIMER This is an unoffic~al _transcript of a me~!ing_oJ7fhe Unite? States Nuclear Regulatory Comm1ss1on held on
.o;.:;,.,;
"? 19 in the Commission 1s offices at 1717 H Street, N. W., Washington, D. C.
The meeting was open to public attendance and observation.
This transcript has not been -reviewed, corrected, or edited, and it may contain inaccuracies.
The transcript is intended solely for general informational purposes.
As provided by 10 CFR 9.103, it is not part of the.formal or informal record of decision of the matters discussed.
Expressions of opinion in this transcript do not necessarily reflect final 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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25 UNITED STATES OF AMERICA NUCLEAR.REGULATORY COMMISSION COMMISSION MEETING
- _ 'OPEN::::SESSI-ON GESMO Room 1130 1717 H Street, NW Washington, D.C.
1 Wednesday, 7 December 1977 The meeting in the above--entitled matter was
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convened at 2:20 p.m., pursuant to notice, JOSEPH HENDRIE, Chairman, presiding.
PRESENT:
JOSEPH HENDRIE, CHAIRMAN RICHARD KENNEDY, COMMISSIONER VICTOR GILINSKY, COMMISSIONER PETER BRADFORD, COMMISSIONER H. Shapar L. V. Gossick
- s. Myers J. Nelson R. Mallory It. Pedersen D. Rathbun
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PROCEED IN G:S CH~IRMAN HENDRIE:
Okay, let us come to order.
The Commission is meeting again this afternoon on the question of what to do with the GESMO proceeding.
We have had a number of meetings on this subject.
I would hope we are coming somewhere close to a conclusion.
Now I seem to have received a late running note from Cliff Smith's office, a 594-A.
Shelly, is that your --
figures.
MR. MYERS:
Is that the one with the latest figures?
CHAIRMAN HENDRIE:
That is the one with the latest 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 was pretty much the same.
The individuals were almost uniformly encouraging continuation of the GESMO proceedings.
Utility groups indicated *that. the.President's policy was well':tounded in.scientific and technical fact, and that if the President's policy was so founded,that the GESMO proceeding would be useful to continue.
that.
That was the Consolidated Edison Company of New York.*
The Consolidated Utility Group --
COMMISSIONER GILINSKY:
Wait a minute.
Let me get
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If the President's policy is well founded?
MR.. MYERS:
What I'm saying, if you had a lot of information then his policy should.be grounded in facts, and he couldlget those facts from the GESMO proceeding.
COMMISSIONER GILINSKY:
I see.
If it is to be grounded in facts?
i MR. MYERS:
Right.
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-i The Consolidated Utilities Group suggested that we I
ought to I take some. steps to preserve the work that has been i
done ini:f/.e past and-they sort of encouraged continuing the I
nuclear industry in general with sort of --
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I COMMISSIONER KENNEDY:
The paper says it should defer.
MR. MYERS:
Let I s see.
I have here reserve --
COMMISSIONER KENNEDY:
Is this the Consolidated Utility Group?
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MR. MYERS:
Yes.
Sorry, they recommended the deferral, but they wanted sdmething on the record that could be picked up in I
-1 the futuJ:te rather than::!erminating now.
So their idea was to defer rather -than terminate.
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.
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1 The states, New York and Wisconsin -- let's see, the
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cancelled out of this, New York and Wisconsin.
CHAIRMAN HENDRIE:
This was back in the earlier, in the base paper, isn't it?
Or is that where you are looking?
MR. MYERS: No, I was looking at the newer one.
COMMISSIONER KENNEDY: It was my impression they believed we ought to terminate in accordance with the way --
CHAIRMAN HENDRIE:
I thought I remembered their joint letter that way.
.MR. MYERS:
That is indeed the* case.
The State of Ohio came in and suggested that we continue the GESMO hearings.
COMMISSIONER KENNEDY: What was their reason?
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 much the same as the ones that we went over last time.
There_didn't seem to be any new information that came out of the new letters that we have gotten.
CHAIRMAN HENDRIE: Okay.
COMMISSIONER BRADFORD: Do you want to pick up where we left off?
(Laughter.)
CHAIRMAN HENDRIE:.Yes.
You know, we had a little addendum to this Staff
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5 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 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
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 get four offices to coordinate and agree on it, so I think we are prepared to speak to it, but we didn't submit a formal COMMISSIONER KENNEDY:
Four offices?
MR. PEDERSEN:
Yes, sir.
The same four that were involved in the original options paper.
CHAIRMAN HENDRIE: That's right, there were four of you.
I'm sorry, Ho~ard.
MR. SHAPAR:
I thought you left out OPE.
(Laughter.)
MR. PEDERSEN:
Easy to overlook, Howard.
CHAIRMAN HENDRIE:
Okay.
The last time we had the options and views from the Amalgamated Offices Group, but I kept admonishing the Commission not to discuss that very extensively.
I only wanted to sort of put on -~the table before us, and then we would close this time on the discussion.
So I think with.that sort of preliminary comment, Ace-Federcl Reporters, Inc.
25 my inclination is to drop the puck in the middle of the table an
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25 get back off the ice before I get hit by your stick.
Pet~r, go ahead.
(Laughter.)
COMMISSIONER BRADFORD:
I-'m not sure whether I'm the puck or the stick.
COMMISSIONER GILINSKY: The stick.
CHAIRMAN HENDRIE: Clearly the stick.
COMMISSIONER BRADFORD: Well, where we left off before the commercial last week --
(Laughter.)
We were sort of focusing on what the differences really were between deferring and terminating.,
and then what that meant in terms of a commitment to restart.
The question that I guess had been on the tip of 6
my tongue then was whether, if in fact -- whether in fact there is any :substantial difference between. terminating and deferring, if one terminates with a sentence that then says that, of course these proceedings may be commenced anew under appropriate circumstances in the future.
MR. MALLORY:
I think the distinction is the degree of the commitment to reopen the proceedings at some time, or rather to reexamine the situation.and determine whether they should be reopened, or something else should be done.
If you say terminate, but we are going to make this reexamination and determine whether things should be restarted
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from scratch, that to my way of thinking is no different from saying, well, we will defer and then we will make a reexaminati n.
Then it is just a difference in wording.
COMMISSIONER BRADFORD:
B.ut perhaps a very important one, since the President's letter used the word terminated, and any choice we make involving a word other than.. terminate will be seeming to have a significance:that perhaps it doesn't really have.
M.R. MALLORY: Well I would think that if you use the word terminate and structure it in the way we have talked about a deferral option, that there would be no difference than from a deferral option.
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 simply come alive again.
MR. MALLORY:
I think that would be probably a small matter. compared to other things that would be involved in restarting the proceeding.
MR. PEDERSEN:
I would add a couple of things to that.
I agree with what Rich has said. One is, I think 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
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letter.
I think if you decide to terminate, it could be read that you gave that extensive, maybe indeterminate weight.
I think if you choose to go the deferral route, you will have somewhat more flexibility in citing a number of facto s that led you to this decision -- President's view, INFCE, NASAP, Congressional views, and the like.
I think it gives you somewhat more flexibility, and it tends, quite frankly, COMMISSIONER BRADFORD:
We can cite all that on the way.
The only question is MR. PEDERSEN:
I think it's a question here, somewha, of a question of image and the message you want to convey, too, that needs to be considered.
In --
COMMISSIONER BRADFORD:
It's a question of whether they're going to believe us.
MR. PEDERSEN: Also, I don't know how much weight was assigned to it, but I would raise it.
At the outset, when we undertook this endeavor, there were some questions raised in Congress as to whether this was even an appropriate exercise for NRC to be involved in.
COMMISSIONER BRADFORD:
GESMO?
MR. PEDERSEN:
GESMO.
And looking at this kind of evaluation, if you choose to terminate, you may give some --
and I can'.t put weight on this -- but you may give some impetus to those and say you shouldn't have had that kind of responsi--
btlity tn the first ~lace,
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Deferral allows you to give a stronger message that there's no question in your mind about your role in this, it's just a question that the timing is not right, more information is coming to you, and so on.
Again, I don't know how much emphasis to place on that.
Howard may have a feeling COMMISSIONER 3RADFORD:
Except wasn't GESMO --
GESMO essentially discharges what the Commission perceives to be its duties underneath us.
MR. PEDERSEN:
I would have to -- Dennis, maybe you remember what the precise grounds on that were that were challenged?
MR. RATHBUN:
I don't think it really was a chal-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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can't cite the specific COMMISSIONER BRADFORD:
The question wasn't whether the assessment had to be made. The only q11etTon was whether we should do it.
MR. PEDERSEN:
We would elect --
- MR. RATHBUN:
Or they would do it in parallel or they would do it in lieu of.
MR. PEDERSEN:
But again, I do think the image you want to convey can't be overlooked, how much weight you want to.~be appear to be assigning these various factors.
I do think the choice between termination and deferral does enter
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MR. MALLORY:
The Hearing Board in its comment made the argument, too, that if you defer, there's no final decision on the Commission's part on what to do about plutonium re-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 11 12 13 14 15 16 i7 18 19 20 21 22 COMMISSIONER GILINSKY:
Wait a minute.
You said there's no practical difference between the two.
MR. MALLORY:
All right.
I am using, in terms of 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.
And I think maybe that's the best way to use the words, at least for discussion.
If you want to write the paper saying termination, let's use the deferral sort of a struc-ture as we have the word deferral.
We don't have any trouble with that.
COMMISSIONER BRADFORD:
There are a whole range of 23 24
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terminations.
The one you describe is more or less what that would be saying, we'd be terminating plutonium recycling.
Simply say terminating the environmental assessment -- we don't really have the power to terminate plutonium recycle 25
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25 11 for the United States for all time.
MR. MALLORY:
As long as those facilities -- not for all time, certainly.
But as long as those facilities require a license, and we're not considering giving them one, it's out of the picture.
COMMISSIONER BRADFORD:
Yes.
MR. PEDERSEN:
You can't talk about provisional termination.
There's all kind of ranges.
COMMISSIONER BRADFORD:
There is an argument, then, to the effect that termination of an environmental impact analysis requires an environmental impact ~nalysis.
MR. MALLORY:
That once a proposal is before the Hou e and it might reduce environmental impacts from mining and ~l!in~~-them
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an impact statement is required before you abandon that proposal~
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COM._MISS IONER BRADFORD:
Which might look. a lot more like an environmental impact statement that you're in the process of abandoning.
MR. MALLORY:
And that means their argument is therefore the proceediDgs have to continue.
We don't think that that would hold up, but there is more risk of a problem of litigation.
CHAIRMAN HENDRIE:
I'm sorry, I was reading some-thing, and I missed the front end of that.
MR. M_~LLORY:
An argument has been made by some of the commenters that the plutonium recycle, the Commission had
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25 12 to give an impact statement in order to terminate consideration of plutonium recycle.
Our position has been if there were a deferral, the Commission is making no final decision, it clearly needs no impact statement.
COMMISSIONER GILINSKY:
Wait a minute.
Wouldn't that argument -- if it takes an impact statement to end an :.
impact statement, it would also take an impact statement to start an impact statement.
that.
(Laughter.)
CHAIRMAN HENDRIE:
Well, summetry would require 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 were the case, then impact statements would swamp the federal government, because the government decides not to do things all the time much more frequently than it decides to proceed some course of action.
And we don't think that's a likely interpreta tio.n.
MR. SHAPAR:
I think the legal consensus is you don't need an impact statement to either terminate or defer.
My own personal view is the legal considerations revolving around the distinction between a deferral and a ter-mination should-not weigh heavily in whichever way you decide
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25 13 on policy matters.
They are not overly significant.
That's my own personal view.
CHAIRMAN HENDRIE:
That's easy for you to say.
( LAughter.)
CHAIRMAN HENDRIE:. He has to try the case.
MR. SHAPAR:
And he's a good lawyer.
I expect him to win.
CHAIRMAN HENDRIE:
He has every confidence in him.
COMMISSIONER KENNEDY:
With full strength of your opinion behind him.
COMMISSIONER GILINSKY:
We're asking questions?
CHAIRMAN HENDRIE:
Anything you'd like -- *offering, 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 of the questions that was troubling the Commission -- and we were sort of cut off in mid-debate -- was if you go with de-ferral, what kind of eve.nts or what situations might retrigger a reappraisal.
Would you want to put it as a fixed time frame?
Would you want to 1hang it to a reassessment of administration policy, the end of INFCE?
You may want to save that as a second-order question after you decide which way you want to go.
But that was the thrust of the debate.
We were cut off, I think.
~
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25 14 MR. SHAPAR:
You might find it useful to have the options in front of you before you make that sort of dedision.
COMMISSIONER BRADFORD:
Our discussion at the time that it came to an end kind of ended,is it's this or this as though they were all choices.
In 'fact, you could probably structure a restarting that depended on several variables, the end of which might address, I think, a concern that Howard has, which was that there should be some fixed point in time on -- that is, that you can say the end of INFCE or further communications from the President or not later than January 1, 1982.
MR. SHAPAR:
.Or you could say pending further order 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.
COMMISSIONER GILINSKY:
It seems* to me that in eithe, case you're talking about putting
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25 15 MR. SHAPAR:
Yes.
COMMISSIONER GILINSKY:
For a couple of years, anyway.
MR. SHAPAR:
I think the.first event would be the completion of the studies.
I think the policy option after that, is if we want to go further off into time.
COMMISSIONER GILINSKY: Right.
Which is roughly abou two years.
MR.SHAPAR:
Right.
COMMISSIONER GILINSKY:
And in any case it seems to me the proceeding,whenever you start up again, is going to have a new scope or different scope than the present proceeding 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 it seems to me that there is very little practical difference between sort of deferring and picking up again,but reconsidering the scope and the information and so on, our *terminating with sore commitment to take a look at it again...
I guess I'm persuaded by the idea of using the word terminate simply because as Peter said,that is the language used in the President's letter.
It is also a cleaner decision, I think.
It gives us a little bit more freedom to -- our successors, anyway --
to structure the next proceeding appropriately without being
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25 16 tied to what is going on now.
MR.. SHAPAR:
Would you say anything beyond that in connection with intending to decide whether or not to ins ti tu te a new proceeding as of a g*i ven point in time, or would you drop it there with termination?
COMMISSIONER GILINSKY:
I would certainly say when we would look at it ag~in; when we take up the question as to whether to have a proceeding or what kind of a proceeding, as of some date, say a couple of years from now on the completion of these-studies, or say no later than a set date.
COMMISSIONER KENNEDY:
It seems to me that that is the effect *of the probe.
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 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.
COMMISSIONER KENNEDY: I am sort of inclined to go with language which means what we mean.
COMMISSIONER GILINSKY: Well, I think it says what I mean.
COMMISSIONER KENNEDY:
Well, we just said it meant deferral.
COMMISSIONER GILINSKY: Well we didn't say that.
COMMISSIONER BRADFORD: We said deferral can be
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17 termination or termination can me.an deferral.
COMMISSIONER KENNEDY: Well, I didn't.
MR. SHAPAR: Well, the language that goes with it can create the sense of the same effect.
I think that's a significant point.
MR. MALLORY:
We have used deferral --
MR. SHAPAR: If you just use one word, there is going to be some explanation.
I'm merely suggesting that the explanation can create an effect which is almost identical no matter what the main term is, termination or deferral.
MR. PEDERSEN:
If you say terminate~.
and as 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.
COMMISSIONER KENNEDY: What about all the procedures that now exist?
What is the effect of the termination on the existing procedures that are in the --
(Inaudible.)
MR.SHAPAR:
Well, if the Commission instituted a new proceeding, it could simply adopt: in the new proceeding, the same ground.. rules as before.
Another ground rule it could establish is that the old record would be brought into the new proceeding and supplemented as needed.
Or, you could say start from scratch
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25 18 if you wanted to.
You would have that option.
I would think you would probably -- unless events are drastically different than I foresee, I suppose you would want to get some mileage out of the old record.
COMMISSIONER KENNEDY: Can any of the participants who wrote the paper recommending deferral support the recommendation?
I would like to hear them argue the case.
MR. PEDERSEN:
I will tell you what was in my mind.
I will be happy to.
I think the choice between termination and deferral 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 time.
I think the reason here you are stopping doing it now is not because you sort of came to a logical end point, but because events changed, and things changed.
And because of that I assumed that you would probably want to reexamine this, or at least not let go of it completely until you saw if the situation was going to straighten itself out given the President's commitment to reassess, given INFCE.
It would be different if you had arrived at your 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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25 19 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 very artfully, could give the impression that you gave undue weight to the President's letter.
That these other factors counted for nothing, really, all of the other views and so on.
I thought deferral was not inconsistent with the President's wishes, but at the same time was more consistent with the interests of the Commission and with the situation as I found it.
And those were the considerations that weighed heavily in my view in supporting the deferral option.
COMMISSIONER KENNEDY:
The paper indicated in the statement, deferral is also more consistent with~--
active participation in the alternative fuel cycle studies.
Could you explain.:that a little bit?
MR. PEDERSEN:
I think,I'm not sure I could support that.
I don't want to be tied to every single word in the paper.
I think we are committed as NRC,,we are committed as NRC clearly, Commissioner, to participate actively in INFCE in any case. I think here the deferral would simply give us an additional impetus or an additional basis for doing 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
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25 20 actively participating in it.
it.
I am not sure it would change our participation in COMMISSIONER KENNEDY:
Jerry, did you have a view?
MR *. NELSON; I was all.. for deferral and still am for all of the reasons that Ken said, plus the simple lawyer's reason of a simple lawyer, that there is some analogy in the case law for licensing freezes pending reexamination of things.
That is different to me than termination.
To me that is a word.that seems to say that.. it is all over with,
_go home everybody.
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.
COMMISSIONER KENNEDY:
No matter how our feelings ar.
MR. NELSON: For this day, yes, sir. It looks like the agency says the case is ova:-.
COMMISSIONER KENNEDY: No matter how we say it.
MR. NELSON: I may say as to the point about the Eizenstadt letter that Ken correctly points out, that the more you use that terminology, the more*you invite challenge on the
_grounds that the Eizenstadt letter doesn't fully support termination itself; that its reasoning is inadequate; that they
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25 21 are simply conclusory assertions, the argument that Westinghous makes in its papers in this case. The more that we rest on truly other factors and say we are doing that, and the more we make a public pronouncement to reexamine this thing at some future date, the better it seems to me our posture is.
MR. PEDERSEN:
I might say, Commissioner, I think we can write it in such a way that no matter -- you say no matt how::we say it,,.. termination implies things.
I can see us saying we are going to terminate, but -- and then adding so many conditions that it makes* a jokt* out of the decision.
in mind.
COMMISSIONER GILINSKY: That is not what I implied.
COMMISSIONER KENNEDY:
That is not what anybody had MR. PEDERSEN:
As.you indicated, there is no way we can write it. Sure,.
we can say we are going to terminate, we are going to take it up under any of the following 50 conditions.
COMMISSIONER KENNEDY:
The word termination, what I am trying to say, it seems to me the word termination would be taken by some to imply a conclusion as to the* substance of the matter; a conclusion which we have never yet come to,nor indeed are yet in a position to come to on the basis of the record.
MR. PEDERSEN: Tpq.;t~_ as I indicated earlier, was one of the factors weighing my decision to support deferral.
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4 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 that the proceedings, if you took them up again would very 22 5
likely look different from before.
6 COMMISSIONER KENNEDY: Thatr of courser is Jerry's 7
argument on deferral, because it is precisely that sort of 8
history that he.is citing.
ThatJmplies a circumstance in which 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 license matters are put in_a freeze temporarily while policy is reviewed.
Then one goes back to where he was, moves forward with a new set of rules, essentially.
MR. NELSON: That is what those cases deal with, yes, sir.
COMMISSIONER KENNEDY: That's right.
MR. NELSON: Just as a litigatorr I am from that standpoint, more familiar with those cases and more at home with them than I am with the magic word terminate which appears in the Eizenstadt~letter.
On the other hand, if the suggestion is that we say we terminate, but we then make a public commitment to reexamine at point A, point B, point C,then why aren't we saying deferred, because that is what we are really doing.
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Then we are just using the word terminate because the Eizenstadt letter uses it.
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25 23 COMMISSIONER GILINSKY:
I think if we did start up it would be a different kind of a proceeding.
MR. NELSON: It would under either view, Commissioner.
There would be a whole new dimension. to the proceeding at any point down the line.
COMMISSIONER BRADFORD:
But the fact that it is sort of a different kind of a proceeding is of some importance.
COMMISSIONER._KENNEDY:
A different kind?
How different in kind is it?
COMMISSIONER BRADFORD:
Obviously that would depend on a lot of factors that we don't now know.
A substance of a different proceeding in terms of 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 it up again, then deferral is the more descriptive word.
I mean, Sleeping Beauty was deferred, she wasn't terminated.
(.Laughter.)
MR. PEDERSEN:
Sleeping Beauty was suspended.
MR. SHAPAR: Could I suggest one other point that hasn't been.mentioned, and that is the dee;ision by the President at least after the studies,are complete, it could be one of two things:
It could be no plutonium recycle after the study,period, as far as the Administration was
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25 24 concerned.
If that were the case, I would assume that-there wouldn't be any institution of a new proceeding at all, had you terminated.
And had you deferred, the decision at that point wou d be that the deferral would now.become a termination.
On the other hand, if the decision after the completion of the.study was, well, I guess under certain circumstances plutonium recycle can continue, then I would assu e at that time the Co!JlITlission, if it had terminated, would want to~reinstitute the proceeding, or if it had deferred would want to continue it.
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 and forth between deferral and termination.
That is something less than the full range of options available to the Commission.
I might comment on some of the other options for myself, I guess-.
I do think that the pause.:in the GESMO proceeding in any event would have to continue for a couple of years.
There are, indeed,. simply too many new possibilities arising for the stu y to come to~ valid conclusion which would stand any sort of test,*
if we were to go forward now and complete on the
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25 25 basis of the present outlook.
So I agree, indeed, that it must at least remain in recess.
Going with that, I find it difficult then to contemplate the individual license actions at issue here by implication. To see_ them going forward -- these facilities are of sufficient size against the industry,. so that each one of them is :rretty well a major action in itsel:(.
I am a.fraid to_ go with any of those you need the accompanying generic.coverage.
So I think it tends to be the GESMO decision carries the individual applications with it.
For myself, I prefer the word deferral. It has
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what I think is appropriate as the implication clearly built into the word, that there will be a further looking at the proposition at an appropriate time.
And I suspect that if we were to reconstitute in due time a proceeding to look at the merits and demerits of mixed oxide recycle and so on, I have a strong suspicion that the formal arrangement of the proceeding would be in fact what we have now going in the GESMO case.
It seems to me that there was a good deal of thought that went into forming that set of procedures, and it provides 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 would necessarily want to consider from scratch the possible formal structure of the proceedings. It seems to me the one 3
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So I would look to a deferral order from lt.he Commission wi.. th language which would key the reconsideration at the Commission's discretion, but suggesting -- not committing, but suggesting that *an appropriate time for that would be after the completion of at least.the present two-year"."""."" expecte two-year cycle international fuel cycle evaluation that's been 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 time?
COMMISSIONER GILINSKY: Yes.
Not necessarily look at the question of mixed oxide, but a little broader question. It might be a different question.
But that, and related questions.
COMMISSIONER BRADFORD: I would also terminate with a statement to the effect that of course as circumstances change, it is possible to commence a proceeding anew.
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25 I guess my feeling on it is that it is a fairly
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25 L
more accurate description of the factual situation.
But it seems to me that if the President advises us that -- in a particular area, that a conceptual-:- particular step on our part is important to the conceptual underpinning of his foreign policy, that I have to have a pretty strong reason then to back away from that.
That this isn't a simple -- it isn't a statutory noninirnicality finding.
It is a statement that this is part of his overall_ policy, and I just think that any word that we use less strong than the word that he uses, has the potential of being read in other countries as pulling the plug of his policy on him.
That is just not a posture I think we ought to get into.
CHAIRMAN HENDRIE: I don't find the same difficulty.
Mr. Eizenstadt's letter, after all -- neither Mr. Eizenstadt's letter nor the President's policy imply in any sense that a decision has been made that plutonium recycle will never occur, that the policy is very explicit, that is, everybody please hold while we consider some of the aspects.
That is, the President's policy is, in fact, deferral and not termination, okay?
COMMISSIONER BRADFORD:
I wish he had said that.
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25 28 CHAIRHAN HENDRIE: The fact that Mr. Eizenstadt uses a particular wprd I don't find convincing one way or another.
COMMISSIONER GILINSKY: Well the President said for the indefinite future.
- COMMISSIONER KENNEDY:
Indefinite future can be any time from zero to infinity.
CHAIRMAN HENDRIE: Yes, but*that is still rather a clear distinction between that and saying, no, that's the end of it.
Let me complete the poll.
COMMISSIONER KENNEDY: You and the counsel have eminently well stated my view clearly, precisely, and with the 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 support of my view, to say what it is we really mean. We ought to use the word which conveys what it is we really mean rather than use one word because we think it is nice to use it, but then write several pages iDdescribe something else because it isn't quite what we meant.
I think we ought to say what we mean and then describe why we mean that is a deferral, taking fully into account, indeed, the President's concerns, and it is precisely for that...reason that we are deferring it.
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25 29 COMMISSIONER BRADFORD:.Now what do we do?
COMMISSIONER GILINSKY:
You are not terminating, or you would not be terminating the use of plutonium.
You would be terminating a proceeding, which is a different matter, because the nature of the --
CHAIRMAN HENDRIE:
True. But you have to connect it for me.
COMMISSIONER GILINSKY: You can't, as a matter of fact, terminate the use of plutonium for all time.
That is something you can't.do.
So, in effect anything you are doing is just a deferring.
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 of a different animal, then it makes sense to terminate one and start up another.
So I think it.is perfectly consistent.
CHAIRMAN HENDR!E:
You mean with the President's view or with the current Administration policy?
COMMISSIONER GILINSKY:
Well, with the logic which you questioned here.
CHAIRMAN HENDRIE: Well, let us consider a little bit -- come away from the even split, and com~ away toward the
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25 30 footnote language or the added comments.
And I wonder to what extent each of us has said in slightly different ways, well, whatever the top line is the 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 and ~related questions that come out of the various ongoing studies.dealing with alternative uses of nuclear fuel. Things may just look different two years from now. They certainly look different now than they looked two years ago.
CHAIRMAN HENDRIE: Well, I don't see any harm in saying it.
In part it says we will exercise the prerogatives 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 it looks reasonable that a time for that reconsideration would be about two years, about the end of the present -- what is now scheduled to be the fuel cycle evaluation run.
And I suspect maybe -- I kind of doub"t that things will focus much before :then :in.any event.
And it seems to me that trying to specify anything that stretches out a great deal longer than that is limited --
(Inaudible.)
Now, how close does that come to language that you would find acceptable?
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25 31 COMMISSIONER KENNEDY:
I was going to suggest that a great deal of this language ought to be the same, no matter how the decision is made.
CHAIRMAN HENDRIE:
Yes, r-think so.
COMMISSIONER KENNEDY:
It s~ems to me it would be useful to write all that language and* then see how it would fit into alternative opinions; the one which our colleagues suggest and the one which you and I think:.*.:..
CHAIRMAN. HENDRIE: That is a suggestion.
Peter, you had in the last thing you said, there was a somewhat different flavor that I caught, to the sort of language.that you would see with regard to the future.
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 one of commencing a new proceeding rather than restarting.
You can't use terminate and restart in the same paragraph.
That wouldn't make sense.
I think that may be the only difference.
CHAIRMAN HENDRIE: Okay.
COMMISSIONER BRADFORD:
But the triggering events wuld probably be fairly similar.
CHAIRMAN HENDRIE: I recommend we try to draft some of this language.
COMMISSIONER GILINSKY: On an earlier occasion
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4 32 Commissioner Kennedy said he would change his vote to (Inaudible.)
-- I don't mean earlier in this matter, in anothe matter.
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, 1 o not that you would. -
11 COMMISSIONER KENNEDY: I said I would have, but I 12 felt the matter was essentially inconsequential?
13 14 15 16 17 18 19 20 21 22 23 24 I don't find a parallel.
MR. NELSON: We should keep in mind a commitment,
that we made to the Supreme Court that we would be able to reach a decision by.. December of 19 77, and the extension of time for parties to file runs out on December 23rd.
Now that does not preclude seeking a further extension, should there be valid reasons to_do so, for getting it granted.
COMMISSIONER BRADFORD: Well I think, it in fact --
(Inaudible.) -- which of those words --
MR. NELSON: No, it doesn't. And from what we have heard today, we have the authorization to go forward.
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25 33 terminating the proceeding. And for Supreme Court purposes, purposes of th.e instant case, it may not make all that much difference what word is used.
But I merely remind the Commission that we have an obligation that'we have got to do somethins about.
COMMISSIONER KENNEDY:
But it would be a bit off to have used one word before the Court, and another word in ou~ opinion.
Most people would think it. I would be among them.
MR. NELSON: We would have to point out to the Court that there was division of opinion at the Agency between terminate and defer, but in either view our suggestion is the case not go forward in that.posture.
The Court is interested in whether there is something that they have to decide right now.
Now here is *=-a-= correct use of the word deferral~~= We believe further proceedings in this court should be deferred until the NRC has completed its reassessment.
That is what we were going to do.
Don't decide it until we COMMISSIONER KENNEDY: It sounds very much --
COMMISSIONER BRADFORD: But you are now going to ask the Court to terminate its proceedings, while we defer (Laughter.)
COMMISSIONER KENNEDY:
It sounds very much like
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25 34 what we are discus-sing vis a vis the GESMO proceedings.
Further 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.
COMMISSIONER BRADFORD: As I understand it, _you would use the word defer (Laughter.)
intend to use it in a way that in fact it is as responsive to the President's wishes as we would use the word terminate.
COMMISSIONER KENNEDY: We are going to do nothing in respect to the GESMO matter until such time as the ongoing reassessments are completed and can be, in fact, factored into, the results thereof, can *be factored into the proceeding.
COMMISSIONER BRADFORD*:
All I am thinking of, it must be possible to write ~_letter.
If we are starting with that premise, whether th~ word is defer or terminate, the essential status is in line with the Eizenstadt letter.
It has *got to be possible to do a little work and come up with a*
document that says that.
MR. NELSON: Unless the word terminate'is essential to the document.
That is the scenic route.
COMMISSIONER BRADFORD: That is why we have to work around it.
MR. NELSON:
The next sentence, Commissioner, after the termination sentence of the~Eizenstadt letter, is a
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25 sentence in parenthesis which reads:
"Continuation of these activities could lead other natio~s to question the United States' commitment to deter commercial reprocessing in plutonium recycle."
35 One could conclude that, or draw the inference that the word termination was being used as distinguished fro~
continuing.
See the parenthesis?
COMMISSIONER BRADFORD: Which paragraph?
MR. NELSON:
Four paragraphs from the bottom, where there is a list of the specific things the President believes would be helpful.
COMMISSIONER BRADFORD:
Okay.
We have two different references.
MR. NELSON: I'm sorry. I'm looking at the one that was in the Federal Register.
COMMISSIONER BRADFORD:
Okay.
MR.SHAPAR:
Maybe we could work with words. You might start out with either.'.provisionally terminate or firmly postpone.
(Laughter.)
MR. GOSSICK: What about suspend indefinitely.
(Laughter. )
COMMISSIONER BRADFORD:
The only other thought that
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part of the same one -- is that the language a couple of 3
paragraphs above that, is the other place terminate appears.
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MR. NELSON: That's right.
And another argument can.be that Eizenstadt knows how to use the word defer, and so does President Carter when they want to.
This -letter shows that they used terminate instead of defer.
We are construing it like a statute.
MR. SHAPAR: I think the President said defer in his speech.
Gr-MR. NELSON: The President used the word defer, and he is quoted by Eizenstadt.
And then the next word appears, terminate,twice.
So assuming that these men carefully pick their language, then the President, through Mr. Eizenstadt, means terminate.
COMJ.I.USSIONER GILINSKY:
They are talking: __ about deferring commercial reprocessing, and terminating proceedings?
They are different matters.
COMMISSIONER GILINSKY:
It is the deferral of reprocessing, termination of GESMO.
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COM.MISSIONER GILINSKY: Yes.
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25 37 MR. NELSON: Now I am saying if one wants to read 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 it is over with, just ended.
COMMISSIONER GILINSKY:
This proceeding, yes.
MR. NELSON: And move on to the next problem.
COMMISSIONER GILINSKY: Right.
MR. SHAPAR: Of course you.do have the option of further asking whether or not it did make a difference.
I am not recommending it, but you have:the option.
It could be done informally.
CHAIRMAN HENDRIE: Let's see.
How sure are we that we might agree with -- that we might agree on a specific set of words that would deal with the after actions?
COMMISSIONER GILINSKY: It sounds like we were agreed.
COMMISSIONER KENNEDY: There was no better one we saw if history means anything.
(Inaudible.)
COMMISSIONER BRADFORD:
I even venture to say that I might be able to write an opening sentence or two we could agree with.
I wouldn't want to undertake to articulate it right now.
I want to*.. think about it a little bit.
Unless you want to arrive about a decision this af ternoo*n..
MR. MALLORY:
I think it would be possible for the
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25 38 Commissioners to reach a decision at least on a general course of action, *subject to further refinement, upon seeing language which articulated* those.
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 regard to the GESMO proceeding, A, we will defer/terminate one or the other to be selected.
But the thrust of the Commission's thought is that the now-recessed GESMO proceeding will indeed not sta~t again until further Commission action.
COMMISSIONER GILINSKY: Well, but then you are talking about the same proceeding~
CHAIRMAN HENDRIE: All right. I didn't mean to.
Until some -- that it or a related proceeding will.
start in response to a separate Commission ini:t.iative or another Commission initiative.
That means, for instance, that we know what we are going to do, although we may not know the precise word that will be used at an important place with regard to: the Supreme Court case in GESMO.
I think that reflects -- it seems to me that reflects what we --
COMMISSIONER GILINSKY: I suppose you can issue an order which says --
(Inaudible.)
CHAIRMAN HENDRIE: Well, let me -- do we agree on,
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25 38A it is defer/terminate?
COMMISSIONER KENNEDY:
There is a clear, unquestione commitment on the part of the Commission to reinstitute some kind of -- reinstitute a proceeding which will examine this and related issues which will arise out of reassessment which is ongoing.
Is that what we are saying?
COMMISSIONER GILINSKY: I would. _ say reexamine the matter.
CHAIRMAN HENDRIE:
I was going to take that up next, okay.
The thought I am.trying to get your view on now is that GESMO isn't going forward. That a resumption of GESMO, or alternately the commencement of some new proceeding, has some similarity, but not -- is a matter which will require Commission action at some time indhe future.
Okay?
Are we agreed?
If I can get a nod out of you, Peter, why I will declare it so ordered.
COMMISSIONER BRADFORD: Yes.
CHAIRMAN HENDRIE:
Okay. But there is more to come, so, okay.
If we agree that far, let us agree that that is a resolved item.
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25 39 Now,whether the word to be used is terminate or defer, and almost,not quite, but almost independent of that choice, it is the Commission ag*reement that now, we ought 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 proceeding should go forward, and what the appropriate scope should be.
MR. MALLORY: Perhaps no proceeding should go forward.
CHAIRMAN HENDRIE: Well, zero is always one of the alternatives.
And that, without making a.binding commitment as to the time,I think the language ought to suggest that we 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?
COMMISSIONER KENNEDY:
I think that we should be perhaps a little bit more precise in the sense that there is a little bit of indefiniteness, I think, About the ending
~--
dates of the current fuel cycle evaluation. _....:.I.t __ iJ,_pot clear that it is going to end when everyone hopes it will.
CHAIRMAN HENDRIE: The language I would use would be something like, the end of the current fuel cycle evaluation program, or the current phase of that program. That is, if that program develops into a 30-year ongoing rolling study, why
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25 40 my intent would be to give indication that we* think the time 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 years.
COMMISSIONER:KENNEDY; Or about.
COMMISSTONER GILINSKY:
Presuming we would be asking
.the President's views at that time, again.
CHAIRMAN HENDRIE: Well it is certainly possible.
- t-e might be willing to recognize it as a pbssibili ty, but for myself I would find it difficult to commit the Commission to ask the President's view, because that presumably* keys any Commission action to a favorable response from the President.
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 to follow the course that he recommends, but I just can't see how, when this is so closely tied to decisions being made that relate to foreign policy, that we would not ask the President.
MR. MALLORY:
Future events may indicate that we don't need to ask the Pesident 1 s views.. His views might, in two years, be so clearly stated that that is not necessarily -
COMMISSIONER KENNEDY: Clearly if it is appropriate 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
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25 41 point -- how can one know at this point what the circumstances at the time will be.
I, for one certainly would think, if it would be appropriate to ask for those views, _we certainly would* do so.
COMMISSIONER GILINSKY: I guess I can't imagine that we wouldn't.
Certainly we are not compelled to follow the course he suggests.
COMMISSIONER KENNEDY: We wouldn't ask
__ him if there
- wasn't a need to do so.
MR.SHAPAR:
He may have declared a position unequivocally without our having had to ask him.
COMMISSIONER GILINSKY:
That~s possible.
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 Commission to this additional procedural step which suggests a considerably less than independent regulatory commission.
COMMISSIONER GILINSKY: In fact I can't imagine that we would start a new proceeding without asking for public comment on the scope and a number.of other matters.
And at that point ask also. the views of the Executive Branch.
COMMISSIONER KENNEDY: You are probably quite right, and tl:B::-efore, why does one need to say that here?
That would be a normal course that the Commission --
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25 42 COt1MISSIONER GILINSKY: Well, it may want to say that we will ask fo.r public comment before starting a new proceeding.
COMM:ISSIONER KENNEDY: At this point?
COMM:ISSIONER GILINSKY:
Yes.
COMMISSIONER KENNEDY: I would not think so.
I mean as a normal course of the Commission, it would seem to me that we might want to say something to that effect at the time when we were issuing the call for public comments, explain what we had in mind.
We certainly, at that time, if we did not-intend to do so, we might want to say so.
Indeed, I would think if we did not intend to do so, we would want to say now.
But something which is the normal course of the Commission hardly needs continuing explanation.
MR. SHAPAR:
May I point out that your decision up until now has been.related exclusively to the GESMO proceeding.
The paper, of course, covered the interim licensing, covered how you wrap~pthe safeguards part of the thing, and covered the use of MOX fuel.
Your decision up to now hasn't addressed any of those. Maybe you don't want to, but I merely raise the point.
COMMISSIONER KENNEDY: I thought you did say somethin earlier on about the licensing program. In fact,they were clearly related and treated in the same way.
CHAIRMAN HENDRIE: I haven It yet asked for the opinion'
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25 43 for your opinion.
COMMISSIONER GILINSKY: Well, I think that those ptoceedings ought to be ended.
COMMISSIONER KENNEDY:
Te_rminated,.and not deferred?
COMMISSIONER GILINSKY:
Yes.
COMMISSIONER KENNEDY: I can't agree with that.
CHAIRMAN HENDRIE: What do you do with the Barnwell application?
You know for a proposal to construct where there is nothing in place, I think it is at least correct.
It is certainly an inarguable position.
You could say that if the proposer expects to come back and do something else, do a plant for reprocessing, it 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.
It is a little more difficult to argue that with regard to a couple of hundred million dollars worth of steel and concrete at Barnwell, South Carolina.
Are you proposing to say now that no matter what the national policy is, you will not take up again the consideration of the licensing under any circumstances in the Barnwell plant?
I am not.
MR. NELSON:
I am not sure of the legality of that.
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I.t is the deni.al with prejudice of a case that never got heard.
There is a pending one.
I'm sorry, there is a pending application.
MR. SHAPAR: There is a spe-cific application that may or may not get changed in the future.
MR.NELSON: The Commission should know that the --
COMMISSIONER KENNEDY: -.~What is the case -- what is the situation -- there are other applications of this kind.
What is the circumstance of Exxon, for example?
Isn't there an application before the House?
MR. NELSON: I think that is the one that I was thinking of.
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.
Barnwell has several hundred million dollars already invested in facilities.
COMMISSIONER GILINSKY:
(Inaudible. )
I was thinking of basically COMMISSIONER.KENNEDY: But I think we. should go back then to what counsel said.
MR. NELSON: I wanted to point out the words in the Eizenstadt letter about interim licensing:~ It:is denial of interim licensing the fuel cycle facilities.
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25 45 The word terminate is applied only to the GESMO proceeding at one place in the letter.
In the second place it says termination of Staff reviews and hearings relating to recycle activities.
And then the parenthetical sentence about continuati n.
And then the next sentence, denial of interim licensing of fuel cycle facilities.
COMMISSIONER KENNEDY: Our deferral proposition certainly is consistent with the language which you just read, which is termination of Staff reviews and hearings.
MR, NELSON:
Sure it is.
COMMISSIONER KENNEDY: Completely consistent with that.
MR. NELSON:
A denial can also mean a denial without prejudice in the law, without prejudice to the renewal of the application upon future events, refiling or anyihi.ng else.
COMMISSIONER GILINSKY: What is it you are proposing to MR. NELSON: Denial with prejudice means it is over with, don't ever darken this door again with *that application.
MR. SHAPAR:
But the predicate for a hold on interim licensing was supposed to have been.a rule, at least according to the prior discussion before this Commission.
COMMISSIONER BRADFORD: The GESMO rule?
MR. SHAPAR:
A rule on deferral, or whatever you
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25 want to call the word with respect to the processing of 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.
COMMISSIONER BRADFORD: None of these licenses, as I understand, can be granted inthe absence of the GESMO proceeding.
MR. SHAPAR: Well you have a court decision that
~recludes you from any interim licensing.
COMMISSIONER GILINSKY: Let me understand.
You would terminate reviews and hearings?
But in some sense defer what?
COMMISSIONER KENNEDY:
Not refuse the license.
CHAIRMAN HENDRIE: That I don't understand.
COMMISSIONER KENNEDY: I am just suggesting I would not turn~fue license back and say your license is denied, we will not consider your license.
MR. NELSON:
You would freeze it, in.the FCC terminology.
COMMISSIONER KENNEDY: We are not going to further consider your license at this time.
MR. 'NELSON: I know what you are saying.
COMMISSIONER KENNEDY:
Is that right?
CHAIRMAN HENDRIE: Defer.
COMMISSIONER GILINSKY:
But you use the word 46
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25 47 terminate as regards Staff action or hearings.-
CO~ISSIONER KENNEDY:
In using the word defer, we would say the Staff action and reviews in these matters will no longer continue.
There will be no Staff action and reviews.
MR. PEDERSEN: Terminate for the time being.
COMlUSSIONER GILINSKY: Sort of on the shelf.
COMMISSIONER KENNEDY: Yes.
COMMISSIONER GILINSKY: But you would write them a letter saying we would take no further action on this?
COMMISSIONER KENNEDY:
I guess I would let the licensing people --
COMMISSIONER GILINSKY: Right. But the letter would say no further action will be taken on this matter, what -- unti something MR. MALLORY: Until these reexaminations --
MR. NELSON:
In accordance with the accompanying rule.
MR. SHAPAR: Well, the key thing would be the formulation of the Federal Register notice that would embody that policy.
That is your key document, not the letter that would.le implementing.
COMMISSIONER GILINSKY: And then it would say what?
Because even if you use the word defer, it is not clear when you would start up, such restart formulation of such
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25 48 proceedings, because you are only going to take it up at some point.
And yoµ may or may not start the proceeding up again.
COMMISSIONER KENNEDY: If we started the proceeding up again, would we not still be under the injunction of the Court prohibiting interim licensing?
MR. SHAPAR: If I understand the Court's decision, we*
couldn't issue the license --
COMMISSIONER KENNEDY: That's right, until such time as the proceeding itself was concluded.
MR. MALLORY: That is not necessarily so.
If the Supreme Court -- if we told the Supreme Court that we are not considering interim licensing, the Court~s decision could be 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.
COMMISSIONER KENNEDY: But now really, it, having done that, a year elapses, and then we say, aha, well, no, you know they vacated that decision. Now we can go ahead and issue licenses.
I guess I would advise you not to do so.
I wouldn't.
MR.SHAPAR: Well as of now, at the present point in time, we can't issue an interim license under.:the pending decision, is that not correct?
MR. MALLORY: That is correct.
COMMISSIONER KENNEDY: And if we issued such a rule,
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25 49.
presumably even if we reinstituted a proceed.:j::_ng,_ given the history, the action in the courts up to now, and before the supreme Court now, we would not be able to issue interim licenses, absent an affirmative decision of the court allowing it.
Is that correct?
MR. SHAPAR: Well the court has declared the law at least as that court sees it. And I guess it would not be very wise on the part of the Commission to flaunt that declared law.
COMMISSIONER KENNEDY: So, for whatever time the action in the proceeding is deferred, plus whatever time it 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.
COMMISSIONER KENNEDY: Okay, that is my understanding No matter what.
MR. Iv.LALLORY: The court's decision ~ays that we can't go ahead with license reviews and hearings, and we could not issue a license --
MR. SHAPAR: The final document authorizing activity.
MR. MALLORY:
-- so that if the Commission were to reexamine the GESMO decision and reinstituted a new proceeding, ~t could undertake restart consideration of
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25 licensing.
CHAIRMAN HENDRIE: In parallel.
MR. MALLORY:
Yes.
MR. SHAPAR:
Yes.
50 COMMISSIONER BRADFORD: Were you suggesting _though that we m:Lght defer the GESMO proceeding, pursue the court appeal, and then if we were successful, go ahead with interim licensing?
again.
COMMISSIONER KENNEDY: Oh, no, no, not at all.
CHAIRMAN HENDRIE: I think maybe we ought to meet COMMISSIONER BRADFORD:
- Next week?
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 thing. You may not want to file all the documents immediately, but it tells you where we are going.
The question of the language which would accompany the base decision with-regard to looking again, -I would like to see some draft language, have it circulated to the Commission.
Let's see.
Are you as likely a producer of draft language as anybody, Rich?
MR. MALLORY:
I suppose so.
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25 51 Now have we arrived at the same position on interim licenses that we did on GESMO, or is that not clear?
CHAIRMAN HENDRIE: That is not clear to me,, and is 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 licenses or on individual licenses, not interim licenses is wider than the GESMO matter is at the moment?
CHAIRMAN HENDRIE:
Formally, yes. Because I haven't asked the Commission what its opinion is, and I was getting ready to,
.and it appearErl to me that some complexities began to arise because it suddenly occurred to me that while you might argµe_ that indeed if a generic consideration and we 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 form, and I would say it wouldn't, we would get arguing.
But where we might say all of that, why it suddenly occurs to me that the same sort of consideration with regard specifically to the Barnwell plant, just 'is not the same sort of thing. We will either consider the Barnwell license on the basis of what is there,.*or what can be reasonably added, or we won't consider it at all.
And it is not clear to me that saying at this point that there is an end to it -- there may be some difficulties.
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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.
52 It seems to me the Commission has -- that is pretty much what has been agreed to in terms for GESMO.
CHAIRMAN HENDRIE: But in terms of the individual licenses?
MR. MALLORY: Well, there hasn't been any formal agreement.
CHAIRMAN HENDRIE: I recognize that excruciatingly well.
What I am asking you is, are there certain legal difficulties and questions of fairness and so on in saying to the Barnwell people-, we terminate your pending --
COMMISSIONER KENNEDY: Let me just ask for your consideration, suppose that the government decided that for one reason or another it proposed to go ahead and do something with Barnwell, not for the purpose of developing a mixed oxide fuel system, but rather to demonstrate, for example, the feasibility of reprocessing and safeguards associated with, or, and, perhaps demonstration of parts of a waste disposal system.
Presumably you would have to get involved in licensing. I would hope that the language we would use in this decision of whatever it is, would not put us in an extremely
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25 53 difficult position should that circumstance arise later where we had perhaps foreclosed and had to reopen an issue on our own I' was hoping _we would leave that situation open enough.
MR. MALLORY:
The paper recommends that it be left open.
MR. SHAPAR: The actual recommendation in the paper is the deferral of GESMO and pending license applications.
COMMISSIONER KENNEDY:
Pending license applications.
MR.SHAPAR: Yes.
MR. MALLORY: There is a paragraph later in the paper on roughly the subject you mentioned that would recommend leaving it open.
CHAIRMAN HENDRIE: And is the.re a difficulty with termination?
MR. MALLORY: In our view we have the power to terminate by a rule, whether it is decided on generic grounds, as this one is, and that we don't need further proceedings in the individual license cases.
MR. NELSON:
It is carrying the freeze cases one step further.
We argue it is a logical extension of those cases.
CHAIRMAN HENDRIE: What would that rule say?
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
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25 54 of the studies going on, it would be detrimental to the President's policy to continue to the reviews as the President sees it, and it would be difficult for us to usefully go ahead 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.
MR. SHAPAR:
I think it would say, for the same reasons, that you are either deferring/terminating the GESMO proceeding~ you are deferring -- or whatever word you pick --
further processing qf these certain specified license applications defined by category inviting widescale use of plutonium.
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 Barnwell and say, we terminate your pending application. We are not deferring you, it is terminated, denied.
MR. SHAPAR: You would be denying it on the basis of a rule.
The rule would come first, and then, processing under the rule would come second, as I see it.
And they may demand a hearing.
CHAIRM.~N HENDRIE: And what recourse do the Barnwell people have then?
MR. SHAPAR: I suppose they have a right to a hearing
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 55 that we properly issued the rule under, something like that.
Th~y could ask for one, certainly.
MR. NELSON: Then we win.or lose in the Court of Appeals.
MR, SHAPAR: I would suggest that the legal situation with respect to terminating GESMO and the legal situation with respect to terminating individual applications is not necessarily precisely the same.
CHAIRMAN HENDRIE: Well that':s what seems to be coming home to me. And I found it a little bit difficult to sor that out.
I think it would be helpful, because the paper doesn't 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 proceedings appears to me to be something we could certainly do and it doesn't offer a difficulty.
COMMISSIONER GILINSKY: ~::You are stopping Staff __ actio,
hearings pending something new happening.
proceedings --
(Inaudible.)
New generic MR. SHAPAR: Well, if you go the deferral option, it is. easier to write in a sense that it can be deferred in both cases pending further order of the Commission with a promise to look at the situation, say*after the completion of the
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MR. NELSON:. Our work is much easier from the --
MR. SHAPAR: It is indeed, but that oughtn't to wag the dog here.
MR, NELSON; That is right, it shouldn't be.
Litigation considerations should govern. The worst that happens i.s you lose i.n the. Court of. Appeals.
JiR,.SH.A.PAR: No, litigation ought not to be governing, policy ought to be_ governing here.
CLaughte1:. )
Litigation ought to be considered.
CO.lxlMISSlONER BRADFORD: Litigation at its highest level needs to be a reflectiori of what tre law requires; and that probably ought to govern po_licy.
MR. SHAPAR:
If. the law is all that clear.
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25 COMMISSIONER BRADFORD: That is the point.
I think what you are saying is, if we have a choice of the choices that we are going to lose in court, then the litigation MR. SHAPAR: My point is that you have-choices.
MR, NELSON:
No, we are not saying that.
We are saying that we have a better product to litigate, if we are talk~ng about deferral of the licensing.
MR. SHAPAR: Yes.
MR. NELSON: It is harder-to talk about throwing those
mm 56 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 1 O purposes.
11 COMMISSIONER KENNEDY: I wonder if they had discussion 12 on approaching this one as they select those words.
13 14 15 16 17 18 19 20 21 22 23 have.
MR. NELSON: T~ey spent many months. They might COMMISS~ONER KENNEDY: Yes, I am sure they did.
Several of which I gather were --
CHAIRMAN HENDRIE: I would think it would be helpful to have the situation of the individual applications clarified by the legal staff.
I would judge on one * ~ther elem,ent of the proposi tio that the Commission would generally support the proposition of going forward and publishing the safeguards supplement as a technical report of the Commission staff.
24 COMMISSIONER KENNEDY: All parties, almost unanimously propose this, don't they?
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25 subject.
57 CHAIRMAN HENDRIE: Yes.
So that we may regard that, John, as a decision made.
And I think for the rest we will meet again on this COMMISSIONER KENNEDY: May I ask about the safe:.J:o_ck :gu d supplement?
What is its present status, and how much work is going to be required to complete it for release as a technical document.
MR. MYERS: It is.essentially complete.
It only needs some minor modification to change it from a part of GESMO to a technical report.
COMMISSIONER KENNEDY: So it is ready for issuance.
MR. GOSSICK: I might note, Mr. Chairman, that we have an informal, I believe it is, request from Congressman Moss' committee for
_a copy of the report.
MR.SHAPAR: The MOX, I guess was the last point.
COMMISSIONER KENNEDY: ~Mex fuel?
MR. SHAPAR: Yes.
This was unanimous, too, I think, the recommendation.
CHAIRMAN HENDRIE: It goes the same way as the GESMO, what to do with GESMO, right?
MR. SHAPAR: I *think there was a recommendation to continue to allow them the experimental fabrication with the use of mixed oxide.
CHAIRMAN HENDRIE: I see.
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COMMISSIONER KENNEDY: I believe the.President's 2
letter proposes t&at, does it. not?
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MR. SHAPAR: Yes.
CHAIRMAN HENDRIE: Let me _probe and see if there is any difficulty with that.
Okay?
COMMISSIONER KENNEDY:
(Nodding negativelj.),
MR. MALLORY: There is a matter of a small experimenta fuel fabrication pl~nts which the letter didn't really address.
CHAIRMAN HENDRIE: Well, if you are going to have except in small quantities for experimental purposes, then I would assume that in those facilities we would regard those fl-.-
uses falling there.
COMMISSIONER GILINSKY:
I want to think about just exactly what small means.
CHAIRMAN HENDRIE.:
Okay.
Peter?
COMMISSIONER.BRADFORD: Yes. I have the same feeling that in principle I think it is okay. But we are going to have another meeting anyway, maybe it will give us a somewhat"more concrete definition as to what that means.
CHAIRMAN HENDRIE: So, could we have a bit of amplification on the recommendation of the other facilities Ace-Federal Reporters, Inc.
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25 59 Okay.
Thank you very much.
(Wh_ereupon, at 3: 40 p.rn., the hearing in the above-entitled matter was terminated.