ML22230A060
| ML22230A060 | |
| Person / Time | |
|---|---|
| Issue date: | 01/16/1978 |
| From: | NRC/OCM |
| To: | |
| References | |
| Tran-M7801116 | |
| Download: ML22230A060 (82) | |
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RETURN TO SECRETARIAT RECORDS NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
PUBLIC MEE'rING POLICY SESSION 78-3 Place -
Washington, D. C.
Date -
Monday, 16 January 1978 ACE - FEDERAL REPORTERS, INC.
Official Reporters 444 North Capitol Street Washington, D.C. 20001 NATlONWIDE COVERAGE* DAILY Pages 1 -
79 Telephone:
(202 ) 347-3700
DISCLAIMER
- This is an unofficial transcript of a meeting of the United States Nuclear Regulatory Commission held on*.. January 16, 1978
- 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.
CR 6061 WHITLOCK All 2
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25 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION PUBLIC MEETING POLICY SESSION 78-3 Room 1130 1717 H. Street, N.W.
Washington, D.C.
Monday, 16 January 1978 The Commission met, pursuant to notice, at 9:48 a.m, CHAIRMAN JOSEPH HENDRIE, presiding; BEFORE:
COMMISSIONER JOSPHE HENDRIE, Chairman COMMISSIONER VICTOR GILINSKY COMMISSIONER RICHARD KENNEDY COMMISSIONER PETER ffiADFORD NRC STAFF ATTENDANCE:
Le-o Slaggie Lee Gossick James Murray Ken Pedersen Jerome Nelson Bill Bishop 1
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P R O C E E D I N G S (9:48 a.m.)
CHAIRMAN HENDRIE:
Gentlemen, let us get started.
Due to traffic problems this morning., there was a little problem with the Staff getting down, but we are all here now.
The item being discussed here is the finai.dispo-sition of parts of an NRDC petition for reconsideration that had been left open previously.
And the Commission had said that it would decide these matters at the time of the opening of the S-3 hearing, which I believe, occurs. this morning.
So it is at least high time to consider-the mat-ter.
I guess General Counsel's Office would be the I
appropriate place to start.
Leo, do you want to outline the proposition that at hand here?
MR. SLAGGIE:
Briefly reviewing the history of this whole thing, in May of 1977, this year, the Commission in a notice of reopened hearin<IJs on the S-3 fuel cycle matter t'
set out both the scope and the procedures for the'hearing.
With regard to the procedures, the Commission said there would be legislative procedures only, though the
- hearing board would entertain questions from participa,nts.
In this notice of hearing, the Commission also observed that NRDC _ had petitioned earlier.
That petition wa_s_
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filed in August of 1976 for more adjudicatory procedures in the fue 1 cycle rulemak+/-ng, some*thing of a -modified GESMO pro-_
ceeding.
The Commission turned down that petition for ad-ditional procedures in its notice of hearing.
They noted at that time that the Administrative Procedure Act requires only notice and comment, that the court in NRDC, really, NRC, had found that the original procedures in the S-3 rulemaking had proved adequate with regard to the impact on the front end of the fuel cycle.
And finally, the Commission noted that there was a need for prompt decision.
June 6, 1977, NRDC petitioned.for reconsideration of the Commission's decision, both with respect to the scope and with respect to the procedures.
The Office of General Counsel drafted a response to this petition and we noted that no new arguments had been presented by NRDC with regard to the procedural question.
So we drafted a response whereby the Commission would mer~ly have turned down this petition and continued on with the legisla-tive procedures that had been proposed.
The Commission discussed this on the 15th of September and at that time, appeared to have second thoughts about whether cross-examination would be appropriate.
The Commission did.. not make a decision then, but we sent a* letter
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dated September 26th to the Natural Resources Defense Council and circulated it to the participants, in-which the Commissi~n noted that it was specifically consideripg the possibility of entertaining at the close of-the hearing reqU.ests to per-mit cross-examination on specific factual issues.
This was a procedure that had been announced for GESMO but never actually used because the GESMO hearings did not get to that stage Well, the next development in this came late in December*with regard to the rulemaking on access to special nuclear materials, where the Commission did approve for that forthcoming rulemaking a procedure that would involve *cross-examination at the end of the hearing subject to a decision by the hearing board that such cross-examination was necessary in order to form a record adequate for a sound decision.
Based on that, the Office of General Counsel drafted our response, SECY 78-12, submitted to you on January 10, 1978.
It recommended that you should adopt a similar procedure for the S-3 rulemaking.
In brief, the arguments for cro"ss-examination as we see it in this case are that the court of appeals did criticize the procedures used by the NRC in the original S-3 rulemaking, and that the use of greater procedures, under more nearly adjudicatory procedures, is at least going in the direction that.. the cou:tt of appeals indicated.
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Though I would agree with the Staff that the court of appeals definitely did not Fequire, in-such terms, that such-procedures be used.
Nonetheless the issue remains open in S-3; this is a procedure_;.. a proceeding that was criticized, among other things, for inadequate use of procedures.
With regard to a prompt rule, we would note first of all that a valid rule is more important than a prompt rule if a choice has to be made.
But we don't feel that a choice has to be made here, because the delay that might be involved bv the cross-examination. p:-ocedures we are proposing, appear to be minimal.
We are, of course, not proposing an across the board cross-exam~nation throughout the enbire proceeding.
This is a tack-on.
I discussed this with the hearing board.
And they feel that it would be a matter of a few days addi-tional time at most, if such a procedure is adopted.
Moreover, it is not clear at this stage, if the Commission were to approve this cross-examination, as we pro-pose it, that cross-examination would actually happen.
The hearing board would have to decide based on submissions by participants that it had been demonstrated that cross-exam-ination of particular witnesses on particular factual issues was necessary for a sound.decision.
And it may well be that no such cross-examination-
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will prove to be necessary.
The hearing board has a program of asking questions, b~sed b_ot~ o_n _its OWI_1 ~uggestions and on suggested questions from the participants.
The entire hearing will consist of these quest~ons~
And at the close of that, cross-examination may not be necessary at all.
If it is, it is necessary.
And I think that is more or less where the General Counsel would leave it._
The NRDC petition also mentioned other procedures which they call for, and the Commission said it would make.a decision on.
Those were primarily discovery procedures which at this stage of the hearing are moot and --- effectively moot.
There has been nearly three months now, submission of written testimony.
And the submission of the written testimony plus the questions back and forth which the participants and the Staff have suggested and which the hearing board has reviewed, have in effect functioned as a form of discovery.
And we are not aware of any complaints that information has not been forthcoming, or that additional procedures are needed in the way of discovery.
So if the Cormnission wants to address this *point exrlicitly in responding to NRDC, I believe they can make a comment to that effect; that these procedures at this stage there is no need for any such adjudicatory discovery proced-ures.
In __ 13ayi:ag this, I am responding to the memorandum.
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25 circulated by Commissioner Bradford, which addressed this point.
7 Well, I haven't said anything about reprocessing yet, but if you would like, maybe we can go on the cross-examination issue and then get back to the reprocessing ques-tion after you have decided what you want to do on that.
COMMISSIONER GILINSKY:
Can I ask you, Leo; when does the 18-month period run out?
MR. SLAGGIE:
I am sorry?
COM..11.fISSIONER GI LINSKY:
When does the 18-month period run out, the validity of the interim rule?
MR. SLAGGIE:
I am sorry?
MR. NELSON:
When does the 18..;.month period run out?
September.
MR. SLAGGIE:
Oh, that runs out in September of this year.
The interim rule was promulgated for an 18-month period which runs out in September, but the Commission ex-plicitly stated that the rule can be extended for good cause.
CHAIRMAN HENDRIE:
Let's see; on the cross-examina-tion question --
COMMISSIONER KENNEDY:
There is one more thing I wonder if we could do --
CHAIRMAN HENDRIE:
Go ahead.
COMMISSIOWER KENNEDY:
-- as a wav of general
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~ackground.
. could you summari~e for us, Leo, the number of comments which we have received in the past, say, 72 or 96 hours0.00111 days <br />0.0267 hours <br />1.587302e-4 weeks <br />3.6528e-5 months <br /> on this subject, from the. public?
8 MR. SLAGGIE:
On the subject of cross-examination?
MR. NELSON:
On the subject of cross-examination, Commissioner.
COMMISSIONER KENNEDY:
Yes; on the subject of cross-examination.
MR.. SLAGGIE:*
The only summary I can give you off the top of my head as to what the Commission actually noted in its notice of reopened hearing with regard to the NRDC peeition in which we* said that some 60 comments have been re-ceived.
CHAIRI\\'1..AN HENDRIE:
No, but there have been a series of things corning in in the last MR. SLAGGIE:
On in the last CHAIRMAN HENDRIE:
-- couple of days.
I got two or three this morning.
MR. SLAGGIE:
In the last few days we have had three or four comments on this.
And generally, they -- the one I was just reading this morning, from Leboeuf, Lamb, Leiby and MacRae, makes the standard arguments which comes out as opposed to additional cross-examination.
COMMISSIONER KENNEDY:
Standard arguments being
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MR. SLAGGIE:
Just noting that -- well, would you like to summarize the a_rgume_Ilt~ they give?
COMMISSIONER KENNEDY:
Please.
MR. SLAGGIE.:
Okay.
They say that the procedures which were initially adopted were found adequate by the court, as the Commission noted before.
They say that it is not clear that the court and that was, by the way, adequate on the front end of the fuel cycle questions.
They say with regard to waste management and re-processing:
that:
"It is not clear that the court required cross-examination."
The letter goes on to state, quoting MacCormick, "Cross-examination, as MacCormick sees it, is primarily used to determine veracity of witnesses and is probably not appropriate in this type of proceeding."
I think those are their primary arguments.
I would respond to that by saying that cross-examination in a proceed~ng of this sort where there is difficult scientific questions that are under consideration, in my view, can be useful, particularly for intervenors who perhaps do not have access to the type of -- to the level of
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25 10 expertise which is available to the Staff.
In fact, nobody has access to that leye_l of _ex2,ert~se.
And cross-examination can reveal implicit assump-tions being made by technical experts.
It can also disclose other technical problems, which.in the view of the expert may not be significant, but perhaps in a broader view, may prove to be significant.
Now the use-of rebuttal testimony, which this letter suggests and which is a standard argument, is not al-Wqys helpful in this case to an intervening group that does not have its own base of experts that can prepare rebuttal with the same -- well, underlying technical support.
So that is in my view are ar<;n,m1ents for - cross-exam-ina tion that go against the arguments.raised against *it here.
Whether in fact this will prove to be necessary is something that will be determined later~
CHAIRMAN HENDRIE:
Okay.
There were other submissions-on the subject from OPE and from the Staff.
Let's hear from the Staff first.
Howard, are you going to summarize these?
MR. SHAPAR:
Yes.
I will be very brief.
This is a matter that was exhaustively considered by the C0:rnmission less than a year ago._
All the pros arid cons were laid out.
I haven't heard of
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25 11 anything new since that time.
The only argument made by the General Counsel to support a departure from the decision the Commission has already made is that the Commission decided to allow cross-examination at the discretion of the Board, iri-theiaccess rulemaking.
Of course, what is cl~ar under existing law is that in oral hearings on rulemaking you tailor the proc~dures to the individual situation.
So the Commission in effect in the last few years has experimented with a wide range of oral hearings for rulemaking, going from straight legislative type, to legislative type with requests for the hearing board to address certain questions to parties, to the full panopoly of adjudicatory proeeedings in GESMO, to the in-between situation
-- not in GESMO; in ECCS to the in-between situation in GESMO.
So the Commission decided this less than a year ago, looked at all the pros and cons, including the arguments you heard this morning, the pros and the cons and decided that therewould not ln this particular situation, this particular
.hearing, be cross-examination.
I just don **t know of any new data base that has been supplied.
This case is somewhat singular in the sense that the procedures proposed by the Commission originally did pass scrutiny by the court.
Obviously, it passed scrutiny because all the other
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/i) u.,,,.N' k,,_
parts of the S-3 numbers were upheld by the court.
The court said that insofar as the survey was concerned, the Commission
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- did an admirable job. Insofar as the procedures themselves are concerned, they passed with -- they passed scrut.iny by the court.
The Commission made it clear in its procedures that it specified for the reopened proceeding, that the original procedures were to be handled more sensitively than the reprocessing and waste disposal matters had been handled i~ the original S-3 proceeding.
So I guess the data base is the same.
The pros and the cons*.are the same.
The:i;e is nothing new.
I haven't identified, in.my own mind at least, any bases for changing the decision that was made less than a year ago by the Commission.
There** is one other point.
The interim rule is under attack, of course, in the courts.
If the interim rule should fail and there is not a final rule in *place, then the Commission would be confronted with a rather serious situa-tion.
And I think that is*all I have.
COMMISSIONER KENNEDY:
That situation being?
MR. SHAPAR:
That situation.being that the -- sine there is. not a rule in place, the incremental impact of the fuel cycle insofar as it adds to the -- has to be considered
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25 13 in licensing any additional nuclear power reactor.
If there is no rule in place, it has to-be battled-out on an individual ad hoc basis in each case.
COMMISSIONER GILINSKY:
Well, let's -see.
Are you making the point that if you leave off an adjudicatory, you could do it more quickly?
Is that your point?
MR. SHAPAR:
No; you won't have a rule in place to rely on.
Cm-1MISSIONER GILINSKY: So what is the reference t0 the interim rule possibly failing?
MR. SHAPAR:
Well, you have an interim rule in place now which is being used in your licensing proceedings.
COMMISSIONER GILINSKY:
Right~
CHAIRMAN HENDRIE:
Commissioner Gilink.sy is just asking the connection,and I assume it is that the assumption is that the addition of cross~exarnination as a part of the S-3 proceeing COMMISSIONER GILINSKY:
Exposes the interim rule for a longer period; is that what you are saying?
CHAIRMAN HENDRIE:
Would lengthen the correct proceeding.
I believe that is the assumption.
COMMISSIONER GILINSKY:
I mean, is that the point?
MR. SHAPAR:
Yes.
Yes.
COMMISSIONER KENNEDY:
In that connection, what is your estimate of *the length,the additional time that might- -
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25 14 be involved?
MR. SHAPAR:--
I-can.Lt give you-an estimate. I think experience has taught us that one cannot reach any ra-tional estimates on how-long cross-examination*will take.
And I wouldn't. *trus t anybody else's estimates, either.
COMMISSIONER KENNEDY:
Do you th.iink it would be longer rather than shorter?
MR. SHAPAR:
Oh, it would be obviously longer than the present process.
The only fair answer I can give in this kind of proceeding is you can't predict with any degree of confidence.
(Pause.)
CHAIRMAN HENDRIE:
Ken?
MR. PEDERSEN:
Yes; I think I can maybe even be briefer than Howard.
My view is -- I share ELD's concern about cross-examination.
My view is that cross-examination, or the scope or shape of any type of rulemaking hearing, should be deter-mined by the nature of that hearing and the needs of it.*
My own recommendation is that the Commission not make what would amount to something of an irrevocable delega-tion to the board at this time.
I think the consequences in terms of delay and the interim rule situation, as Howard noted, convinced me that perhaps the board ought to adopt a position somewhat similar
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25 15 to GESMO, or the Commission should adopt a situation somewhat similar to GESMO.
And -that.is r that when-that time approaches -
- perhaps with the recommendation of the board, that the Com-mission make the determination as to whether cross-examination is to be preferred.
At.that time I think the Commission will have a better sense of what the*possible consequences of cross-exam-ination are.
And then those costs and benefits can be weighed.
And I think you as the Commission.are in a unique position to weigh those concerns; delay against possible gains of cross-examination, and so on.
Now I think the board ought to have a voice in that in terms of making its f~eling known*to you.
But I see no*reason why you have to make that kind of irrevocable dele-gation at this time.
I think you can keep that decision to yourself.
COMMISSIONER GILINKSY:
Let's see.
Are you pro-posing a GESMO set of rules?
MR. PEDERSEN:
It is similar to GESMO.
I would recommend that you indicate that the possibility that cross-examination will be provided for, and that you, the Commission, will make that :decision at the appropriate time; with the recommendation of the board, if you choose to go that COMMISSIONER GILINSKY:
Well, let's see; to do that, we woul9: have to review the record, presumably,- and
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25 16 immerse ourselves in the whole case --
MR. PEDERSEN:
I think.the degree --
COMMISSIONER GILINSKY:
and the details of it.
MR. PEDERSEN:
I think the degree that you immerse yourself is somewhat flexible.
I will yield to my legal colleagues here in terms of how much they would feel you have to.
I think that the recommendation of the board shouid weigh heavy with you at that time.
But I think at that point the consequences of going ahead with cross-examination are going to be much clearer.
And I think that is a decision that you ought to take and prepared to take.
COMMISSIONER GI:LINSKY:
So you would leave open the possibility of --
MR. PEDERSEN:
Absolutely.
COMMISSIONER GILINSKY:
cross-examination?
MR. PEDERSEN:
Absolutely.
But I -- my recommen-dation would be that you not delegate it to the board in an irrevocable manner at this time; yes.
MR. SHAPAR:
I want to add one other point.
I think an important consideration here is the flexibility that the Commission, in my view, ought to have in connection with ruiemaking hearings.
I think in certain*occasions cross-examination is not only desirable,*it is almost essential to get an adequate*
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25 17 record.
I think the Commission ought to have available to it a wide range of rulemaking proceedings that it can in-stitute so that the procedure that is adopted r~ally fits the situation in front of the Commission.
The Commission did select, after, as I indicated_,::.
an exhaustive examination of pros and cons, a particular pro-cedure for this particular S-3 proceedings.
And all the argu-ments that have been mentioned at this table are the same as were considered before._ So again, I see no reason, I heard no new reasons advanced that were not originally considered by the Commission.
The fact that the Commission decided to use a different procedure for the access rule, in my mind, is no reason at all to apply that procedure to this case.
CHAIRMAN HENDRIE: In order to get the rest of the issues at least plaeed on table, there is the other side of the petition that has to be decision; is the question of elimination of reprocessing for waste management purposes, or uranium only recovery.
And could I have brief summaries from --
MR. SLAGGIE:
Sure.
CHAIID'T.AN HENDRIE:
I take it that you believe that the scope should not be changed.
MR. SLAGGIE:
That is correct.
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25 18 CHAIRMAN HENDRIE:
And that seems to be the general position.
Now, Peter --
COMMISSIONER GILINSKY:
Could we hear their argu-ments, or are we-going to deal with the first issue first?
CHAIRMAN HENDRIE:
Well, --
COMMISSIONER GILINSKY:
We could deal with-the procedural matters first.
CHAIRMAN HENDRIE:
I.think it *might be useful if you would like to hear the arguments, to he.ar a brief summary of the reasons for those conclusions, then, right down the line.
MR. SLAGGIE: The reasons for the OGE pesition on this? All right.
The Commission said they would reserve decision on this question as to whether to take reprocessing out of the scope of S-3.
- First of all, reprocessing is presently in the scope of S-3 only with respect to uranium cycling.
At the time the Commission noted its decision to reserve judgment rather than to go along with the NRDC suggestion that we nake reprocessing out, the Commission said that reprocessing --
well, that waste management involved questions of reprocessing entirely apart from any fuel cycle questions.
And. that remains the case.
I believe
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25 technologically --
. COMMISSI ONE_R GILINS_KY_:
Let's_ s~e; could you go over that again?
again?
again, Leo?
please?
MR. SLAGGIE:
-- the* question of --:- _
COMMISSIONER GILINSKY:
Could you go over that MR. SLAGGIE:
Yes?
COMMISSIONER GILINSKY:
Could you go over that MR. SLAGGIE:
I am sorry; can you speak louder, 19 COMMISSIONER GILINSKY:
Could you just repeat what you just said?
MR. SLAGGIE:
That waste management itself involves questions of reprocessing which have nothing to do with fuel recycling as such.
For example COMMISSIONER GILINSKY:
Well*, wait.
That only is the case if you.decide to reprocess?
MR. SLAGGIE:
Well, I am sorry.
MR. NELSON:
I think the Commissioner is saying that the principle of reprocessing is the threshhold here, that if you decide that reprocessing is a good thing for America, then you go forward and get into these questions, even though th~y may have nothing to do --
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25 20 MR. SLAGGIE:
I see.
MR. NELSON:
_wit.h recycling._
But if you don't accept the principle as a thresh-hold matter, you don't ever get-there.
MR. SLAGGIE:
That's true.
MR. NELSON:
Is that about it?
MR. SLAGGIE:
If you say reprocessing in itself is bad, of course, you wouldn't want COMMISSIONER GILINSKY:
It is not a question of bad or good.
MR. SLAGGIE:
Okay.
COMMISSIONER GILINSKY:
If you simply don't re-process, you don't have reprocessing waste management problems MR. SLAGGIE:
If you flatly agree that you are not going to reprocess, you do not reach the question.
On the other hand, your decision whether or not to reprocess may in some degree involve the impacts which*
waste management and waste disposal will involve __ if you do or do not reprocess.
COMMISSIONER GILINSKY:
Well, but CHAIRMAN HENDRIE:
Wait a minute.
This discussion is getting off on the wrong foot.
The word reprocessing is being used indiscriminately to apply to a series of possible situations.
It.. has here because of discussions recently in the
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25 21 GESMO matte~, come to be cohnected with the policy of repro-cessing spent reactor fuel_ i_n q_rd_er to re9over plutonium and uranium energy values therein contained.
COMMISSIONER GILINSKY:
I don't thi.nk that'-s the case.
CHAIRMAN HENDRIE: *Reprocessing -- if I:may go
. on COMMISSIONER GILINSKY:
You may.
CHAIRMAN HENDRIE:
Reprpcessing may also be used in a strictly waste man~gement operation to change the form of the spent fuel from uranium oxide pellets.in zircaloy rods into a form considered more suitable for long-term interment without anyseparation,'other than to get *things like the structure materials out and so on.
It may also be used, at least in principle, on a uranium only recovery.
So there are a series of possible reprocessing options, and only one of these is concerned with the plutonium recycle question recently -- which the President has said we ought not to do for the moment, to think very carefully about how tcr control those things, and the Commission has recently stopped the GESMO thing.
COMMISSIONER GILINSKY: But the question in GESMO was really the question of reprocessing.
It wasn't a question
- of running the _plutonium through the light water reactors.
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I mean, at the core of that proceeding was the question:
Do you or dQ you not separate out the plutonium and deal with the problems that that entails.
22 CHAIRMAN HENDRIE:
It seems to me the proceeding was entitled, **
11The-_use of Mixed ()xide Fuels iri Light Water Reactors."
COMMISSIONER GILINSKY:
It was, but the issues on 8
which it turned were the issues of safeguards and also the 9
international questions, which really stem from the separation 10 of the plutonium, its use in light water reactors.
11 (Pause.)
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25 CHAIRMAN HENDRIE:
That still doesn't --
COMMISSIONER GILINSKY:
That doesn't mean you can-not process for these other reasons that you have --
CHAIRMAN HENDRIE:
Just so.
COMMISSIONER GILINSKY: -:- pointed to, of course.
But I am merely saying that you may do that or you may not do that.
And you run into th~ problems if you choose to reprocess for waste management.
Then you have a series of issues you have to deal with.
If you don't, you don't have to deal with them.
CHAIRMAN HENDRIE:
You could also arranqe the reprocessing so you don't separate them; leave it in the mix.
MR. SLAGGIE':
With regard to this particular hearing, you will remember that three months of submission of-
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25 23 written testimony has gone on.
The hearing board informs me that a substantial amount of written testimony with regard to reprocessing for the purpose of changing the form of spent fuel for ultimate waste disposal has been submi_tted.
I believe the Staff has comments to make on the way reprocessing has been brought so far, into this question.
COMMISSIONER GILINSKY:
Let me ask you something, Leo:
Are we required by law to consider all the alternatives for waste management here?
What is the objective of this-hearing, of this S-3 hearing?
MR. SLAGGIE:
Well, the objective of this hearing is primarily to come up with a rule that the Commission can use in generic well, in individual licensing proceedings without having to relitigate the whole thing in each case, with regard to the impacts of the fuel cycle.
Now, I can't answer you directly with regard to the scope of the alternatives we have to considerf the NEPA question, of how many alternatives you have to consider is a somewhat foggy one.
COMMISSIONER GILINSKY:
Because I remember when this proceeding was started, and the question was raised about using the reprocessing case as a reference case.
The point was made that there was no need in the S-3 proceeding to consider all the alternatives; one merely had to provide the numbers for one reasonable reference case.
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25 24 MR. SLAGGIE:
Well --
COMMISSIONER GILINSKY.:
Now, it. seems. to me the reference case now is really the once-through case.
- Now, one could, of course, expand it to include the-reprocessing and it wquld certainly be an interesting investigation.
But the point has been made here about how import-ant it is to have a prompt rule, and an efficient proceeding and so.
So I am really wondering; what is the point of expanding this to cover this other activity?
I mean, we could expand it further to cover the front end.
We could do a number of other things.
MR. SLAGGIE:
If the Commission were absolutely certain of what procedures are going to be used for waste management and waste disposal over a period of several years, it would, in my view, be certainly adequate merely to lay out
\\c what the environmental impacts of those specific procedures will be.
But if there is uncertainty as to what procedures may be used, or a*possibility of change, then, of course, a rule that is limited would be just that; it would be limited and no longer useful had a change occurred.
MR. SHAPAR:
I think the answer to your question is there is no legal requirement that this reprocessing be in there.
It is a matter of convenience and efficiency in
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25 25 process, because so much work has already been done.
. But to answer you precisely, I know of no legal reason COMMISSIONER GILINSKY:
But wouldn't it --
MR. SHAPAR:
Remember; it is not even an environ-ment statement; it is a survey.
COMMISSIONER GILINSKY:
I understand.
Now, wouldn't it enormously reduce the amount of work that needs to be done and the questions that need to be examined, if one -- I see Bill Bishop shaking his head, so maybe he has something to say.
CHAIRMAN HENDRIE:
Go ahead, Bill.
Speak up.
MR. BISHOP:
The work has already been done.
So the direct answer to your question is no, that it doesn't re-duce the amount of work.
In fact, it may increase the amount of work.
First of all, the original rule was for both kind of fuel cycler and so the front end, everything but reprocess-ing and waste management portions of the fuel cycle covers both fuel cycles.
The work there* are thousands of pages of Staff reports, Staff testimony, testimony of others, questions and answers and followup questions, which are directed at both.
And all of that backup information would have to be unscrambled.
We have characterized it as unscrambling an-
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25 26 egg, in order to remove the intertwined reprocessing issues that already have been_ dealt w.i th,. in all of this body of information.
COMMISSIONER BRADFORD:
Bill, let me stop you there for a second.
Is the front end stated then in terms of alternatives; that is, certain values without reprocessing,-
certain values with,*as far as how much* uranium, for example, would get mined, whether or not you had reprocessing?
MR. BISHOP:
No.
The fuel cycles"dealt:with have to do with supporting of a uranium fuel reactor, that uranium coming from wherever; either from the mine or from a repro-cessing plant where the uranium is recovered.
COMMISSIONER BRADFORD:
But isn't -- doesn't the assumption of how much uranium you would mine vary with whe-*
ther or not you extracted it from the spent fuel?
~r. BISHO:
Yes, it does; 10 percent or so, I hear some of my colleagues saying.
But both fuel cycles are dealt with, and what the Staff did, then, was pick the larger environmental impact on any entry from the fuel cycle from which it obtained.
And so my final point was going to be that there would be -- it would do the rule no particular good to remove the reprocessing issues at this point because the rule with the small impacts already calculated, include both fuel cycles.
That is, it is the upper bound, independent of th
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25 27 two --
COMMISSIONER GILINS_KY: Now, i$n'_t it bound to lead to a longer hearing if you have to deal with both?
MR. BISHOP:
I tn~nk not, because extracting the information for-the once-through fuel cycle from the already intertwined information from both fuel cycles may actually be more difficult then proceeding in a straightforward manner to deal with the issues as they have already been laid out.
COMMISSIONER GILINSKY:
Well, but the reprocessing questions raise all sorts of issues, which presumably will be pursued by parties which are not, it seem*to me, essential to this rule, for the establishment of a reference case.
MR. BISHOP:
I can't argue with that.
Yes; there are more issues.
CHAIRMAN HENDRIE:
But if it takes you a year to unscramble the record as laid down to date and get started, then, on a more limited hearing --
COMMISSIONER GILINSKY:
I found it interesting --
CHAIRMAN HENDRIE:
It is a delay.
COMMISSIONER GILINSKY:
that in the review of the report produced by the state of California,which we will talk about in our next hour, the Staff criticized the state of California for getting into too many issues, and suggested that in view'of the President's program, they really should have stuck to the once-through case.
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25 This is presumably -- I don't know whether it came from your office ~or no.t -:..- but --
MR. BISHOP:
It did.
COMMISSIONER GILINSKY:
You say it did.
Why does that advice not apply here?
28 MR. BISHOP:
Partly because the major portion of the work on this proceeding was done prior to the President's announced policy.
done prior.
I In fact, almost all of the Staff work was COMMISSIONER BRADFORD:
Let me try to understand the unscrambling process.that you describe.
In order to put a value on any given activity in the S-3 table, you do have to.decide which of the individual possible occurrences has the highest impact.
So don't you have to unscramble, anyway?
MR. BISHOP:
The numbers are unscrambled already in the documentation; that is, the numbers that eventually make up the rule, in sum.
It is the information backing those which is often scrambled.
Example:
A repository.
There is a great deal of information about a repository for high level reprocessing waste.
There was. very little information prior to this particular proceeding about the disposal 6f spent fuel, or for that matter, recovered plutonium.
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25 29 And so we had to use the reprocessing of high level waste as a base case-to bui*ld -our *knowledge incrementally, for the disposal of plutonium or spent fuel.
That would have to be unscrambled somehow.
And there are other** instances; the summary of things that went to shallow land burial includes things from the entire fuel cycle with all the v~rious facilities: There-fore, the larger number in shallow land burial would be from the reprocessing fuel cycle.
That would have to be un-- * *,.,.
- scrambled.
MR. PEDERSEN:
Let me say I agree --
CHAIRMAN HENDRIE:
Let me just sar-that my central objection to reconsideration of the scope.in the S-3 is a strong feeling that if you cut it back to simply a throwaway fuel cycle;. you then lay down a rule which does not consider the environmental impacts of what may turn out to be the de-sirable waste handling option.
COMMISSIONER GILINSKY: Well, but before you can get into that, you are going to have to have extensive pro-ceeding which. *will examine all these questions, which can then be examined.
CHAIRMAN HENDRIE:
Why?
COMMISSIONER GILINSKY:
Because I don 1 t think you are going to have reprocessing without extensive proceedings about it.
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25 31 MR. BISHOP:
I think you may be comparing apples and camels, in that th._is _ru_le _is :i,ntendeg_ to lay out environ-mental impacts relevant to the licensing of ah-individual light water power generating reactor.
The waste:*_in-*the tanks at Hanford and Idaho and Savannah River came from reprocess-ing intended to recover plutonium for weapons, or recover high enriched uranium for nuclear submarine fuel.
CHAIRMAN HENDRIE:
Yes.
MR. BISHOP:
I don It think the environmental im-- ___,
pacts of the disposal of that waste is really within the bounds of this particular --
CHAIRMAN HENDRIE:
Okay.
We don 1 t MR. BISHOP~
In -=fact, the Staff has argued on several occasions that it is outside the bounds.
CHAIRMAN HENDRIE:
Okay.
(Pause.)
Now, what if we decide after looking at spent fuel interment for awhile that what we would really like to do is to knock the holes off -- knock the cladding off-the fuel and dissolve the pellets, and.drain off some of the structural materials, and then simply solidify the rest, all of it?
MR. BISHOP:
I think you could probably make the argument that the present proceeding encompassed that option-.-
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25 30 And I don't think one can prejudge the technology.
I don't think anybody can-say ~ere that we-shouldn't have reprocessing ever, or that we won't.
But I think that for the moment, the reference case is a once-through case and that is all we need to deal with, and we can set the other issues aside and deal with them in-another forum.
CHAIRMAN HENDRIE:
What is the -- what is the --
Bill, we are now looking at the WIPP'sproposal, and the pro-cessing that goes there.
Waste comes down from what do they do; mine the salt, the sludge out of the tanks and do what with it, calcine it, or what?
MR. BISHOP:
It will probably be a calcine.
The Department of Energy has not decidE;?d what waste form, but one of their --
CHAIRMAN HENDRIE:
Is it --
MR. BISHOP:
top options is to move.itoff-site to a repository.
And the one they want to look at for that potential they haven't made the decision firm yet is the one.:j..n New Mexico, theWIPP, Waste Isolation Pilot Plant.
CHAIRMAN HENDRIE:
Let me ask a question:
If you improve the reprocessing opt.:j..on, at least as it is scoped at present in S-3, in the S-3 proceeding, would that cover th environmental impacts of that set of actions, or what?
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25 32 It wasn't dealt with directly, as a particular option.
. The uranium_ recycle_ fuel cycle :t,s the reprocessing cycle within this proceeding now, with plutonium kept with the waste stream and carried on-to disposal.
(Pause.)
CHAIRMAN HENDRIE:
So the disposed plutonium is included as part of the waste?
MR. BISHOP:
Yes.
CHAIRMAN HENDRIE:
It. is.
MR. BISHOP:
In the one fuel cycle dealt with.
CHAIRMAN HENDRIE:
Yes.
MR. BISHOP:
And it is within the spent fuel, of course, in the other fuel cycle dealt with.
CHAIRMAN HENDRIE:
Yes.
(Pause.)
MR. BISHOP:
Nowhere in the fuel cycles that we have dealt with did plutonium show up as a usable product.
It always contained enough of the fission product to make further reprocessing necessary before it could be used. We called it "spiked" plutonium.
CHAIR.MAJ.~ HENDRIE:
Say that again, will you, Bill?
MR. BISHOP:
Nowhere in the fuel cycles that we have dealt with in this proceeding did plutonium show up as a useful product.
It always contained enough of the fission products to make it unattractive for immediate use.
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25 33 COMMISSIONER GILINSKY:
So you are talking about a modified k_ind of reprc,_cessing?_
MR. BISHOP:
- Yes; it is a foreshortened reprocess-ing.
Plutonium is separated but not cleaned up, and then solidified as a separate waste stream.
COMMISSIONER GILINSKY:
But what is the point of entangling these proceedings in just.fixing up a table for use in reactor licensing,as was so often explained to me here
- as a mere technicality, with all the problems of plutonium separation and recycle?
Well, even without recycle, pluto~
nium separation.
CHAIRMAN HENDRIE:
It doesn't have recycle.
COMMISSIONER GILINSKY:
It doesn't have recycle.
Plutonium separation~-
COMMISSIONER KENNEDY: -"My understanding is they didn't separate it.
COMMISSIONER GILINSKY:
Well, they didn't fully separate it to the point where --
MR. BISHOP:
Not fully separated; that's right.
COMMISSIONER GILINSKY:
But I mean, what is the point of doing all this, particularly when one:.talks about getting a prompt decision, and the need for not endangering the interim rule, and so on?
MR: BISHOP:
The point before was to cover all
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25 34 exigencies.
COMMISSIONER G_ILIN~KY:. No, I_ understand that, but we have made a decision since then.
I am not questioning your previous approach.
MR. BISHOP:
The work is done.
The record is on the table.
There will be some more record from the hearings.
There are li ter_ally thousands of pages of record.
It. is stacked about two feet deep now.
CO~.sMISSIONER GILINSKY:
Well, I mean; there is no reason why it shouldn't be publicly available, but is it necessary.-to, drag it into these proceedings?
MR. BISHOP:
I would say unless the hearing board comes up with some new issues COMMISSIONER GILINSKY:
The hearing is starting*
today, so I don' t-**know how long it will go on.
MR. PEDERSEN:
I think I agree with Commissioner Gilinsky; I think if you leave reprocessing in, you probably will lengthen the hearing somewhat.
I think balanced against that is this question of if you have looked at the full-range of reasonable options, al though it is *not always clear who speaks for the Admini-stration I think Jim Schlesinger gave a speech in Europe not long ago in which he said his personal opinion was that some reprocessing for waste management purposes would probabl be necessary in the future.
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25 35 CHAIRMAN HENDRIE:
When was that, Ken?
MR. PEDERSEN:
I __ dq_n I t _know.
How long ago was that; about four or five months ago?
MR. BISHOP:
Several months ago.
MR. PEDERSEN:
Yes, it was in NU:cleonics Week.
I could get you the citation on that.*
COMMISSIONER GILINSKY:
I thought you (inaudible) reinterpeted, but --
MR. PEDERSEN:
Well, this is -- like I say; it is hard to know which is the latest interpretatron.
But I think we have to ask ourselves whether our hearing would appear to be incomplete if we didn 1 t consider an option that looked like it may reasonably be where we come out at some point, reprocessing in a limited form, not on recycle but for waste management purposes.
It is certanly being seriously considered in the Executive Branch, I think.
COMMISSIONER GILINSKY:
N<J question that -the reference case now is a once~through case, not necessarily throwing the fuel away, but certainly for the moment, a once-through case.
MR.--PEDERSEN:
Yes.
COMMISSIONER KENNEDY:
But that case is in the proceeding, as I understand it.
COMMISSIONER GILINSKY:
Yes; right.
Now we are
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25 36 asking -- I am asking why we need to encumber the proceedings with any other cases.
MR. PEDERSEN:
Because I think you are balancing any encumberance against whether you will get a_more complete and more revealing hearing that will better prepare you to deal with an option that may very well come to pass. It may.
not, but certainly it is a reasonabl.e assumption that.it might.
One could make --
COMMISSIONER GILINSKY:
There are (inaudible) possibilities.
There is laser fusion.
We may do all kinds of things.
We may extract a great deal more U-235 out of the fuel.
We may --
MR. PEDERSEN:
I guess you are talking about judgment, Commissioner, as to whether this is a more likely option than some of these others.
CHAIRMAN HENDRIE: I think you have got a problem.
You are trying to license reactors for 30 or 40 years, and you want to us.e this table to show,if indeed it is justified to show it COMMISSIONER ~ILINSKY:
Right.
CHAIRMAN HENDRIE: ~- that*-the 'fuel cycle effects associated with that reactor are acceptable.
If you say --
you say the reference case is throwaway at the moment, and indeed it is, but it is a reference case pending reexamina-
-tion.
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25 37 And I have a strong suspicion myself that one of these modified reprocessing. schemes to get.a more suitable form for long-term storage is very likely to turn out to be the way that the waste handling will go.
Now, if that is the case, and as I say, I think there is a good likelihood, what you are d6ii.rl:g is construct-ing an environmental-impact to use in the licensing of a plant with the full knowledge that you aren't covering the
- waterfront.
COMMISSIONER GILINSKY:
Well, you are not CHAIRMAN HENDRIE:
But I think that is an unrea-sonable way to go.
COMMISSIONER GILINSKY:
Well, you are not covering the waterfront, anyway, because we don't know -- even though you may be right -- we don't know what that process is going to be like, if it is --
CHAIRMAN HENDRIE: Well, that's why the hearing COMMISSIONER GILINSKY:
(inaudiole) at all.
CHAIRMAN HENDRIE:
That's why the hearing has been set up and the scope has bee'n set up, in an attempt to look
.at -- to pick out a worst case_--
COMMISSIONER'-GILINSKY: But we are just speculating here --
CHAIRMAN HENDRIE:
at each stage.
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25 38 COMMISSIONER GILINSKY:
-- about technology in the future, which we just don't need to do.
And if, in fact, you turn out to be right, that question will be discussed thoroughly in a proceeding and we are not going to have any of these processes being con-ducted without their having been examined careful-ly in ex-tensive -proceeding.
And there will be ample time to fix up whatever table you want to put into S-3, or anything else.
CHAIRMAN HENDRIE:
But if we were starting from scratch at this point to prepare for this proceeding, I might agree with you.
But with the work already in hand and the hearing at this moment, so far as I know, already convened with all of this material in hand and the participants having been dealing with it for some months, and the very strong-likeli-hood, in my view at least, that some of these limited pro-cessing schemes will be considered the best ones for estab-lishing a long-term waste form, I simply find it _impossible to see merit in trying to unscramble the egg of this hearing now and take back out of it these modified processing schemes.
COMMISSIONER BRADFORD: When we went through this same sort of analytical question about the scope or, indeed, even the existence, of the GESMO proceeding, what we were doing was balancing that very similar set of consider~tions
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25 against the fact that we had a statement before us that the President felt tha~ continuation of that hearing would be harmful to his nonproliferation initiative.
To what extent is that concern -- Ken,* I guess I ought to,address this to you -- involved here?
That is, 39 we are not talking about plutonium recycle, I take it, as b~ing synonomous with reprocessing in the S-3 hearing~
In fact, we are talking about reprocessing*without plutonium recycle.
Now, to what extent is there a -- should we worry about an impact on proliferation policies, if we continue to use the word reprocessing to describe uranium recycle or something like that?
MR. PEDERSEN:
You mean you are talking about ---
are you just addressing it in terms of how semantically it is understood?
I am not sure I understand your question.
COMMISSIONER BRADFORD:
Well, yes.
What I am really after is whether -- in the GESMO situation, we had the same basic set of argume.nts; that is, you have a proceeding in motion, there is a lot work that has been done, a lot of time.
This may turn out, even though there be a three-year hiatus, to be the wave of the future and why stop?
Why not go ahead and do the work?
It is a very similar type of consideration to what is being said now about the different types of reprocessing, about the reprocessing element in this proceeding.
\\
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25 40 The determinated reason for stopping in the GESMO situation was the impact that +/-he President saw on his non-proliferation policy and the weight the Commission gave to that.
I think -- is there any similar factor here?
MR. PEDERSEN:
I think there is a difference in scale and scope.
I mean, GESMO foresaw wide-scale use of mixed oxide fuel; the plutonium economy, as it came to be called.
I think this is foreseen here, at least as the Executive Branch has discussed it, it would be a limited form of reprocessing that would be just for waste management pur-poses.
You wouldn't have the economy aspects of it. It would not be as widely distributed.
I would have to defer to people with better tech-nical background than I, but I don't think you would get the
-- necessarily the plutonium separated in as pure a form as would be necessary for -- if you were going to use it in reactors as fuel.
It is a different scope.
It is a different set of concerns, really, although there is some overlap, ob-viously.
But the GESMO saw a much broader and a much purer use, if you could use that term, of plutonium in the economy-;-
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25 41 whereas, this is, I think, you would use in*a much narrower context.
And I think that whereas as the President has, certainly for. the.time b_eing, indicated his opposition to the use of mixed oxide fuel, it is not clear to me that he has foregone the possibilit:y of using limited reprocessing as a.
waste management technique.
In fact, again, subject to any reinterpretation that I missed, Schlesinger had said --
COMMISSIONER GILINSKY:
Would you provide us with that reference, please?
MR. PEDERSEN: Yes, I would be glad to. It was in Nucleonics Week!... and it is always subject to have been a misquote or quoted out of context.
I am quite willing to acknowledge that, but at least he spoke in terms of this being --
COMMISSIONER GILINSKY:
What did he say?
MR. PEDERSEN:
My recollection was that he indi-cated that in his judgment, some form of reprocessing would probably be needed in the future as a way of managing waste.
He expressly said that he did not think that wide-scale use of mixed oxide fuel was COMMISSIONER GILINSKY:
Where was this said?
MR. PEDERSEN:
I believe it was in Europe, and I will -- Commissioner, I will have to get it for you. _
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25 42 COMMISSIONER BRADFORD:
I thought it was on tele-vision.
MR. PEDERSEN:
It may have been on television, too.
I will have to get it for you.* It was in Nu*c*le'oni*cs *week.
I should have gone back this morning, knowing this might come up, and gotten it, but I didn't.
But I will be happy to supply it for you.
But I might say, in addition to Schlesinger, others have viewed this as being an option.
COMMISSIONER BRADFORD:
It was in the same state-ment, I think, in which he said Gus Best was speaking for himself.
anyway.
It was just before --
_(Simul tanous discussion.)
MR. PEDERSEN:
It sounds like the proper context, But I think this is a serious effect -- alterna-tive, being given serious consideration.
And I don't think it necessarily means that if you can consider reprocessing as a fuel management technique or a waste management techn~-
ique, that one necessarily, then, says you are down a slip-pery slope toward wide-scale use of mixed oxides.
It seems to me ohe stop, one can define a thresh-hold here.
COMMISSIONER GILTNSKY:
I guess I am still aton-
+/-shed that people who are anxious to get this thing moving
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25 43 and get it over with and get the table in place, want to run GESMO in through tha hack door.. and expand_ the proceedings in that way.
MR. PEDERSEN:
Commissioner, I think it will leng-then, as I said in my initial response to you.
I think there will be some lengthening.
I don't know how long. -r:think people will try to introduce issues.
I think intervenors and other groups will introduce new questions.
I can't measur that, and I think that is a balancing judgment that only you, with (inaudible}.
CO~.iMISSIONER KENNEDY:
When you say -- I am con-fused now, because you say it will lengthen the proceeding, but the executive leg-al director and -- I believe the execu-tive legal director, and certainly Mr. Bishop, say to extract it from the proceeding now would have the effect of lengthen-ing it.
MR. PEDERSEN: Commissioner?
COMMISSIONER-KENNEDY:
So I would like to --
MR. PEDERSEN:
Commissioner?
COMMISSIONER KENNEDY:
-- figure out where we are here.
MR;_ PEDERSEN: Commission_er~ I --
COMMISSIONER KENNEDY:
Right now we have one and one and it comes out to zero.
MR. PEDERSEN:
Commissioner, I am guessing**
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25 44 somewhat.
I will be quite honest about that.
I think that if you **take the reproc-ess-ing.issue out and -eliminate any further questions about:'it, or cross-examination, should you decide to go that way on it, that it will shorten the proceed-ing somewhat.
I myself am a littl~ confused about how much work would really be involved in unscrambling.
COMMISSIONER KENNEDY:
Maybe we could go over that again, because it seems to be* sort of central to that question about whether it is going to lengthen or shorten the hearing.
MR. PEDERSEN:
It seems to me it ought to be some-what easier than it is presented, but I don't want to put my-self in the position of second guessing these people.
MR. BISHOP:
But it_ would be very difficult to expand on that without reassembling our team, in time for the hearing, so we could do that.
And looking at detail at the thousands of pages of records that exist, I have an intuitive feeling that before I would feel comfortable looking at one cycle only; that is, by removing the information from the record on the other cycle, in a sense, that it would take some considerable work just to feel comfortable with the one line of an argument.
- That is* not based on a detailed look at the record as it exists. It is possible, if the board and the Comrnissioh
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25 decided to look only at the numbers, that it would in fact shorten the proceedings. But again, that-depends on how*
comfortable the technical experts are in dealing with the lirili.ted issues.
45 MR. SHAPAR:
I don't think anybody can say right now whether it will lengthen it or shorten it.
To*unscrarnble would take time, and it is quite speculative as to whether or not having, after if it is left in, whether or not that will attract so many additional questions by virtue of its having been in., that it will aad time to it.
I don't think anybody knows.
So it may add and it may not add.
COMMISSIONER KENNEDY:
But questions have already been filed and followon questions have been filed.
We ought to have some idea.
Has it attracted that kind of attention up until now*in terms of questions that have been filed?
MR. BISHOP:
The-larger number of questions have come on the waste-disposal issues. -There have been a sub-stantial riurnber on reprocessing.
But the remaining issues,
_if they exist, are in the waste disposal, not in the re-
- /*.*.
px::oces sing, I would think, but that' s up to,, {the
- board to de-cide.
They will tell us when they want more information.
MR. PEDERSEN:
I also think in terms of the overal length, Cornmissioner,*it would depend on how much of this unscrambling could be done concurrently with going ahead.
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25 46 If everything had to stop and wait for the un-scrambling, that is one thi-ng.-
If it could be unscrambled as you are proceeding ahead, that is another.
MR. BISHOP:
One point on that:
the-first issues that we, at least on the Staff,have requested the board to deal with, are the reprocessing issues.
They would be the first ones in the hearing, if the board follows the schedule they have laid out, which they said they would.
COMMISSIONER BRADFORD: *When you talk about -- I guess I am less moved by sort of the efficiency argument, in part because I can't figure out which way it cuts7 it makes it easy not to be much moved by it than I am by the ques-tion that Vic raised a minute ago; in terms of bringing GESMO in through the back door.
What is the difference between what is proposed
-- well, again, when you talk about separating out simply the uranium and leaving the plutonium somewhat spiked, is that in fact GESMO through the back door?
And if not; why not?
MR. BISHOP:
The GESMO issue involved the use of plutonium in the reactor economy.
The fuel cycle dealt with in this proceeding takes that plutonium and throws it away in a repository, along with the fission products in a way that we think would make it quite difficult to use it even clan-destinely.
So it is certainly not GESMO through the back door-.
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25
~
47 And this is an issue that the Commission has dealt with in its discussions back at the time_o~ setting the scope of this hearing, was to keep the use of plutonium out of this particular proceeding.
We had three fuel cycles originally and we dropped one.
We dropped the GESMO fuel cycle.
(Pause.)
COMMISSIONER KENNEDY:
Leo, we have had some com-ment, additional comment from the public, over the past week on this question, also.
Could you please summarize that for us?
And particularly, would you let me know what the rela-tionship to this discussion is of the comments received from the New York State Department of Law speaking on its behalf and that of the state if Wisconsin?
MR. SLAGGIE:
With respect to the reprocessing issue, we have had several comments which urge the Commission not to take reprocessing out of the S-3 hearing.
These in-clude -- well, of course, the Staff's comments~ The Tennessee Valley Authority has noted that the statements -- the same arguments that we made before, the statements have been sub-mitted. The bulk of the effort of participants in the rule-making has already taken place.
Little effort would be saved by an alteration of the ground rules at this stage.
Hunton and Williams has also commented in a sim-ilar vein.
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25 48 COMMISSIONER KENNEDY:
On behalf of?
- MR. SLAGGIE:
Sir? -
COMMISSIDONER KENNEDY:
On behalf of:
MR. SLAGGIE-:
Hunton and Williams is representing, counsel for Baltimore Gas and Electric Company, et al; that is a group of *utilities, and similarly, Common Wealth Edison, Detroit Edison, Exxon, another group of utilities and*they say in similar regard, that particularly making the distinc-tion between uranium recycle and plutonium recycle.
The one comment in favor of taking reprocessing out is the NRDC.
We received a letter dated January 5th, and it makes here the interesting point; NRDC suggests that the revision of taking reprocessing out can be accomplished most effectively and expeditiously if the Staff is directed to prepare an analysis of the revisions necessary.
And they
- say, "No doubt, the necessary revision of the S-3 table.will take a considerable amount of time~ To allow the NRC Staff to complete_ this re-_
view, NRDC urges that the hearings be suspended.
11 So NRDC is saying that by taking reprocessing out, you will lengthen the proceedings rather than shorten them.
With regard to lengthening and shortening, I have asked the hearing board what their estimate as to when this proceeding will be over, assuming it goes as it is going now.-
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25 49 And I was told that by the end of February, at the l.atest, was their estimate for-when-the hearing would be over.
So we are not talking about something that is many, many months.
- coMMISSION~R KENNEDY:
May I interject there, be-fore*y;ou come to discuss the State of New York and Wisconsin matter, do I understand the NRDC's statement as you have just cited it, as being at least in part an answer to a question that was asked earlier; to what extent could this unscrambling of this egg be acco:rnplished while the egg is continuing to
.fry?
And the answer that NRDC says -- suggests is it isn't possible; that yiou would have to suspend the proceeding in order to accomplish this unscrambling?
That seems MR. SLAGGIE:
That is what NRDC is saying.
COMMISSIONER KENNEDY:
Well, that is at least one answer to that question.
Could you please go on, then, and discuss the state of New York and the state of Wisconsin's view as it relates to this --
MR. SLAGGIE:
Well, the state of New York COMMISSIONER KENNEDY:
-- recycling MR. SLAGGIK:
Are you talking about the letter we got on the economic--*--
COMMISSIONER KENNEDY:
Yes.
MR. SLAGGIE:
-- impact?
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25 50 COMMISSIONER KENNEDY:
Yes.
MR. SLAGGIE:
Well, I don't see that there is a clear relationship beteen.that question and what we are doing here now.
The state of New York and Wisconsin have asked the Commission to reconsider what the hearing board has deter-mined with regard to the economic impacts of fuel cycle ac-.
tivity.
And that is a somewhat complicated,question that we are not prepared to discuss*now.
That will have to be something we will. have to*do in a few days.
COMMISSIONER KENNEDY:
In other words MR. SLAGGIE:
But it is not directly related COMMISSIONER KENNEDY:
-- it transcends the ques-tion of waste management -- it -- their questions transcend the issue of waste management as it may affect the economic MR. SLAGGIE:
That's true; yes.
COMMISSIONER KENNEDY:
-- if it MR. SLAGGIE:
It is a much, really, a much broader question, but applied in this specific case.
MR. NELSON:
Mr. Chairman, comparison letters are rolling in.
Here is a telegram from the state of Wisconsin and the state of Ohio.
It is addressed to the Commissioners individually by name.
It says:
"Gentlemen:
"In light of the motions now before
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25 the Commission with regard to the proper scope of the T_able S-3. _proce_eding_, the state of Wisconsin and Ohio urge tpe Commission to order that the Table S-3 hearing be postponed until the Commission has ruled on the issue of scope."
51 It is signed by two, assistant attorneys general from the states of Wisconsin and Ohio.
CHAIRMAN HENDRIE:
Good.
Well, we are trying to rule on the question of scope, among others.
Okay.
Now~ we have exercised both the cross-examination question and the scope question.
And to get everything ploppe out, Peter, you were raising some questions about other pro-cedural aspects.
COMMISSIONER BRADFORD:
Yes.
CHAIRMAN HENDRIE:
I wonder if these have been --
COMMISSIONER BRADFORD:
Leo has for the most part characterized those fairly as issues whose time and come and We did commit ourselves to deal with them in the September letter,-and UI}fortunately didn't, most of them, dea with them in a way that would have had given the parties any guidance before.the hearings began.
There are, I think, still one or two survivors.
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25 52 that one could deal with.
One of them, I think, for example, is a motion for -- that the parties state their interest in terms of whether they intend to make to be active* parti-cipants or simply make a direct statement or some similar characterization.
But that seems to me to be the kind of thing one would do in the interest of an efficient hearing.
I don't know whether the hearing board would have done it, anyway, or not.
MR. SLAGGIE:
Well, yes; I think on the distinctio between active or full or non-full participants, that has already gone by the board -- no pun intended.
COMMISSIONER BRADFORD:
It might not have at 9:30; it may have by now.
(Laughter.)
MR. SLAGGIE:
There were some other questions, I think, concerning filing of final statements and other things.
But these are matters which are already within the discretion of the hearing board, to offer, one way or ano-ther.
The only additional procedures that the Commission would have had to act on, I believe, would have been dis-covery procedures; formal discovery, depositions, subpeonas, this kind of thing.
At this point, nobody has been asking for those.
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25 53 The procedures that have b~en.used for gathering information up to now appear to have -been --sa-tisf actory ~
COMMISSIONER BRADFORD:
In any case, as to the discovery, the discovery components, I think one can only say that they have been resolved by inaction.
And Leo may well be right, that in fact, the informal processes. have been satisfactory.
I suppose the question remains as to whether if---':* -
there *is some dissatisfaction, someone would want to take those types of proceedings during the hearings.. But that, I guess, could be the subject of another motion.
The two that seem to me still to be alive outside of the question of cross-examination were this business of having people opt at the start, either for a statement or full participation, and also having the people list the is-sues that they were going to raise and the positions that they contemplated taking on them.
Those seem to me to be useful things to get done early in a hearing.
It may we:11 be that the _*hearing board will do it, anyway.
MR. SLAGGIE:
The hearing board would have auth-ority to do that.
COMMISSIONER BRADFORD:
They certainly have the authority to do it, but it seems to me that that motion having been made to us, it is one that had I focused on it ea.rlier, --
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25 I would have routinely granted it.
- MR. SLAGGIE-:
Pa-rdon?
MR. NELSON:
He says he would have routinely granted it.
54 COMMISSIONER BRADFORD:
It is the kind of thing that were I a hearing board, I would routinely ha~e granted*
it.
Since the motion was made to the Commission, I guess I would have routinely voted to grant it in that context.
MR. SLAGGIE: Okay.
I think I agree with what you
- are saying.
CHAIRMAN HENDRIE: But in view of the march of circumstances, have those things sort have been COMMISSIONER BRADFORD:
Those two things, I guess I would still say, in what ever document we send down to the hearing board, we should indicate that those should be done as early as possible.
And if they have already been done; fine.
As to discovery, I think that one has to now be allowed as having been -- there is just no cont~xt.
COMMISSIONER KENNEDY:
Just as a-procedural ques-tion, were those things appropriate for petition to the Com-mission, or were they in the terms of, in terms of reference, of the hearing board, more appropriate to have been filed with the hearing board in the firs~ instance?
I am just asking this procedurally; whether we
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25 55 simply ought to refer those matters to the hearing board for appropriate action within its...:terms of reference, or should we actually instruct the hearing board in this regard?
I don't know.
MR. SLAGGIE:' This is with' the additional procedures?
COMMISSIONER BRADFORD:
Yes, I mean, I take it what the Commission did in setting up the S-3 matter was to invite the parties to continue: to keep in touch with it re-gi.rding procedures.
It diidn't set up any thresshold until the ruling in September, of things that should go straight to the hearing board versus things that should come to the Commission..
MR. S~GGIE: Well, my feeling here would be that we would -- the Commission should not instruct the hearing board as such, s.ince the discovery, the informal discovery that has been going on, has in fact COMMISSIONER BRADFORD:
Yes.
I think we are leaving out discovery now; aren 1 t we?
MR. SLAGGIE:
Oh, okay.
The only other procedures that remain, other than the cross-examination, art= the presenting direct and rebuttal testimony, suggesting questions to the hearing board -- which they are doing already, filing concluding statements, *which
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25 56 I believe the hearing board is allowing for.
If not, we are not near the conclusion y_etl c!_nd they haye _ plenty of time to do that.
I don't think that it would be necessary or par-ticularly appropriate for the Commission at this stage to direct the hearing board to do these things which they have either done or we have every reason to believe they will do.
COMMISSIONER KENNEDY:
It would be appropriate for the Commission simply to note to the hearing board that these matters were put before the Commission and were matters which the Commission felt were within the authority of the hearing board to decide and act upon. And thus, we are simply refer-ring them to it?
MR. SLAGGIE:
Well, we have drafted the OGE submission included a draft memorandum that would go out with regard to the reprocessing and cross-examination ques-tions.
We drafted an additional paragraph for that, in response to Commissioner Bradford's question, which would merely note that the Commission finds that the discovery, information gathering procedures have worked fine and we see no need for additional formal.procedures there, and that with regard to the other questions,the hearing board has the au-thority and we expect it will use it when the time comes.
So that certainly could be put in.
Does that --
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25 57 COMMISSIONER BRADFORD:
Well, I -- we are in a sort of unfortunate po_stu~e_ o:( -'.'"" _two or_ tl).ree of the requests_
seem reasonable to me, the ones that I just mentioned.
If they have already been granted by_ the hearing board, fine.
It is certainly within the discretion of the hearing board to grant them.
What would concern me would be if we referred them down to the hearing board now and the hearing board denied them.
That doesn't seem to me to be what I would want to have happen.
MR. SLAGGIE:
I am not clear.
You say, that there are specific procedures that have been denied already?
COMMISSIONER BRADFORD:
Well, I don't know.
I mean, I don't know what the disposition has been of those two items that I mentioned; the request for a clear statement of the status of the parties, and whatever the other one was.
positions.
MR. NELSON:
That they state their positions.
COMMISSIONER BRADFORD:
Yes, that they state their MR. SLAGGIE:
Okay.
COMMISSIONER BRADFOP~:
Now, it is fine to say tha that is within the discretion of the hearing board, but I wouldn't want the hearing board to deny it.
How do I achieve that?
MR. SLAGGIE:
Well, I think
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25 58 COMMISSIONER KENNEDY:
Then it seems no longer in the discretion of the? _hea_ri_11g _boa:r.-d.*
MR. SLAGGIE:
These proposals of the NRDC put forth --
COMMISSIONER BRADFORD:
It is within the power of the hearing board to grant it, I guess.
MR. SLAGGIE:. Yes.
The suggested procedures that you are quoting from, NRDC set.:>out on June 6th, which was well before the hearing board had been -- well, had been selected, well before the board had convened and set up its own procedures.
It was at that stage not at all clear how the hearing was going to go and whether it would be appropriate to have different levels of participation.
The way the hearing has developed, it has turned out that everybody is either.participating or they are not participating.
And I think a motion to make clear the status of participants would just not be relevant, the way this par-ticular proceeding has gone on.
Again, if we were back in June, *it might be worth -- the Commission might
- consider -- tell the hearing board:
Yes; set up different levels of participation. But in fact, they have not done that and nobody has requested that that be done.
And I believe the participants are pretty
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25 59 settled in.
COMMISSIONER BRADFORD:
Well, nobody has requested it be done except the motion w:.as* made last June.
The question is whether they -- what you ar~ saying is no one has renewed that motion?***.It has been pending before us all that MR. NELSON:
I think Leo is suggesting that may have been an attractive idea then, but that events have over-taken the idea.
Everyone has proceeded to participation at the same level MR. SLAGGIE:
Yes.
MR. NELSON: -- without creating two tiers.
MR. SLAGGIE:
Well, NRDC in a sense has -- I don't have that before me; I have it only here as an appendix NRDC has now suggested that they don't want to present oral
)
testmony.
In fact, they are trying to drop to a somewhat lowe level 0£ participation.
What the hearing board is going to, 1do on that, I cannot tell you.
And I think if perhaps something unusual happens there*, that might focus this is.sue that you are con-cerned about now.
But at the *moment, it is not really quite ripe for decision~
COMMISSIONER BRADFORD:
That issue isn't.
The*
other one is over-ripe.
MR. SLAGGIE:
Yes.
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25 60 CHAIRMAN HENDRIE:
I don't know where that brings you out on-some of these addi "E;ional ones,* Peter.
COMMISSIONER BRADFORD:
I have (inaudible).
I think it is an advantage, also, having at least-glanced at the paragraph that Leo had prepared.
As to the discovery issues, I think it is real-istic as to denial.
I think I would tend to state the rest slightly differently and just say that the Commission views those...:s.uggestions favorably and ass.umes that they are part of the process, anyway, or that things sought would be granted as soon as possible and let it-go at that.
It certainly wouldn't create any radical restruc-turing of the hearing at this point, to grant those two things as soon as reasonably possible, if they haven't been granted already.
CHAIRMAN HENDRIE:
If' they have already started with everybody as a participant on the same level --
COMMISSIONER BRADFORD:
Then that one is moot.
CHAIRMAN HENDRIE:
-- is that true?
COMMISSIONER BRADFORD: Then that one would be moot.
CHAIRMAN HENDRIE:
That one would then be moot.
COMMISSIONER BRADFORD:
I think.
I mean, if everybody has stated themselves to be a participant of --
there is only one class of participant and everyone has
,:i
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25 61 agreed to is, then that would be moot.
_ CO.MMI S SI ONER KENNED_Y : _
Does anyone know whether that was the case as a result of the prehearing conference?
MR. MURRAY:
The board issued an order, Com-missioner Kennedy, providing for identification of issuys
- by each participant.
And it listed all the participants.
And there is provision for later statements after the hear-ing (inaudible) in rules now.
COMMISSIONER KENNEDY: _ Then it would seem that the board's rules, it would seem that the question has been resolved.
MR. MURRAY:
Yes, sir.
MR. NELSON:
Jim, in your view, what of these questions is alive, the other procedural questions?
MR. MURRAY:
None.
MR. NELSON:
None?
MR. MURRAY:
None.
MR. NELSON: Any reasonable argument about that?
Could tpey disagree with you, reasonably?
COMMISSIONER BRADFORD:
Always.
(Laughter. )
MR. MURRAY:
There may be people in the room that disagree.
(Laughter. )
MR. NELSON:
Always with Jim, or always (inaudible-)
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25 start?
63 Well, I am facing this way.
Would you like to COMMISSIONER BRADFORD:
Which one?
Do you care, between scope*and cross-examination?
CHAIRMAN HENDRIE:
Have your choice.
COMMISSIONER BRADFORD:
All right.
I might even do. both, then I can be quiet.
On the scope, as I think I indicated before, what seems to me to be important is that this not become,in some subterranean way, a GESMO type hearing, or in any way be structured so as to permit others to suggest abroad that in fact the Commission was still continuing the GESMO type of considerations, only in another guise.
If it can be made -- not just seman~ically clear but substantively clear as well that that is not what is being done, then I guess what that involves is a very clear notion and perhaps using some word other reprocessing, to describe just what-is involved.
I guess I don't have any strong objection to it being something more than a once-through cycle considera-tion.
As to cross-examination, I think it is important that there be cross-examination in this proceeding.
As to the precise form of it -- let me just ask, Jerry; we have gotten a long way away from that now, but what did you have**
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25 62 COMMISSIONER BRADFORD:
Well, what about the one that it started hearing a-t -fi:r=-st-, -was list -issues to be raised and the positions they are going to take on the is-sues?
Has that also been dealt with?
MR. MURRAY:
It is explicitly provided in the rules that at the start of the hearing, each participant identify those issues which he thinks are the most signifi-cant for the hearing process.
The precise details that you have identified haven't been dealt with.
But I would certainly say that substantially, it is the same thing.
(Pause.)
COMMISSIONER BRADFORD:
Okay.
Clearly, then, if there is a real possibility that all of those points are now moot and then the paragraph is appropriate.
I can check very quickly on that.
Then I guess we can just leave it that it is too bad that we didn't deal with sooner.
But, there is little to be gained by our stirring it up again, now, if that turns out to be the case.
So why don't -- for purposes of this morning's discussion, let's leave them alone.
CHAIRMAN HENDRIE:
All right.
Let's go back to the scope and cross-examination questions and see what views are up and down the table.
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25 in mind in your memorandum, or Leo, as triggering cross-examination?
64 MR. NELSON:
Well, the words in the draft memoran-dum are as follows:
"The hearing board will entertain at the close of the hearing requests to permit cross-examination of particular witnesses on specific factual issues where the requester can demon-strate with particularity that this procedure is necessary to prepare a record adequate for a sound decision."
That seemed to us a rather modest proposal with a number of requirements built in to assure that it didn't run wild.
That is, the people have to say that they want to cross-examine somebody about something, who the somebody is, what the something is, and why it is necessary to do this, to prepare a record adequate for a sound decision.
We then propose to leave all of that in the sole discretion of the hearing board so.that they could have the vote up and down and there wouldn't be a lot of time con-suming interlocutory appeals, and trust in their ability to control it.
It seemed to us an important matter on some very important issues.
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25 65 COMMISSIONER BRADFORD:
Now, this is at the close of the hearing.
Eve~y~hing_ h~~ happened? _
MR. NELSON: The way we envision it; yes, every-thing is in.
COMMISSIONER BRADFORD:
Does the hearing format now provide for rebuttal?
is correct.
MR. SLAGGIE:
Provide for what?
COMMISSIONER BRADFORD:
Provide for rebuttal?
MR. NELSON:
Rebuttal.
MR. SLAGGIE:
Yes.
There would be rebuttal.
That MR. MURRAY:
Not in any formal sense.
MR. SLAGGIE:
Not in a formal sense, but MR. MURRAY:
But there is an opportunity to file a statement at the close of the hearing commenting on the record and bringing your views to the attention of the Com-mission which is the ultimate decider of the rulemaking.
So it is in the nature of argument_as well as factual rebuttal.
COMMISSIONER BRADFORD:
Why doesn't it make more sense to have your showing of cross-examination, your request for cross-examination, and in fact, any cross-examination that is allowed, before the rebuttal stage, and then perhaps again after?
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25 66 Doesn't -- if you were trying this c~se or in-volved in this proceed_ing_, wou,_ldn '_t what_y9u did on rebuttal be substantially influenced by what went on on cross-examina-tion?
MR. NELSON:
You could go either way, and you could loosen this up and place that decision in the discretion of.
the board.
COMMISSIONER KENNEDY:
With.what potential effect on length of time of the proceeding?
COMMISSIONER BRADFORD:
That one I would dare to hope would -- actually would have a shortening effect.
If the rebuttal were impacted by the cross-examina-tion; you would at least not go through a situation where you had testimony, rebuttal, then cross-examination, and probably I should think then, suggestions that further testimony was needed based on what was learned on cross-examination.
MR. NELSON:
Really, developing two facets of this question, Mr. Chairman; one, is whether to have cross-examination at all under any circumstances in-this proceed-ing.
The second is, if so, how to handle it.
COMMISSIONER BRADFORD:
Having decided the first one affi:rirnatively.
MR~ NELSON:
Well, I have no trouble with the first one, either.
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25 67 The second one, there are a number of (inaudible).
- COMMISSIONER BRADFORD:
Let me just add one other observation about the courts having said that we were ad-mirable on the first part of -- the front end of the fuel cycle in the S-3 case.
I gather we also now have or have had since August, before us a memorandum from the Staff ac- **
knowledging that there are some fairly substantial questions
- or errors in the first part of the S-3 table, And I don't know whether cross-exarnition or other procedural things would have cured those. But how ever ad-mirable the procedures may have been, the substance is ap-parently subject to considerable challenge.
And I am not sure that we should relax just be-cause the court has said it was procedurally admirable, given that it yielded results that are going to cause us some more headaches.
MR. SHAPAR:
It was recognized in the beginning that the table would have to be supplemented from time-to time, and the Commission reiterated that on occasion.
It is clear that these numbers wonit hold good forever and we will have to make changes, not" only now on the front end, but later as well, I suspect.
CHAIRMAN HENDRIE:
Let me poll in the other dir-ection.
COMMISSIONER KENNEDY:
Well, I am concerned that,**
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25 68 first, the proceeding go forward with all deliberate speed, as indeed,. the Commiss_i on cqmnti tted its elf_ to do some many months ago, shortly after the court called its attention to the need to do something about the table.
Considerable amount of time has elapsed and a vast amount of work has been done to that end.
So I think it is incumbent upon the Commission to assure that that proceeding is conducted, not only effectively, but as well, efficiently.
Thus, I believe that the scope should not be changed.
I agree with Commissioner Bradford that we do not wish, either semantically or otherwise, to leave the im-pression that this is bringing GESMO in through the back door.
Indeed, the Commission has already spoken to that point effectively, I think, as Mr. Bishop noted, when one aspect of the fuel cycle proposals that were being considered in the proceeding was eliminated, specifically, to that end.
Therefore, I think the record should make clear that that was done specifically because we had no intention of bringing GESMO in through the back door.
So as to scope, I believe it should remain as it now is *.
As to the cross-examination question, mindful of the fact that I believe that some lengthening of the proceed-ing will result by including it, I am concerned as well that--
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25 69 by not including it we may open ourselves to a subsequent challenge which would have ~he_ effect of _c~eating a new pro-ceeding.
I want to close any such doors that can be closed by the procedures that we follow in every case..
I would like to see proceedings-,litigated on one occasion and not repeatedly on the same questions:. or pro-cedural issues later.
Thus, I would agree with the proposal generally as outlined by Ken Pedersen, to~wit; at the end of the proceed-ing -- and I think the proposal~ really, as outlined by Jerry Nelson rather explicitly -- that only at the end of the proceeding the hearing bo~rd considers specific requests on specific questions by specific people, and that there will be no appeals to a decision by the hear.ing board in this regard.
It will have sole responsibility for determination of those questions which will be so considered.
CHAIRMAN HENDRIE:
That is the OGC proposal?
MR. NELSON:
That is exactly it.
CHAIRMAN HENDRIE:
You would not, however, take the part of Pedersen's suggestion that the Commission leave the question open and reexamine at the end?
COMMISSIONER KENNEDY:
I think the question should
-- we would be better off resolving the question now than simply postponing it, because we would simply have this dis-cussion all over again.
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25 70 CHAIRMAN HENDRIE:
All right*.
- Vic?
COMMISSIONER GILINSKY:
.On procedure, I take Jerry's recommendation.
And on substance, I would limit the scope to the once-through fuel cycle.
CHAIRMAN HENDRIE:
Okay.
I think we may have more trouble with the scope question than the procedural question.
On the procedural question, my own concern about going with the OGC proposal is one of appearing to move our-selves into a posture where every rulemaking has to have cross-examination in it.
So let me take this opportunity to make clear that I do not believe that is or should be the case.
COMMISSIONER KENNEDY:
May I second that.
CHAIRMAN HENDRIE:
And I guess, then, I could vote for the OGC proposal in the terms in which it is couched.
On the scope question, I am very strongly _opposed to changing the scope of the S-3 proceeding, because I think to do so, particularly at this point, may have a serious deleterious effect on our ability to move forward with a rational set of waste management plans.
And so I would not propose to change the scope
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25 71
. for that reason.
I think the_re is __ un_animi ty here_ that we do not propose to have the S-3 proceeding constitute a back door GESMO.
I have no hesitation in endorsing such-a uniformly popular proposition.
I do not thi-nk the proceeding as constituted. is in fact a back door GESMO.
And I think that without con-sideration of the processing for waste management purposes.
option, that it is a flawed rule and a flawed proceeding which we will have yery speedily, and likely enough, on further adequacy of the examination of the environmental im-*
pact, to redo again.
So~ am very strongly opposed to changing the scope.
Whatever -- if there is reasonable way to make the Commission's position yet more clear and determined that this is not a step forward into a plutonium recycle economy, why I would certainly endorse that.
Your discussion, Peter, emphasized strongly the
-- that it hinged a lot on to what extent this was or was not a recycle -- a step toward recycle.
And I wonder if any of the subsequent discussion and so on, has COMMISSIONER BRADFORD:
No; I think that is -- I think what I said was that -- I hope I said -- was long as that is made clear in what ever document comes out of-this
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25 session, then I don't think I would contemplate any change in the scope of the pr_oce~d_ing_.
My hestitation is that I really do want to see that document and to perhaps to develop a slightly better understanding myself as to just what is involved here.
72 But as I now understand it, I would vote to keep.
the scope the way it was, but to make very clear exactly what we do and don't have in mind by that, and assuming that a.document -- that reflects the reality of what1.the Staff is doing is consistent with the intention that we have all ex-pressed here, then I would vote for it.
CHAIRMAN HENDRIE:
Okay.
COMMISSIONER BRADFORD:
If I could just add one thought on cross-examinabion.
CHAIRMAN HENDRIE:
Yes.
COMMISSIONER BRADFORD:
The disadvantage of speak-ing first, 1ou. s.ome*times lea:v.e something out.
As I understand it, what we are doing here is taking the. issues, subject to_ rulemaking, including this_
one, out of proceedings in which full cross-examination would be allowed; that is, there is no question that if we were doing this case-by-case, there would be full cross-examina-tion on the S-3 type*issues.
We then promulgate through a rulernaking proceed-ing a standard which is plugged into all of these individual-
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25 73 proceedings.
And, yet, we do that without cross-examination and without the other pro_ce.dur_al safegua::r;ds that would be present if they were coming up in the individual proceedings.
We do that on the rationale that it -is better to have one proceeding, even if it is a somewhat difficult and cumbersome one, than it is to have the same difficult and cumbersome question reenacted over and over again in the individual proceedings around the country.
I think that is very sound, but I think you do have to recognize that the gain in efficiency that you are after: is really gain of moving from a lot of little proceed-ings into one big one, and that you may have to tolerate a certain amount of cumbersomeness in that one big proceeding for the payoff in the little ones later one.
And it is a mistake to over-expedite the one large proceeding, whether it is this rulemaking or another one in such a way as to mean that you are plugging into the results of the little hearings the standards arrived.at with substantially fewer safeguards than would have been the case if the matter had come up case-by-case.
I have gathered from what each of you have said that my hope for a somewhat earlier determination on cross-examination in this one is a lost cause.
But I would think that we would want in other cases to at least have it be known at the end of direct testimony and before rebuttal
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25 74 testimony whether or not there would be cross-examination.
If not, simply have it_ know_11 f_rom _the outset that there would be none.
CHAIRMAN HENDRIE: Okay.
Well, with the Commissioners noting the shades of opinion -- and it is quite obvious where the areas of
- agreement of the Commission lie -- could I suggest the follow-ing to you, then.
First, that with regard to the procedural matter, that we concur in the OGC's stated direction on cross-examina-tion, recognizing that it is not all that you would desire, Peter, and maybe more than I would desire.
I don't know.
But accept the OGC proposition on that.
With regard to the other procedural matters, I haven't seen the new paragraph, but if something like that, or a tailoring of it that you thought appropriate would avoid our laying down at this point on the board directions about things which we really should have instructed them a month ago, if we were going to do it, if the langugage can be general, then I think that's a reasop.able proposition.
COJY!MISSIONER BRADFORD:
Yes, that is one on which I think we can work something out, starting with that para-graph and working between our offices on it, without any need to meet again.
CHAIRMAN HENDRIE:
Yes; I would hope so.
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25 75 Finally, with regard.to the scope, I would propose that -- suggest to you- -that there is a consensus of the Commission -- not unanimity, but a consensus of the Commission
-- that the scope in this proceeding should remain as it is, but it would be useful for the Commission in its statement,,
saying so, to make clear once again precisely what we are not contemplating to happen here, and the limited sense in which reprocessing is considered here; i.e., for waste manage-ment purposes and you only (inaudible).
Okay.
Now, I get nods at the ends of the table.
I assume you shake your head, but I don't know.
Would that be okay with you two?
COMMISSIONER GILINSKY:
No; I am opposed to that.
CHAIRMAN HENDRIE:
Okay.
Three-one on the latter point.
I think we had a concurrence, unanimity on the three.
COMMISSIONER KENNEDY:
Okay.
COMMISSIONER BRADFORD:
Though, on the previous one, I will move my notation that I would grant cross-ex-amination but in a somewhat different framework.
CHAIRMAN HENDRIE:
Yes; duly note it, please.
Now, does the General Counsel's Office feel that they have a sufficient understanding of this -- of the Commission's position on these matters to draft an order?
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25 76 MR. NELSON:
With two questions:
- First, I take it-that it is Mr.. Gilinsky' s view that the proceeding should not be a back doorGESMO, that the Commission is unanimous about that proposition~* It is the even getting the subject in the door that you are opposed to?
COMMISSIONER GILINSKY:
Well, I think it will be pretty hard to avoid it becoming a back door GESMO.
But I am interested to see what you will write about it.
MR. NELSON:
Secondly -- nothing more than an attempt at limitation to explain what the case is not.
I would not see us embarking on a lengthy literary exercise about the scope of this and attempt to deal with all the nuances of the que~tions that may be in. the case.
COMMISSIONER GILINSKY:
Yes.
MR. NELSON: Secondly, Mr. Bradford's view about a different type of cross-examination:
Did you want that reflected in the memorandum?
COMMISSIONER BRADFORD:
No.
If I add anything on that, I will write it.
MR. NELSON:
As a separate matter?
COMMISSIONER BRADFORD:
Yes.
COMMISSIONER GILINSKY:
I will write something on this point.
MR. NELSON:
And we will circulate to the Com-mission a draft document in the form of a memorandum from
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25 77 the Secretary to the hearing board, which would then if ap-proved, be made public_.
Andi.twill contain the OCG position about cross-examination.
It will contain, beefed up a little bit, what is here now, about keeping this issue in the case with the delimiting language about what it is not supposed to be.
And I guess that is it.
CHAIRMAN HENDRIE:
All right.
I assume the order will -- would note additional comments coming?
MR. NELSON:
That may be separately filed; yes.
CHAIRMAN HENDRIE:
Yes.
Now, it may be that if you -- if your separate comments are simply a very brief statement, a sentence or two, why it might fit in the order, if it were in hand con-currently.
If not, why the order will simply note that you will have separate remarks.
COMMISSIONER GILINSKY:
Right.
COMMISSIONER KENNEDY:
Should these peparate notes be -- should the order be issued without, simply to indicate that they follow, or should they be incorporated with it?
MR. NELSON:
It could go either way.
COMMISSIONER KENNEDY:
Well, which MR. NELSON:
It depends where they are and when..
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25 78 they are.
_ COMMISSIONER KENNED_Y: _ Which do _we prefer?
MR. NELSON:
Well --
COMMISSIONER KENNEDY:
Just procedurally.
It doesn't matter to me.
CHAIRMAN HENDRIE: I would think that we might be-able to agree that the order, that an otherwise satisfactory set of language would not hold for in order to incorporate those writings.
So maybe it wo"uld be just better that (inaudible).
But I thought perhaps -- I wasn't sure -- but I thought that the nature of the comment might in one or the other case be, you know, just fairly simple and specific;:,
saying:
I would -- for myself, I would have not have done this, or something like that --
mind.
COMMISSIONER BRADFORD:
I have CHAIRMAN HENDRIE:
-- in which case COMMISSIONER BRADFORD:
-- nothing extensive in CHAIRMAN HENDRIE:
I thought that might be the case, in which case it might very well be at hand in time to go right into the order; just save you the need, then, for filing something else subsequently, was all I had in mind.
MR. NELSON:
Well, will --
(Simultaneous. )
MR. NELSON:
do our draft, get in touch with
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------------------------------=,----------,
the individual offices and see where we are going.
_ CHAIRMAN HENDRIE.:. _yes L MR. NELSON:
And then get the draft around to each Commissioner (inaudible) as soon as we can.
CHAIRMAN HENDRIE: Okay.
Fair enough.
COMMISSIONER GILINSKY:
Sounds fine.
CHAIRMAN HENDRIE:
Okay.
So order.
79 The Commission can Dave a minute and a half and we will then meet* immediately on the 11: 00 o'clock subject.
(Whereupon, at 11:25 a.m., the meeting on the above-entitled matter was adjourned.