ML22230A066
| ML22230A066 | |
| Person / Time | |
|---|---|
| Issue date: | 12/02/1977 |
| From: | NRC/OCM |
| To: | |
| References | |
| Tran-M771202 | |
| Download: ML22230A066 (50) | |
Text
- RETURN TO SECRETARIAT RECORDS NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
PUBLIC COMMISSION .MEETING DISCUSSION AND ANALYSIS OF PUBLIC COMMENTS ON GES.MO
- Place - Washington, D. C.
Date - Friday , 2 December 1977 Pages 1 - 47 Telephone :
(2 02 ) 347-3700 ACE - FEDERAL REPORTERS, INC.
- Official Reporters 444 North Capitol Street Washington, D.C. 20001 NATIONWIDE COVERAGE* DAILY
DISCLAIM-ER This is an unofficial transcript of a meeting of the Un1ted States Nuclear Regulatory Commission held on December 2, 1977 in the Commission's 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 arg~1ment contained herein, except as the Commission may authorize.
1 CR5729
.ZER/mm l UNITED STATES OF A..'r\IBRICA
. 2 NUCLEAR REGULATORY COMMISSION 3
- 4 5
PUBLIC COMMISSION 11EETING 6
7 DISCUSSION AND ANALYSIS OF 8
PUBLIC COMMENTS ON GESMO 9
10 Room 1130 11 1717 H Street, N.W.
Washington, D.C.
12 Friday, 2 December. 1977
- 13 14 15 The NRC Commissioners met, pursuant to notice, at 9: 30 ,a~:m.';. JOSEPH HENDRIE, Chairman, presiding:
PRESENT:
16 JOSEPH HENDRIE, CHAIR..111.AN
- tUCHARD KENNED~, COMJl.1:ISSIONER 17 VICTOR GILINSKY, COMMISSIONER PETER BRADFORD, COMMISSIONER 18 Howard Shapar 19 Homer Lowenberg ,
Sheldon Meyers 20 Lee V. Gossick Dennis K. Rathbun 21 Kenneth s. Pedersen Richard S. Mallory 22 Jerome Nelson John Hoyle 23
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25
2 P R O C E E D I N G S
.mm 2 CHAIRMAN HENDRIE: Commissioner Gilinsky will be
- 3 with us .1.almost immediately, and I don't propose to say anything 4 initially of such profound nature that he will miss anything.
5 We are meeting this morning on part of the 6 Commission's ongoing.deliberations on what to do with the 7 GESMO proceeding.
8 The items that I wquld like to have the 9 Commission hear and discuss this morning include first a 10 *Summary of the public comments in response to the Commission's 11 order of October 28th inviting public co:m..rnents on the 12 GESMO matter, particularly in light of the letter from
- 13 14 Mr. Eizenstadt of the President's office.
- And we will* have .s.uch discussion of those comments as the Commission feels .. appropriate *.
15 The other item, if time permits, which I would 16 like to go to in connection with the GESMO matter, is to .have 17 Mr. Nelson and Mr. Pedersen outline for us what they see as 18 the Commission's options with regard to this pr.oceeding.
19 I would look for clarifying questions and perhaps 20 I some limited discussions by the Commission. But I would expect 21
- 22 that the central discussion of the Commission on these options and its decision on what to do with the GESMO 23 proceeding would not be made ,this morning *. ~e have scheduled 24
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a meeting for next week. It is scheduled for 2:00 p.m. on 25
3
- l 2
Wednesday, the*7th of December, and I look toward that meeting for what I will call the major Commission discussion on the 3 options.
4 One other comment which I would like to*make*
- 5 before we ask Staff to summarize the public comments, is that 6 this is the first of the Commission public meetings for-which 7 a transcript is being made, said transcript to be placed in 8 the Public Document Room. It is to be placed there as an 9 unreviewed document. It is not approved by the Commission, 10 wili ;not be reviewed by the Commission or Commission Staff.
11 It is a best effort transcription of the meeting by a 12 professional reporter.
1*
- 13 14 People who have occasion to read the transcript should have in mind that questions, comments, lines of discus-sion by any or all of the Commissioners or Staff present may 15 16 or may not represent the point of view of that Commissioner 17 or Staff member.
18 These discussions go back and forth, I hope, in a 19 very brief fashion7 lines of question, areas of - discus.sion 20 may be taken up by a Commissioner from the standpoint of
.21 exercising and illuminating a point, and may not at all
- 22 represent the C6mmissioner 1 s*personal viewpoint.
I .find it necessary*to insert these remarks into 23 the record at the beginning of this process of transcribing 24 ce-Federcl Reporters, Inc.
open meetings. I have some limited experience with similar 25
4 mm transcription efforts with the Advisory Committee on Reactor 2 Safeguards, and on a few occasions have~found people inclined 3 to take a little too literally isolated statements or lines 4 of questioning o.:i:- discussion that individual members:: have 5 taken up.
6 If other Commissioners have remarks to add to 7 these, i t would **be a good time to add them. And if not, I would 8 welcome the Staff. Mr. Gossick?
9 MR. GOSSICK: Mr. Meyers would like to say a few 10 words introducing the comments on the comments received.
11 CHAIR"f\iAN HENDRIE: Please go ahead.
12 MR. MEYERS: As of the beginning of this week we
- 13 14 15 received approximately .37 comment letter~ almost equally split between environmental groups, industry, individuals.
- They fell into two general categories; those in favo 16 of continuing GESMO and agree to licensing procedures that
. ~***
evolve from it. And in support of that were the individuals, 17 utilities and industry groups~
18 The other category were those in favor of terminatin 19 the pnoceeding and the licensing process as well, with 20 variation on that being suspension. And most of the public-21 interest groups were in that category.
22 COMMISSIONER KENNEDY: Suspension or termination?
23
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25 MR. MEYERS: Termination. Some of them wavered about suspension, being more favorable -- not favorable, but variatio.
5 .
.nun 2 The major corrunent on suspension was by the GESMO Hearing Board.* There was a letter from them as well.
3 So those two categories pretty much represent the
- 4 5
range of recorrunendations by the outside world. And as you may recall, they were pretty much in the same category as 6 the original paper that we had proposed.
7 The options that evolved from further study are 8 variations on those two things.
9 Now we can, at this stage of the game, run down '..in 10 some detail, the various organizations and what they said, ll depending upon their own particular desires.
CHAIR'1/2AN HENDRIE: I think it would be useful if 12
- 13 14 15 you elaborated a little bit with regard to sort of the way the groups -- the thrust of the comments by groups along the lines of the Appendix to your Summary Paper.
I think in fact, that people have commented a good 16 deal on GESMO. This latest round of comments simply allowed 17 people one final chance to say some further things after the 18 letter from Mr. Eizenstadt and the Commission's decision to 19 move ahead and make its decision on disposition of the 20 proceeding. So I am not surprised that there wasn 1 t*broader 21 commentary or that i t didn 1 t*range further afield than it seems 22 to have. But I think it would be useful to note some of the 23
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25 shades of opinions in these groups of public comments.
MR. MEYERS: Okay.
6 I would like, in order to do that, as you know, 2 there were seven categories that we broke down, and we can very 3 quickly talk about the *various individuals, the industry, the 4 utility group, et cetera, rather than talk about the individual 5 37 comment letters.
6 CHAIRMAN HENDRIE: Just so.
7 MR. LOWENBERG: Fine.
To a man, the individual commentors all were in 8
favor of continuing the proceedings 9
COMMISSIONER KENNEDY: How many of them were there?
10 MR. LOWENBERG: In total there were a dozen, and we 11 have_* j.ust gotten another one in the last day or so, so there 12
- 13 14 15 is actually 12 or 13 -- there are still some letters dribbling
\
in, incidentally, even -at this late date, so the count may change one or two. But i t is around a dozen individual comments.
16 And they all were, I wouldn't use the word 17 I
unanimous, but they all qad the same position,even though they might have arrived at it by different routes, so::that 19 they all favored continuation in some form. Not all of them 20 addressed the logic or exactly how you would continue, but*
21 they all felt that was the right position.
22 With regard to the utilities, there were just 23
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25 two utilities that responded individually. There were, however, a number that responded in groups, and the groups
7 represented scores of utilities in combined form. So in total
- mm 2 we heard from several dozen utili tie-s, if you will.
3 And their position varied slightly. In the past,
- 4 5
generally the utilities' position has been entirely in favor of.:continuation. The GESMO Utility Group and the Consolidated 6 Utility Group both well specifically the GESMO Utility 7 Group would really prefer continuation, but they softened 8 their position in that they found that suspension would.be 9 or deferral would be more satisfactory than complete terminatio .
10 And the Consolidated Utility Group ;_favored a suspen-11 sion in their recent filing, which was one of the late ones 12 that came in.
- -13 14 15 COMMISSIONER KENNEDY:
group, the Consolidated PtilitY-?
How many in the second MR. LOWENBERG:
- I don't remember the specific number of utilities represented by that'group, but i t is I 16 guess about a dozen or more. I can get that~for you.
17 The nuclear industry as we characterize it, 18 includes people like the fuel cycle organizations and Atomic 19 Industrial Forum, and EEI.
20 And here again the position has changed somewhat
.-21 from what it was six to eight months.ago and that is in general 22 the nuclear industry would favor continuation, but here again 23
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25 they tend to find suspension acceptable, and certainly preferable to termination.
8
.mm 2 Specifically AGNS softened their position and will acc.ept currently suspension or find it: acceptable.
3 And EEI also fits in that category of finding
- *4 5
suspension acceptable.
MR. SHAPAR: Deferral .b.n both the GESMO proceedings 6 and the individual interim licensing applications?
7 MR. LOWENBERG: Yes.
8 COMMISSIONER GILINSKY: What is the difference 9 here between suspension and termination?
10 MR. :SHAPAR: None.
11 MR. LOWENBERG: Well, Howard, I beg to differ with 12 you. I think Jerry Nelson might want to address that.
- 13 14 15 CHAIRMAN HENDRIE:
points of view.
MR. LOWENBERG:
I think that is one of those I think there is a difference between suspension and termination.
16 MR. MEYERS: Let me try to answer that.
17 The President has talked about -an interim.decision 18 in terms of reprocessing and recycling. He hasn't made a final 1.9 determination.
20 Our suspending would be tied to a final decision.
21 Terminate now, that's it, i t is over with. Suspension connotes 22 the fact that the proceedings. are still amenable to being 23
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25 opened at some point in the future.
I think what Howard was getting at, -if you have
9 mm a suspension for two, three or four years, i t is* tantamount 2 to termination.
3 COMMISSIONER-GILINSKY: You are probably not going
- 4 5
to keep the same Board. You are going to have to review the scope of the proceedings, and you are going to have to 6 admit new parties that want to enter the proceedings.
7 MR.SHA.PAR: That's right.
8 I meant there is no distinction between suspension 9 and deferral. There is a difference between suspension and 10 termination.
11 The main difference between the two is in connection 12 with suspension.: or deferral, there is sort of a commitment to
- 13 14 15 reexamine, which is not implied in a termination.
COMMISSIONER KENNEDY: What is the effect of suspension on the one hand, and termination on the other, on the existing record?
16 If one terminates and then at some future time 17 were to institute a new proceeding, of what value would the 18 existing record be?
19 MR. SHAPAR: I would assume that someone could 20 introduce., or seek to introduce the prior record into the 21 new proceeding.
22 COMMISSIONER KENNEDY: He would have to seek to 23
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25 introduce it,and that could be contested .
MR. SHAPAR: That could be contested, depending on
10 l what ground rules the Corrunission set down for the conduct
- nun 2 of the new proceeding.
3 COMMISSIONER KENNEDY: If the matter were suspended,
- *4 5
the record would simply be extant,when the proceeding were reopened** the record would. continue.
6 MR. Sli'APAR: Right..
7 COMMISSIONER KENNEDY: And be supplemented, or 8 whatever.
9 MR.SHAPAR: I must remind you that it would be a 10 rather stale record.
11 COMMISSIONER KENNEDY: Of course, I understand that.
12 But there would be no quest,ion about its admissibility'?
- 13 14 15 MR. SHAPAR: Right.
COMMISSIONER BRADFORD: Would there be a question about its admissibility either if the Commission chose to admit it, if the Board chose to admit it, i t would then 16 be admitted.
17 MR. SHAPAR: Well, we are not subject to formal 18 adjudicatory rules so any ground rules the Commission wants 19 to set down are.okay.
20 But if you terminate a proceeding, unless the 21 Commiss_ion says something different, and you start
- a new 22 proceeding, then the Corrunission is going to have to say 23
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25 something to get the old record into the new proceeding.
But the Commission has complete flexibility as to
11 l how it wants to handle i t .
- mm 2 COMMISSIONER BRADFORD: That's all I meant.
Even in the case of termination, there ls no serious*,
3 .
4 question about the Commission's powers to admit the old record?
5 MR. SHAPAR: Not in this kind of a proceeding.
6 MR. MEYERS: As a practical matter, the technical 7 information would pretty much remain valid. There would be 8 an obligation in either case to review and bring up to date 9 whatever happened in the intervening time.
10 CHAIRMAN HENDRIE: Let's see, maybe a natural 11 continuation of this consideration of options and possibilities wo.uld follow from hearing the options *:.:-. paper a bit later.
12
- 13 14 15 COMMISSIONER KENNEDY:
the comments now.?
CHAIRMAN HENDRIE: Yes.
You are stilli::.talking about
(
MR. MEYERS: One other thing, there was a common 16 thread that went through the people who were in favor of 17 continuing GESMO. They sort of related it to the ongoing 18 activities in INFCE and NASAP, that this would be a natural 19
-support for those two activities. In other words ,. by con~~-=----.
20 tinuing the proceedings,. information would come out of this 21
- 22 that would be useful to INFCE and NASAP.
MR. LOWENBERG: The response from states -- by 23 the way, I would like to say that with Howard clearing up 24
- \ce-Federcl Reporters, Inc. his discussion on termination and suspension, I agree exactly 25
12 mm 1 with him now, whereas before I didn't.
2 (Laughter.)
3 The response from states was split right down the 4 middle. Several states were in favor of termination and 5 several were quite opposed to that and look.for a continuation.
6 COMMISSIONER KENNEDY: Is there some pattern, .or 7 some underlying reason which leads some to believe one and 8 some to believe the other?
9 MR. LOWENBERG: Well New York and Wisconsin responded 10 in the letter from New York, and actually I guess their positio 11 is stated by New York and they favored termination. So I*
12 think that has been their position right along, they haven't
- 13 14 15 changed their position
- Several of the other states that responded, however, felt that they needed to have a
- complete::*record, and the only way they would have :--:aa *.complete ventilation of the matter 16 and the only way they would have i t would be by continuing 17 the effort to completely see all sides of the position and hear 18 all aspects of it.
19 So that is basically the way they came down.
20 The public interest groups, there were half a dozen 21 of those that responded, and in general the ones that are
- 22 23 usually associated with environmental movement were**.all in
- 24 Ace-Federal Reporters, Inc.
25 favor of termination .
However, there were several groups which we classed
13 as publi.c interest groups that_ are in the vein of legalistic 2 more than environmental. And they both came down on the issue 3 in the direction of continuing, again with the idea of 4 providing a complete record so that everyone can see the 5 COMMISSIONER KENNEDY: You are not suggesting that 6 legal groups are not public interest groups?
7 MR. LOWENBERG: I am just reporting they way they 8 came down.
9 COMMISSIONER KENNEDY: I just wanted to clarify 10 that for our colleagues in the legal fraternity.
11 (Laughter.)
12 MR.* LOWENBERG: Ciassed them all as public interesti"
- 13 14 15 groups.
least.
So I am not suggesting that they are not in the (Laughter.)
I'm just saying that there was that apparent 16 split, whereas NRDC and the Sierra Club and some of the 17 others which are more popularly---T.ffi.kect** with the environmental 18 movements -- I say popularly in quotations -- however, not 19 saying that they are illegal or anything like that.-- came 20 down in the direction of termination, whereas the groups that
.21 are generally associated with legal viewpoints came down in 22 the dirlection of continuing.
23
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25.
And the last major input -- and I say major because I think the GESMO Hearing Board made avery careful analysis
14 mm and I think it was very helpful to the record, and obviously 2 they have an unusual vantage point having been in the 3 position of hearing the various sides and viewpoints and
- 4 5
reading all the testimo_ny, participating in the cross-examining of the Staff, and also in reviewing the questions that were proposed on the testimony of all parties, they did a very 6
7 thorough and careful and good analysis' and they came down ___ -:-..,*
8 in:the direction of deferral or suspension, whichever way you 9
wi:sh to term it.
10 And their position was that basically Congress has 11 not seen fit to overturn the President's position and they felt that suspension was the proper course of action with all 12
- 13 14 15 interests involved and that continuation, even to so-call clear up the record would undoubtedly be less than a completely efficient process.
COMMISSIONER KENNEDY: 1vha t do they mean by that?
16 MR. LOWENBERG: What I think they mean there, it 17 is going to be difficult to attract the enthusiasm of all 18 the parties to.get a real thorough record from this point on 19 out, number one.
20 Number two, that undoubtedly --
21 COM..~ISSIONER KENNEDY: Could I stop there?
- 22 23 I noticed that .argument. I didn't understand it,
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25 because if all the utilities in the industry groups, as you suggest, favor ~ontinuing the process; does this suggest they
15 mm might favor continuing it but wouldn't be very enthusiastic 2 about participating in it?
3 I don't understand it. If they all wanted to 4 continue, and they are parties, wouldn't they be expected to 5 contribute fully?
6 Now on the other hand, those who favor suspension 7 or favor termination, would this say that they wouldn't be 8 the willing parties?
9 MR. LOWENBERG:
- They have said that as a matter 10 of fact. Several of them have.said that they would find 11 difficulty testifying and expending the resources to go through the motions on a proceeding that would be .costly to them --
12
- 13 14 15 COMMISSIONER KENNEDY:
to thos*e resources?
MR. LOWENBERG: Not as yet.
Are we not conttibuting COM!1ISSIONER KENNEDY: Are:we not committed to do so 16 MR. LOWENBERG: No.
17 COMMISSIONER KENNEDY: No?
18 CHAIRMAN HENDRIE: Didn't the Commission propose 19 some financial assistance and didn't the Commission 20 MR . LOWENBE_RG: Yes , but i t was turned down .
21 MR. PEDERSEN: It was not forthcoming --
- 22 23 CHAIRMAN HENDRIE: The Congress specifically failep to f d .
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25 and we believe we cannot, therefore, offer financial assistance We are offering some procedural assistance?
16 mm MR. LOWENBERG: At this time we are making copies 2 of the service list for them and things of that nature.
3 COMMISSIONER KENNEDY: Financial assistance only.
- 4 5
But we are providing procedural assistance.
MR. MEYERS: We can't pay for NRDC to fly in from 6 California.
7 MR. LOWENBERG: Or pay for consultants that they 8 may wish to hire to testify at hearings.
9 CHAIRMAN HENDRIE: Legal fees.
10 MR. MALLORY: Also the utilities and the industries 1l were not united in favor of continuing. The Consolidated 12 Utility Group favored deferral.
- 13 14 15 And AGNS' comment did not really address the issues, but did state that private reprocessing did not appear poss1ble for the time being.
COMMISSIONER KENNEDY: So what you are saying is 16 that i t is a reasonable proposition to assume that even if it 17 were continued in full blush, there really would be some 18 reluctance on the part of all parties to contribute as fully 19 and vigorously as they might otherwise be expected.
20 MR. LOWENBERG: That's exactly true.
21 MR. MALLORY: Certainly on a number of parties.
22 Other parties might participate fully.
23
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25 But i t would appear that the environmental groups have indicated that they probably would not. And some of the
17 mm industry members have indicated less than full enthusiasm.
2 MR.SHAPAR: Their initial position might not 3 necessarily coincide with the facts.
- In the event the Commission
- 4 5
decided to continue, then they might decide they wanted to protect their position. So I don't think you can is a there necessary ,:one-on-one correlation between these protesta-6 7 tions and what*might actually occur.
8 MR. MALLORY: Also the enthusiasm might depend on 9
whether it was -- the p~oceeding was aimed at licensing *or 10 not.
CHAIR.MA...~ HENDRIE: That is whether there had been 11 some coii.rilcident Commission decision about what to do about 12 I
- 13 14 15 the individual license cases .
MR. MALLORY:
in GESMO finally.
And what decision would be reached CHAIRMAN HENDRIE: I recall a comment from 16 California, I believe from the Energy Board, which suggested 17 that a positive decision at one end or the other of the 18 spectrum of options ought to be made,and they can see no merit 19 whatsoever to anything in the .middle.
20 I don't recall uhen which end they preferred.
21 MR. MEYERS: They just wanted a decision.
- 22 23 MR. LOWENBERG: They just want someone to say
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25 that they are going to do this .
COMMISSIONER KENNEDY: This is associated, probably,
18 mm with their own law.
2 CHAIRT\1.AN HENDRIE: Could somebody comment on the 3 merits of~- or lack of merit, of feeling a need to steer clear
- 4 5
of the extremes.
MR. MALLORY: California wanted a quick decision either to recycle plutonium or not ever to recycle plutonium.
6 7 Arid no one here proposes that that can be done with the kind 8 of speed California would like to see. Even if GESMO is 9 continued it will take some time to decide what to do.
10 And if anything less than continuation is done, then ll the decision is even further off.
12 MR. RATH~UN: ~hey specifically dislike deferral-
- 13 14 15 type alternatives, and cited as substantial uncertainty displayed by the industry, factors such as that.
some sort of a resolution.
They wanted MR. LOWENBERG: I think their comments, like several 16 others, addressed the decision process in a quasi-theoretical 17 manner, and didn't look at the full practical imolications of 18 how you get to some concluding point. It was a matter of 19 reaching a fast decision.
20 It might sound simple to someone writing a.letter, 21 but it is fraught with many problems, in view of all the other
- 22 23 work that is ongoing, alternatives and other considerations
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.25 which must fully be ventilated and considered before a decisional process ~an be finalized .
19 CHAIRMAN HENDRIE: Okay.
2 MR. LOWENBERG: That was another point.
3 CHAIRMAN'HENDRIE: Okay. That helps me a little
- 4 5
bit because my own feeling, I thought about the California Energy Board comment for a while and i t seemed to me that they 6 offered us a compliment whichve do not deserve, namely 7 that the Commission if it decided to go forward and decided 8 that plutonium recycle was a national policy, and if we decided 9 not to go forward with GESMO, we decided i t wasn't; it struck 10 me that -- i t did not appear to me that we quite possess that l1 authority or quite had that role in the national scheme of 12 things.
- 13 14 15 I thought it very nice of them to suggest by their comment that that might be the case.
You were about to add another?
MR. LOWENBERG: Yes.
16 The last point I think that the GESMO Hearing Board 17 made was, completing the record to some extent in the near 18 future would undoubtedly be somewhat wasteful in the sense 19 that all the ongoing work related to NASAP and INFCE and the*
20 various alternatives that are being studied in additon to the 21 ones that were originally projected in the GESMO, will 22 undoubtedly involve the need to considerably supplement whatever 23
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25 record is done, and maybe even redo i t in the context; plus the fact that the basic size and nature of the industry may
20 change due to the result of these ongoing studies.
2 And therefore having a record that is documented and 3 clear but doesn't apply, let's say two years from ~ow, would 4 undoubtedly cause a lot of additional work to be done. And':
5 they felt that was less than efficient.
6 That was the last point in the efficiency.
7 That essentially completes the rundown, broad 8 rundown of the comments.
9 COMMISSIONER KENNEDY: Did this take into account 10 the comments of the General Accounting Office in its October 11 7th statement?
12 MR. LOWENBERG: We didn't list that as a comment
- 13 14 15 specifically. Their position was of course, again, one that oversimplifies the matter, was to complete the record.to get the GESMO decision reached.
We didn't include their comment in our list of 16 comments because it wasn't an official response to our request 17 \
for comments, although i t is in their report to Congress.
18 COM!.'iISSIONER KENNEDY: It did say --- it didn't 19 suggest making a decision. It said quite the opposite, it said, 20 should defer any irrevocable decision.
21 MR. LOWENBERG: Complete the record. And there-again 22 I think it is an oversimplification as to how you complete the 23
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25 record with all of the ongoing work that is going on, and a record that is spread over several years.
/
21 mm C0~1MISSIONER KENNEDY: Although it did say to 2 expand that record, the scope of the record to include 3 reviews of alternatives.
- 4 5 our MR. LOWENBERG: Their comment actually reinforces the alternative of defer with the Commission Staff closely following all its ongoing work.
6 7 I think it fits into the vein, if you want to get 8 into the discussion of options, that comment really reinforces 9 that particular option, the one of defer and keep pace with 10 all the work and be ready to reach a decision as promptly as 11 possible when all this work reaches a culmination point and 12 is ready for further consideration~
- 13 14 15 MR. PEDERSEN: That's why I think in the options you have to make a distinction between the optiora of pressing ahead and pressing ahead to a decision. I think the latter would be very difficulty, quick decision. In light of INFCE ,and others, 16 I think you should be shooting at something for a target here.
17 I think it is a useful distinction to keep in mind.
18 CHAIRMAN HENDRIE: D6 I remember a recent comment by 19 one of the GAO Staff that I have seen, another one of these 20 views that the Commission is compelled by statute to go 21 forward?
22 23 24 MR. SHAPAR: I don't think I feel we are compelled by law to go forward at all. I think it is part of a legal Ace-Federal Reporters, Inc. discussion in the paper. You have the ootion not to go forward 25
22 mm if yo~ choose to exercise that option.
2 CHAIRMAN HENDRIE: Well we have been encouraaed to 3 think in various comments, that we either have a statutory duty 4 to go forward and don't have ,.an option; or a statutory duty 5 to stop and don't have an optio~.
6 I guess the collective advice from counsel's office 7 and your office is that neither of those positions' is, in 8 fact, correct.
9 MR. MEYERS: This is probably a good time to get on 10 the alternatives.
.,, One of the comments made is that any of the 12 alternatives is legally accep~able.
COMMISSIONER KENNEDY: Before we get there, there 13 are ,a couple of more questions about the answers, responses.
14 Could you give us some feeling for how these 15
.:answers addressed the Eizenstadt letter, or its mess-age?
16 What did people have to say about that?
17 MR. LOWENBERG: Well that again is fairly polarized 18 like the responses were. There were people that favored the 19 Presidenti;s position and said in effect that we must,you 20 know, reinforce his policy, and not do anything to detract 21 from his initiatives.
22 On the other hand, the ones that said go forward---
23 and many of the individuals in that category infer that he
- 24 l\ce-Federol Reporters, Inc. was silencing full discussion and the airing of this issue 25
23 mm if termination would result because they felt he had made his 2 own unilateral-decision and the country must follow that 3 even though :the issues had not y;et ,,been fully aired in the 4 public.
5 So there was a great polarization on which way you 6 would go.
7 MR. MALLORY: I think the industry and utilities 8 generally said that continuing would be in accord with the 9 President's policy of examining alternatives and provide 10 information relevant to that examination.
11 COMMISSIONER KENNEDY: So no one is really arguing
., 12 13 14 that the President's policy itself shouldn't be pursued, but rather --
MR.NELSON: 1-vestinghouse comes close to that, Commissioner. They take on the letter in terms of its wording, 15 that it is not phrased as strongly as the President might have 16 phrased it if he really meant us to stop.
17 Yes, there are arguments that did not mandate it, 18 the language was more gentle, and so forth.
19 They come closest, as I recall to actually taking 20 on the President.
21 Even they don't go so far as to say, second guess 22 him as far as policy. But the do quarrel a good deal with the 23
- 24 Ace-Federal Reporters, Inc.
25 language of the letter and argue that it is not a reasonable basis to enable us to do what he wants us to do. There isn't
,. 24 enough material in the letter.*
2 COMMISSIONER KENNEDY: Do they argue, do any of them 3
argue that to go forward would actually be in support of his 4 policy?
5 MR. MALLORY: Oh, yes. But they say that --
6 COMMISSIONER KENNEDY: What is their argument?
7 MR. MALLORY: Generally that collecting information 8 on this particular alternative would provide information for 9 the alternative studies that are going on.
10 COMMISSIONER GILINSKY: Who argues this?
11 MR.MALLORY: I think a number of people among the 12 industry, perhaps the GESMO utilities.
- - 13 14 COM.MISSIONER GILINSKY: That::to_*go forward with -
GESMO would be in support of the President's policy?
15 MR. MALLORY: On examining alternatives --
16 MR. RATHBUN: Indirectly, though, couldn't NASAP 17 end contributions to NASAP, INFCE, things like that?
18 MR. PEDERSEN: Going forward with the data collectin 19 part of it.
20 COMMISSIONER GILINSKY: Even though the President doesn't seem to think so?
.21
- .22 23 for INFCE.
MR. PEDERSEN: The information would be valuable
- 24
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25 COMMISSIONER KENNEDY: Surely it is not to be suggested that',:that is an unusual state of affairs.
25 mm CHAIR'l\1AN HENDRIE: Further Commission discussion 2 oh the summary of public comments?
~
3 COMMISSIONER GILINSKY: I would like to ask about
- 4 5
the :: *.notion of def err al.
Is that.described as being 'indefinite, or is 6 there some specific time interval involved?
7 MR. MEYERS: It is tied to whatever decision.
8 INFCE has made~ completion of the NASAP studies.
9 In other words, not a date, but the completion of 10 ongoing work.
11 COMMISSIONER GILINSKY: Well INFCE has a date,attach d*
12 to it.
I
- -- .13 14 15 MR. MEYERS: It is an ongo:ing two~year date.
COMMISSIONER GILINSKY: Well was that the suggestion then, to defer it for two years?
MR. MEYERS: The concept would be to tie it to 16 when the President makes his decision" with what he wants to 17 do finally with_regard to recycling and reprocessing.
18 COMMISSIONER BRADFORD: I suppose there is nothing 19 about the concept of deferral that i t can't be tied to any 20 date.
21 MR.* MEYERS: Right. There is no specific date.
22 INFCE, NASAP, all these *are tied to providing more information 23 so that one can say finally that we should; or should not
. .'!"§,.;',;.., 24 IAce-F-edeFofeRep~tters, Inc.
reprocess or recycle.
I 25 I
26 mm MR. NELSON: I think in addition to::.:the point, 2 the more precise you do it, the deferral, the better from~the 3 litigation viewpoint. A deferral until never is the same thing
- *4 5
practically as terminating the proceeding.
And if there are legal advantages to deferral or, 6 suspension .. instead of termination, the vaguer the commitment 7 of the agency, the more the distinction blurs, and themre 8 we begin to lose those advantages.
9 So I don't know that I would agree with the view 10 that we can defer with language that effectively never commits 11 the agency to return.
12 MR.SHAPAR: But if it is tied to the completion I
- 13 14 15 of an ongoing study which has been publicly announced to be completed in approximately two years, I think that would be good enough for legal litigation purposes.
MR. NELSON: Not only good enough, that was our 16 recommendation. But not to have something in it it seems to 17 me is somewhat more difficult from a litigation viewpoint.
18 COM.MISSIONER. BRADFORD: But you ,,have also 19 concluded that termination is defensible from a litigation 20 standpoint?
21 MR. NELSON: I think so. Yes.
22 CO.WUSSIONER BRADFORD: Is termination any harder 23
- 24
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25 to defend than indefinite suspension?
MR.NELSON: Yes.
27 mm MR. MEYERS: There is a degree of logic that 2 favors suspension and deferral as opposed to termination.
3 COMMISSIONER BRADFORD: :If indefinite iuspension
- 4 5
is the same as termination, why is one harder than the other to defend?
6 MR. MEYERS: We are not talking about indefinite 7 suspension.
8 COMMISSIONER BRADFORD: We just were a moment ago.
9 MR.MEYERS: We have tied it to the INFCE studies, 10 the NASAP studies, and presumably information that would come l1 out of that would allow the President to say something definitive about reprocessing or recycling.
12
- 13 14 15 COMMISSIONER BRADFORD: I understand that.
The discussion of a moment ago was in terms of whether or not indefinite suspension or suspension without a specific date began to look like ind~finit~ su~pension.
16 MR. NELSON: Let me try to clear it up.
17 I think we are talking about three things:
18 One --
19 CHAIRMAN HENDRIE: Peter, would it be better to 20 attempt to sort out on the point here, or since we inevitably 21 draw to the options and alternatives, io,go ahead and hear a
- 22 23 general layout on the paper and then delve back into this?
- 24 A.ce-Federol Reporters, Inc.
25 COMMISSIONER BRADFORD: Yes.
different concepts are reasonably clear.
I*.think in fact the
28 mm 28 How much more difficult- though, do you feel that 2 termination is to defend legally than suspension with a 3 specific date?
1--
- 4 5
MR. NELSON: Well, I don't know that it is a quantifiable difficulty, Commissioner.
6 My feeling abo.ut the problem is that insofar as 7 the FCC freeze cases and other analogous authorities are of 8 help to us, they help us more in the ~uspension or deferral 9 pattern than they do in the actual termination, we are through 10 with it, go home type.
11 So that as a lawyer, I like to see analogies in the 12 case law that might help us. And I think they are better
- *13 14 15 analogies for us if we call i t suspension or deferral, and in fact.do suspend or defer, than if we simply wrap i t up and go home.
Secondly, i t seems to me that from the viewpoint of 16 persuading the Court"of Appeals,that i t has the appearance of 17 responsive agency action to say that we will commit ourselves 18 to look at this problem again when certain things happen-that 19 would make i t worthwhile to look at, rather than to say, we 20 wash our hands of it, goodbye.
21 I think that is less attractive.
22 So, from the viewpoint of litigation, if I have to 23
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- .
I 25 defend one of them,and I guess our office will, I would rather defend the deferral or suspension as opposed to outright
29
- 2 termination
- MR. SHAPAR: Which is not to say that we don't 3 think we would prevail on an outright termination.
4 I think I would add to that that the reasons_you 5 give for either are important. If the reason, for example, 6 of termir1ation is we think that because te want to wait until 7 the completion*:,of the ongoing studies that the record will .be 8 stale, that is a reasonable basis for*saying you want to 9 terminate, if you want to terminate. It is also a reasonable 10 basis for deferring 11 Bµt I think the reasons are fairly important, if you 12 want to get into fine distinctions between indefinite deferral
- 13 14 15 and termination from the vantage point of questions that you asked, Commission.
COMMISSIONER KENNEDY: Do you think that the reasons are equally valid? That you just said you would use the 16 same reasons -- well, not the same reasons, essentially the 17 same reasons for either case.
18 MR.SHAPAR: My response to that question is that 19 I think the reasons for deferral are better than the 20 reasons for outright termination. That .is my _personal opinion.
21
- 22 23 MR. NELSON: I thought._6f a third argument --
CHAIRMAN HENDRIE: Look, could we go forwc1rd.
- 24 Ace-Federal Reporters, Inc.
25 What I would like to get on the table, is a summary of the options, possibilities, and then let- us come back into
30
- mm 2
3 this dis.cuss ion of things. I would like to get that framework in hand, and to, in effect, turn consciously from the nominal discussion of the public comment_s received in answer to the 4 Commission's recent order, to .. a discussion of the options 5 before theCbmmission. Keeping once again in mind. that our time 6 is .. limited this morning, I do not propose that the Commission 7 close on the matter.
8 This discussion will outline for us and provide a 9 framework for us to come back to it next week. Okay? Can we 10 dothat?
11 MR. MALLORY: Yes.
12 Our paper discusses: *.six options. Four of -them were le 13 from the previous OGC/OPE paper and three of those have been offered and presented by NMSS and ELD. One of them is from a 14 footnote in our previous paper,and one of them is new.
15 The two extreme options of terminating the GESMO 16 proceeding and denying pending license applications, or 17 continuing GESMO*and proceedings on pending license application 18 are two of the ones that we requested public comment on.
19 Deferral of further consideration of GESMO and 20 related license applications pending reassessment -of the 21 nation's nonproliferation policy is the third alternative 22 that we asked for public comment on.
23 And the point at which the Commission might decide 24 Ace-Federal Reporters, Inc. to reexamine the issue should be stated clearly. But whether 25
31 we talk about it in terms of completion of INFCE and NASAP, or 2 include possible other clarifying points in the nation's 3
nonproliferation policy such as Congressional action, remains 4 tobe determined.
5 A new option that we presented".in the .paper is sort o 6 a combination between deferring and continuing, and that would 7 be to continue GESMO and proceedings on pending license 8 applications as far as practical~. But when i t became difficult 9 to proceed further because the proceedings were getting more 10 into an area that was impacted by the alternative fuel cycle ..
11 studies, then the proceedings might be deferred .until they could 12 be picked up again at some logical point *
- 13 14 15 I think it is difficult to predict now just where those points would be. And i t might be a matter of indicating that we would continue the studies to the extent possible and 16 recognize the difficulties of -- or the possibility of reaching 17 a conclusion of the proceedings, and simply keeping an ear open 18 in;the other studies.
19 The fifth alternative, which is the one -- another we 20 put out for public comment, was to continue GESMO.
21 Well, let me back up a step.
- 22 23 The first four alternatives essentially do similar things to the GESMO proceedings in the pending license
- 24 Ace-Federal Reporters, Inc.
25 application proceedings. That is not necessary.
The fifth alternative is to continue GESMO in some
32 mm form, but to terminate or defer proceeding license applications 2 and this is one that had been put out for public comment.
3 One form of continuing GESMO that had been I
4 suggested by the Staff sometime ago, was to complete the record 5 on health, safety and environment and terminate or defer the 6 proceedings before the safeguards issue was taken up. The 7 paper discusses a couple of other possibilities in terms of 8 the continuation.
9 And .the reverse possibility,the last alternative, 10 continuing the license application proceedings, but 11 terminating*or deferring GESMO.
12
-We think this alternative has some serious legal
- 13 14 15 problems, bec.ause it would be difficult to grant licenses for widescale use if the Commission determined that the pending proceedings are for facilities with widescale applications, without having done the impact statem e nt on widescale 16 applications.
17 MR. SHAPAR: And there is a Court Order on that, 18 too.
19
~ MR. MALLORY: Yes. There is currently a decision 20 that bars us from doing that.
21 CHAIRMAN HENDRIE: I think you argue, and I agree
- 22 23 with you, that this is not a case where one had licensing
- .24 t>.ce-Federol Reporters, Inc, 25 actions which deal with, you know, a small number of relatively small operations, against a potential large field of such
33 mm 1 things. But rather, each one of these things, :there just 2 aren't going to be that many reprocessing plants, if there are 3 processing plants,and each one of these would be a rather broad
- 4 5
sc.ale, or wide scale use of the technology.
MR. :.MALLORY: Yes.
6 CHAIRMAN HENDRIE: It is hard to argue that any one 7 of these licenses is sort of a no, nevermind effect, and 8 wouldn't need a generic -- need the broad consideration 9 MR. MALLORY: Yes,the Barnwell plant would reprocess 10 fuel from most currently operating reactors.
11 The Exxon plant would, I think,, at its maximum capacity, would reprocess fuel from all currently operating 12
- 13 14 15 reactors.
There were some*minor issues discussed in the paper.
I don't think they need to be taken up here. I think they are subsidiary to the decision on these two major issues.
16 CHAIRMAN HENDRIE: Okay.
17 Now I encourage the Commissioners to pursue such 18 discussion~as i t wants.
19 COMr:iISSIONER GILINSKY: On the deferral option, 20 on this number 3, would you be stopping all work for this 21 period?
22 MR. MALLORY: The deferral option would mean deferral 23
- 24 Ace-Federal Reporters, Inc.
25 of Staff reviews and hearings on the licenses and hearings on GESMO: The studies might conti*nue that would complement or
34 mm l add to the NASAP or INCFE studies. '. But they would better be:
2 tailored to those studies, rather than tailored totrecycling.
3 COMMISSIONER GILINSKY:
- There is where we would
- 4 5
conduct studies that would assist us in our participation in these broader efforts?
MR. MALLORY: Yes.
6 7 Or, if not studies-, at least following closely so that at termination we are ready to take up as quickly as 8
9 possible.
10 COMMISSIONER KENNEDY: We could do this whether we 11 terminate it, defer it, or whatever. We are already committed
(.
to do so, are we not?
12 MR. PEDERSEN: We already are.
13 COMMISSIONER KENNEDY: We are already doing that, 14 so it has nothing to do with this decision.
15 MR. MALLORY: Yes,! think that is correct.
16 MR.SHAPAR: Except that the work product itself 17 might be useful for any resumption of GESMO.
18 MR. PEDERSEN: I think you defer and tie it to a 19 resolution of INFCE or NASAP. The way you loqk at this data,
.20 the way you monitor i t andw:crj;.ch i t would be somewhat 21 different, and you would need some time to take i t into conside -
- 22 23 ation.
- 24 Ace-Federcl Reporters, Inc.
25 COMMISSIONER GILINSKY: What would be the signal to pick this up again?
35 MR. PEDERSEN: I think that is a key point. There 2 is a little confusion -- not confusion but in the wording in 3 one place it says, defer pending reasses~ment of the nation's 4 nonproliferation policy.
5 Later on in the paper in the recommendation, it 6 says, defer pending completion of the INFCE efforts.
7 The two are not necessarily the same. There may 8 be no reassessment at the end of INFCE, and if there is one it 9 may come along after the' conclusion if it is an announced 10 reassessment.
11 So I think where you hang your hat here is important.
I think Rich alluded to that, that there are several milestones 12
- 13 14 15 and how specifically you tie your reassessment, whether to go forward again to a particular milestone is not an insignificant decision, because there may be n~ reassessment of national policy. Carter may get the results and just sit quiet. Or, it 16 may come a year or more after the end of INFCE. INFCE may end 17 with a whimper, and not a bang.
18 COMMISSIONER GILINSKY: So what was your suggestion?
19 MR.PEDERSEN: My own suggestion would be to defer, 20 but to defer and not tie it to a specific event which may or 21 may not occur. It may not even be apparent to us when it does 0 22 occur.
23
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25 deferral?
COMMISSIONER GILINSKY:
This is an indefinite
36 MR. PEDERSEN: I know that creates litigative prob-2 lerns,and I am *not a lawyer.
3 But, if we tie i t to the end of INFCE, for example,
- 4 5
it is not clear that the end of INFCE is going to be a clearly identifiable point.
in, and --
There are going to be studies dragging 6
7 MR. SHAPAR: But we could defer to that point. When 8 that point was reached, if we felt it wasn't :,suitable, we 9
could redefer again.
10 MR. LOWENBERG: The intent of Administration policy -
11 now what.will -eventually occur is another matter, but the inten is to clearly have a reassessment at some point in time, 12
- 13 14 15 whether it be the conclusion of N;ASAP or INFCE:or the combina-tion, that is the intent.
Whether they go through with that intent, only history will tell us.
16 COMMISSIONER KENNEDY: Is it not the Administration' 17 stated policy or stated intention, that the studies are, in 18 fact, the reassessment'? That is, they are the work:--
19 MR. LOWENBERG: To lead to a reassessment.
20 COMMISSIONER KENNEDY: -- to lead to a reassessment?
21 MR. LOWENBERG! That is correct.
22 That is the intent of the policy.
23
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25 COMMISSIONER GILINSKY: So in other words, we are waiting for a signal from the Executive Branch? We are waiting
37 mm for another letter to say 2 MR. LOWENBERG: I don't know if it would be in the 3 form of a letter.
4 MR.MALLORY: I clon 1 t think so. I think it would be -
5 MR. LOWENBERG: It would be a statement of policy 6 that this work has been done, and we now have reassessed.
7 MR.MALLORY: I thinkthe Commission will be making 8 its own decision on whether the studies had reached the point, 9 or whether the country's policy had reached the point that i-t 10 should reconsider the deferral. And we should tie it to as 11 definite a point as possible.
12 I think I:might differ with Ken on that.
- 13 14 15 COMMISSIONER GILINSKY: - The President-':s letter urged termination?
MR. MALLORY: Yes.
MR. LOWENBERG: Yes.
16 COMMISSIONER KENNEDY: What does it say?
17 MR. MEYERS: It says terminate.
18 MR. NELSON: Uses the words termination of Staff 19 reviews and hearings relating to recycle activities.
20 MR. PEDERSEN: My point is that these points we tie 21 to may not be as clearcut as we now think they would be.
22 Reassessment may amount to silence from the White
-23
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25 House, quite frankly, at the end of INFCE.
COMMISSIONER GILINSKY: Now if we are going to defer
38 mm should we be writing them again, saying that -we have, on 2 reflection, decided t<b.. diefer instead of terminating and would 3 like to hear from you?
-* 4 5
MR. MEYERS:
thing for you to do.
MR. MALLORY:
I think that would be a legitimate I think, on the other hand, the 6
7 Commission should retain, :should indicate that it will--make its 8 own decision on when things have progressed to:the-point that 9 i t should resume its examination.
10 If, at the time it .appears that a letter to the 11 President would be a aood idea, then that would be how it would 12 go about dec;::iding to reexamine.
- 13 14 15 But on the other hand, it might be that if events were different,the letter would not be appropriate.
COMMISSIONER GILINSKY: But do you have any specific event in mind that you would tie this deferral to?
16 MR. MALLORY: Well, I think that there may be enough 17 definiteness in the end of the INFCE study that we could tie 18 it to that. Clearly, it might turn out not to be that way, in 19 which case we might -- we would have.committed ourselves 20 to reexamine i t at a reasonable time in the future, and not, I 21 think, let it drag on indefinitely simply because the study 22 sort of wound down and down and down, but didn't reach a 23 I
I
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25 conclusion.
MR. SHAPAR: Tied to a reasonable time after the
39 mm completion of the study* .
2 COMMISSIONER BRADFORD: Except the deferral, if it 3 is a deferral undertaken as a result of the letter from the
- 4 5
Preside-nt saying what we would read into, in effect, please defer, then you'd think that the restarting should be 6 triggered by some further communication-:from the President.
7 After all, he is the one who::.said that consideration 8 at this point in time is harmful to his nonproliferation 9 efforts. Presumably we would want to know at what point in tim 10 he thought that such consideration would no longer be harmful.
11 And of course we maintain the power to resume the 12 hearing at any time. I think ihat~_is clear in the legal section
- 13 14 15 of the memo in the same sense that we retain the power not to discontinue them now ..
But, if the reason for the deferring is deferral
- 16 to the President's concerns, you would think that;:the 17 triggering of that for resumption would logically have to be 18 some statement that the concerns have changed.
19 MR. PEDERSEN: I would only add to that 20 CHAIRMAN HENDRIE: I'm~ not sure, Peter, that that's 21 quite the configuration.
- 22 The Commission -- let's see,the Board in May of '77, 23 in effect, recessed the proceeding and asked the Commission --
- 24 Ace-Feaeral Reporten, Inc.
25 we have heard the President announce a national policy which would suggest that we are not going to reprocess, at least in
40 the near term, and what does that mean for this proceeding?
2 And the Commission then maintained the proceeding 3 in a suspended condition; debated a good deal back and forth 4 about what to do about it; and finally thought among other 5 things we would ask -- well, the Commission asked for public 6 comment on what to do with it, and decided to extend that 7 comment with specific requests if the President cared to make,:*.
8 you know, a specific recommendation.
9 But I don't think there is any implication in the 10 Commission's action, and I haven't regarded the President's 11 letter as sort of being the motivating force, that without 12 the President's letter the GESMO proceeding would be moving
- 13 14 15 strongly forward.
The President announced a different policy, national policy and the Commission responded to it, i t seems to me, at
. sometime down the line. If the President appears to be taking 16 some further action in choosing an alternative under the 17 examinations that have gone forward, then I wouldn't feel the 18 need to write him a letter and say, well. now what shall we 19 do with GESMO.
20 I would think that the Commission ought to decide 21 what i t thinks is necessary and appropriate to do, ad do it.
,e 22 COMMISSIONER BRADFORD: That;_ becomes, I -should 23
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25 think, a somewhat chancier proposition to defend legally.
is, to be saying in effect the C9mmis.sion suspended these That
41
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proceedings on its own judgment of what the President said in April.
3 You give relatively less weight to the letter that 4 we then got in October, but we are continuing the suspension 5 of the proceedings based on our own assessment of the needs 6 and demands of the President's policy :,as it now exists.
7 MR. MALLORY: I would think we give very* *strong 8 weight to the President's letter 9 COMMISSIONER BRADFORD: But the more weight you give 10 to the President 1.s letter, the more committed you are to 11 another Presidential communication before you start things up 12 again.
- 13 14 true.
MR. MALLORY: I don't think that is necessarily CHAIRMAN HENDRIE: It seems to me that if we take 15 the posture that the Commission is going to either do this or 16 that because we got a letter from the President, we are going 17 to have some difficulty then with the so-called independent 18 statutory status of the Commission as an independent 19 regulatory agency.
20 Obviously we give weight to the gentleman's views, 21
--\ 22 but we make up our own minds.
COMMISSIONER BRADFORD: I admit there are a lot of.
I 23 semantic shadings that one can put on the weight that one 24 Ace-Federal Reporters, Inc.
gives -- the extreme you could say we were compelled to 25
42 do this because it is what the President said. I don't take 2 it anyone is recommending it in that:posture.
3 But whether you say, among other things we now know 4 the::.:President's views by letter, but that doesn't make too much 5 ~ifference because we already suspended the proceedings; or
/
6 whether you say we give considerable weight to the communicatio 7 of the President, I should think would make some difference in 8 terms of the posture that you then go irito court in.
9 MR. MALLORY : :I think we can give considerable 10 weight to the President's letter and still determine that -we
- 1 1 aren't going to do exactly as he asks.
12 But the current effect of deferral is the same.
- 13 14 15 COMMISSIONER BRADFORD: The issue as I see it, isn't-whether we do exactly what the President asks or not.
All *.b.hat Joe and I were talking about is whether the weight 16 that you afford to the President's letter at this point in time 17 in any way governs what the triggering *event**. :for a resumption 18 of the proceeding is later on.
19 MR. SHAPAR: "I don I t think it is a trigger. The 20 Commission solicited the Commission's views.
21 COM!~ISSIONER BRADRORD:.The President's views.
MR. SHAPAR: I mean the President's views.
22 COMMISSIONER BRADFORD: Soliciting our own views is 23
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25 a much harder process.
(Laughter.)
43
- 1 2 discretion.
MR. SHAPAR: It chose to do that as a matter of It got the President's views.
}
3 If something*happens in the future I don't view 4 another letter from the President is a trigger in any sense ..
5 I would assume the Commission probably would want to consult 6 with the President; it might want to write the President.*
7 another letter; i t mioht not. But I wouldn't view it as a 8 trigger, which is a direct response to your question as I see 9 it.
10 MR .. MALLORY: I think in addition we view the 11 ongoing studies as another reason for deferral. It is 12 difficult to continue now with these studies ongoing and be
- 13 14 able to develop a complete record.
And if the President had not asked us to do anything one way or the other, but simply initiated the studies. we 15 16 would still be in a difficult position trying to finish I
17 GESMO and make a decision on it with a complete record. And 18 that is an independent --
19 CHAIRMAN HENDRIE: I think that is iust riqht.
20 If, in fact, the President had written back and 21 said, i t really makes no difference to me one way or another,
- 22 23 decide on your own bases, qood judgment, whether to lift the suspension or continue it, or whatever else you want to do, I
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25 think there would be strong reason to, at a minimun,keep it suspended. I just don-':t think at this point it is very helpful
44 to go forward and ask the Staff to keep trying to develop 2 positions~ You know, sort of week by week, there will be
. -- 3
-4 alternatives suggested,and it just makes for an impossible situation.
5 The thought that the material would be useful for 6 use in the evaluation study in NASAP and so on, you know to an 7 extent that is true, but it is the wrong way, too. Those 8 studies really have to be input to the proceeding here.
9 COMMISSIONER KENNEDY: Will you be able to spell 10 that out a little bit with the Staff at the next meeting?
11 CHAIRMAN HENDRIE: By all means.
COMMISSIONER BRADFORD: If the President had written
- 13 14 15 back and said it doesn't make any difference to me which way you go, and we had kept the thing in suspension, and one of the specific applicants in one of the proceedings had gone into 16 court, would you feel we were on as sound a basis at that 17 point as you would with this letter?
18 MR. MALLORY: No.
19 The letter is a definite thing that has to be 20 weighed.
- 21 CHAIRMAN HENDRIE: Can I ask the question a different
- 22 wav:
Would:pu be on an adequate basis to defend such a
.23 24 decision? Clearly the letter is a plus, but without it would Ace-Federal Reporters, Inc.
25 there be a perfectly adequate basis for the Commission to say
45 we will continue the suspension of this proceeding?
2 MR. MALLORY: I think it would be more difficult to 3 defend.
4 COMMISSIONER BRADFORD: As the suspension moved 5 into its third year.
6 (Laughter.)
7 MR. MALLORY: I think i t might be adequate.
8 I guess I would have to say I haven't addressed that 9 particular point.
10 MR. MEYERS: If one follows the line of logic, 11 this all is tied to the April announcement on an indefinite 12 suspension or deferral of the reprocessing and recycling,
- 13 14 15 completely absent the letter from :rtr. Eizenstadt.
A responsible approach would be to await the outcome of the various ongoing studies that presumably will feed into a later decision on whether to make that suspension permanent, 16
- chanqe it in some wav.
17 I think a perfectly logical approach for the Cornrnissi n 18 to take, even absent the President's lette~ would be to await 19 the same outcome of those studies.
20 COMMISSIONER KENNEDY: Has the Staff thought at all 21 of supposing -- I'm just purely supposing a suspension and 22 a reopening of the proceeding at some future date after the 23
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25 studies are completed, what the value of those studies would be in terms of the record of that reopened proceedinq?
46 First of all, it occurs to me that there would be a
- 2 lot of data in those studies. But that data would all be 3 subject to litigation in the hearings and the oroceedinas.
4 COMMISSIONER GILINSKY: Which studies*:**aretthese?.
5 COMMISSIONER KENNEDY: The INECE studies, NAS.AE, 6 studies that we have been talking about.
7 If the proceeding were to be reopened, all of that 8 data would be relevant, presumably, in the proceeding.
9 Wouldn't each of those studies then be subject itself 1o to a reexamination in the proceedinqr, 11 This may turn out to be one of -- if it were 12 reopened* might turn out to be one of the lonqest proceedings
- 13 14 15 in history. Again reaffirming my view that the greatestt growth industry in the United States is the legal profession.
(Laughter.)
16 MR. SHAPAR: My staff has remained relativelv constant, I might remind you ..
17 (Laughter.)
18 COMMISSIONER KENNEDY: Only with the due diliqence 19 of the Commission.
20 (Laughter.)
21 MR. SHAPAR: I wouldn't say diligence, I would say 22 intransiqence.
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25 (Laughter.)
COMMISSIONER KENNEDY: Fair.
47 mm MR. PEDERSEN: I think we ought to keep in mind 2 precisely that.
3 CHAIRMAN HENDRIE: That furnishes me a sort of 4 comma in the proceedings, and I seize the pause to say, good 5 enough for this morning.
6 I am now aware that our time has about run out and we 7 .. are to return to the subject next Wednesday, I think I said.
8 And we will continue the discussion at that time.
9 And I hope I will be able to sense the consensus of 10 the Commission developing on the decision.
11 But I would like to move now from this sµbject.
12 (Whereupon, at 11::00 a.m., the hearing in the
- 13 14 15 above-entitled matter was adjourned.)
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