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 ACE - FEDERAL REPORTERS, INC.
Official Reporters 444 North Capitol Street Washington, D.C. 20001 NATIONWIDE COVERAGE* DAILY Pages 1 -
47 Telephone:
(202 ) 347-3700
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.
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25 UNITED STATES OF A..'r\IBRICA NUCLEAR REGULATORY COMMISSION PUBLIC COMMISSION 11EETING DISCUSSION AND ANALYSIS OF PUBLIC COMMENTS ON GESMO Room 1130 1717 H Street, N.W.
Washington, D.C.
Friday, 2 December. 1977 The NRC Commissioners met, pursuant to notice, at 9: 30,a~:m.';. JOSEPH HENDRIE, Chairman, presiding:
PRESENT:
JOSEPH HENDRIE, CHAIR..111.AN
- tUCHARD KENNED~, COMJl.1:ISSIONER VICTOR GILINSKY, COMMISSIONER PETER BRADFORD, COMMISSIONER Howard Shapar Homer Lowenberg,
Sheldon Meyers Lee V. Gossick Dennis K. Rathbun Kenneth s. Pedersen Richard S. Mallory Jerome Nelson John Hoyle 1
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P R O C E E D I N G S CHAIRMAN HENDRIE:
Commissioner Gilinsky will be with us.1.almost immediately, and I don't propose to say anything initially of such profound nature that he will miss anything.
We are meeting this morning on part of the Commission's ongoing.deliberations on what to do with the GESMO proceeding.
The items that I wquld like to have the Commission hear and discuss this morning include first a
- Summary of the public comments in response to the Commission's order of October 28th inviting public co:m..rnents on the GESMO matter, particularly in light of the letter from Mr. Eizenstadt of the President's office.
- And we will* have.s.uch discussion of those comments as the Commission feels.. appropriate *.
The other item, if time permits, which I would like to go to in connection with the GESMO matter, is to.have Mr. Nelson and Mr. Pedersen outline for us what they see as the Commission's options with regard to this pr.oceeding.
I would look for clarifying questions and perhaps I
some limited discussions by the Commission. But I would expect that the central discussion of the Commission on these options and its decision on what to do with the GESMO proceeding would not be made,this morning *. ~e have scheduled
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a meeting for next week.
It is scheduled for 2:00 p.m. on
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Wednesday, the*7th of December, and I look toward that meeting for what I will call the major Commission discussion on the options.
One other comment which I would like to*make*
- before we ask Staff to summarize the public comments, is that this is the first of the Commission public meetings for-which a transcript is being made, said transcript to be placed in the Public Document Room.
It is to be placed there as an unreviewed document.
It is not approved by the Commission, wili ;not be reviewed by the Commission or Commission Staff.
It is a best effort transcription of the meeting by a professional reporter.
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 or may not represent the point of view of that Commissioner or Staff member.
These discussions go back and forth, I hope, in a very brief fashion7 lines of question, areas of - discus.sion may be taken up by a Commissioner from the standpoint of exercising and illuminating a point, and may not at all represent the C6mmissioner 1 s*personal viewpoint.
I.find it necessary*to insert these remarks into the record at the beginning of this process of transcribing open meetings.
I have some limited experience with similar
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transcription efforts with the Advisory Committee on Reactor Safeguards, and on a few occasions have~found people inclined to take a little too literally isolated statements or lines of questioning o.:i:- discussion that individual members:: have taken up.
If other Commissioners have remarks to add to these, it would **be a good time to add them. And if not, I would welcome the Staff. Mr. Gossick?
MR. GOSSICK:
Mr. Meyers would like to say a few words introducing the comments on the comments received.
CHAIR"f\iAN HENDRIE:
Please go ahead.
MR. MEYERS: As of the beginning of this week we received approximately.37 comment letter~ almost equally split between environmental groups, industry, individuals.
- They fell into two general categories; those in favo of continuing GESMO and agree to licensing procedures that
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evolve from it.
And in support of that were the individuals, utilities and industry groups~
The other category were those in favor of terminatin the pnoceeding and the licensing process as well, with variation on that being suspension.
And most of the public-interest groups were in that category.
COMMISSIONER KENNEDY:
Suspension or termination?
MR. MEYERS: Termination.
Some of them wavered about suspension, being more favorable -- not favorable, but variatio.
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The major corrunent on suspension was by the GESMO Hearing Board.* There was a letter from them as well.
So those two categories pretty much represent the range of recorrunendations by the outside world.
And as you may recall, they were pretty much in the same category as the original paper that we had proposed.
The options that evolved from further study are variations on those two things.
Now we can, at this stage of the game, run down '..in some detail, the various organizations and what they said, depending upon their own particular desires.
CHAIR'1/2AN HENDRIE:
I think it would be useful if 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 deal on GESMO.
This latest round of comments simply allowed people one final chance to say some further things after the letter from Mr. Eizenstadt and the Commission's decision to move ahead and make its decision on disposition of the proceeding.
So I am not surprised that there wasn 1 t*broader commentary or that it didn 1 t*range further afield than it seems to have.
But I think it would be useful to note some of the shades of opinions in these groups of public comments.
MR. MEYERS:
Okay.
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I would like, in order to do that, as you know, there were seven categories that we broke down, and we can very quickly talk about the *various individuals, the industry, the utility group, et cetera, rather than talk about the individual 37 comment letters.
CHAIRMAN HENDRIE:
Just so.
MR. LOWENBERG: Fine.
To a man, the individual commentors all were in favor of continuing the proceedings COMMISSIONER KENNEDY:
How many of them were there?
MR. LOWENBERG: In total there were a dozen, and we have_* j.ust gotten another one in the last day or so, so there is actually 12 or 13 -- there are still some letters dribbling
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in, incidentally, even -at this late date, so the count may change one or two. But it is around a dozen individual comments.
And they all were, I wouldn't use the word I
unanimous, but they all qad the same position,even though they might have arrived at it by different routes, so::that they all favored continuation in some form.
Not all of them addressed the logic or exactly how you would continue, but*
they all felt that was the right position.
With regard to the utilities, there were just two utilities that responded individually. There were, Ace-Federal Reporters, Inc.*
however, a number that responded in groups, and the groups 25
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represented scores of utilities in combined form. So in total we heard from several dozen utili tie-s, if you will.
And their position varied slightly.
In the past, generally the utilities' position has been entirely in favor of.:continuation.
The GESMO Utility Group and the Consolidated Utility Group both well specifically the GESMO Utility Group would really prefer continuation, but they softened their position in that they found that suspension would.be or deferral would be more satisfactory than complete terminatio.
And the Consolidated Utility Group ;_favored a suspen-sion in their recent filing, which was one of the late ones that came in.
COMMISSIONER KENNEDY:
How many in the second group, the Consolidated PtilitY-?
MR. LOWENBERG:
- I don't remember the specific number of utilities represented by that'group, but it is I guess about a dozen or more.
I can get that~for you.
The nuclear industry as we characterize it, includes people like the fuel cycle organizations and Atomic Industrial Forum, and EEI.
And here again the position has changed somewhat from what it was six to eight months.ago and that is in general the nuclear industry would favor continuation, but here again they tend to find suspension acceptable, and certainly preferable to termination.
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Specifically AGNS softened their position and will acc.ept currently suspension or find it: acceptable.
And EEI also fits in that category of finding suspension acceptable.
MR. SHAPAR:
Deferral.b.n both the GESMO proceedings and the individual interim licensing applications?
MR. LOWENBERG:
Yes.
COMMISSIONER GILINSKY:
What is the difference here between suspension and termination?
MR. :SHAPAR:
None.
MR. LOWENBERG:
Well, Howard, I beg to differ with you.
I think Jerry Nelson might want to address that.
CHAIRMAN HENDRIE:
I think that is one of those points of view.
MR. LOWENBERG:
I think there is a difference between suspension and termination.
MR. MEYERS:
Let me try to answer that.
The President has talked about -an interim.decision in terms of reprocessing and recycling.
He hasn't made a final determination.
Our suspending would be tied to a final decision.
Terminate now, that's it, it is over with.
Suspension connotes the fact that the proceedings. are still amenable to being opened at some point in the future.
I think what Howard was getting at, -if you have
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a suspension for two, three or four years, it is* tantamount to termination.
COMMISSIONER-GILINSKY: You are probably not going to keep the same Board.
You are going to have to review the scope of the proceedings, and you are going to have to admit new parties that want to enter the proceedings.
MR.SHA.PAR: That's right.
I meant there is no distinction between suspension and deferral.
There is a difference between suspension and termination.
The main difference between the two is in connection with suspension.: or deferral, there is sort of a commitment to 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?
If one terminates and then at some future time were to institute a new proceeding, of what value would the existing record be?
MR. SHAPAR:
I would assume that someone could introduce., or seek to introduce the prior record into the new proceeding.
COMMISSIONER KENNEDY:
He would have to seek to introduce it,and that could be contested.
MR. SHAPAR:
That could be contested, depending on
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25 what ground rules the Corrunission set down for the conduct of the new proceeding.
10 COMMISSIONER KENNEDY:
If the matter were suspended, the record would simply be extant,when the proceeding were reopened** the record would. continue.
MR. Sli'APAR:
Right..
COMMISSIONER KENNEDY:
And be supplemented, or whatever.
MR.SHAPAR:
I must remind you that it would be a rather stale record.
COMMISSIONER KENNEDY:
Of course, I understand that.
But there would be no quest,ion about its admissibility'?
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, it would then be admitted.
MR. SHAPAR:
Well, we are not subject to formal adjudicatory rules so any ground rules the Commission wants to set down are.okay.
But if you terminate a proceeding, unless the Commiss_ion says something different, and you start
- a new proceeding, then the Corrunission is going to have to say something to get the old record into the new proceeding.
But the Commission has complete flexibility as to
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25 11 how it wants to handle it.
COMMISSIONER BRADFORD: That's all I meant.
Even in the case of termination, there ls no serious question about the Commission's powers to admit the old record?
MR. SHAPAR:
Not in this kind of a proceeding.
MR. MEYERS:
As a practical matter, the technical information would pretty much remain valid. There would be an obligation in either case to review and bring up to date whatever happened in the intervening time.
CHAIRMAN HENDRIE:
Let's see, maybe a natural continuation of this consideration of options and possibilities wo.uld follow from hearing the options *:.:-. paper a bit later.
COMMISSIONER KENNEDY:
You are stilli::.talking about the comments now.?
CHAIRMAN HENDRIE:
Yes.
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MR. MEYERS: One other thing, there was a common thread that went through the people who were in favor of continuing GESMO.
They sort of related it to the ongoing activities in INFCE and NASAP, that this would be a natural
-support for those two activities.
In other words,. by con~~-=----.
tinuing the proceedings,. information would come out of this that would be useful to INFCE and NASAP.
MR. LOWENBERG:
The response from states -- by the way, I would like to say that with Howard clearing up his discussion on termination and suspension, I agree exactly
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25 12 with him now, whereas before I didn't.
(Laughter.)
The response from states was split right down the middle.
Several states were in favor of termination and several were quite opposed to that and look.for a continuation.
COMMISSIONER KENNEDY:
Is there some pattern,.or some underlying reason which leads some to believe one and some to believe the other?
MR. LOWENBERG: Well New York and Wisconsin responded in the letter from New York, and actually I guess their positio is stated by New York and they favored termination.
So I*
think that has been their position right along, they haven't 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 and the only way they would have it would be by continuing the effort to completely see all sides of the position and hear all aspects of it.
So that is basically the way they came down.
The public interest groups, there were half a dozen of those that responded, and in general the ones that are usually associated with environmental movement were**.all in favor of termination.
However, there were several groups which we classed
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13 as publi.c interest groups that_ are in the vein of legalistic more than environmental.
And they both came down on the issue in the direction of continuing, again with the idea of providing a complete record so that everyone can see the COMMISSIONER KENNEDY:
You are not suggesting that legal groups are not public interest groups?
MR. LOWENBERG:
I am just reporting they way they came down.
COMMISSIONER KENNEDY:
I just wanted to clarify that for our colleagues in the legal fraternity.
(Laughter.)
groups.
least.
MR.* LOWENBERG:
Ciassed them all as public interesti" So I am not suggesting that they are not in the (Laughter.)
I'm just saying that there was that apparent split, whereas NRDC and the Sierra Club and some of the others which are more popularly---T.ffi.kect** with the environmental movements -- I say popularly in quotations -- however, not saying that they are illegal or anything like that.-- came down in the direction of termination, whereas the groups that are generally associated with legal viewpoints came down in the dirlection of continuing.
And the last major input -- and I say major because I think the GESMO Hearing Board made avery careful analysis
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25 14 and I think it was very helpful to the record, and obviously they have an unusual vantage point having been in the position of hearing the various sides and viewpoints and 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 thorough and careful and good analysis' and they came down ___
in:the direction of deferral or suspension, whichever way you wi:sh to term it.
And their position was that basically Congress has not seen fit to overturn the President's position and they felt that suspension was the proper course of action with all 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?
MR. LOWENBERG:
What I think they mean there, it is going to be difficult to attract the enthusiasm of all the parties to.get a real thorough record from this point on out, number one.
Number two, that undoubtedly --
COM..~ISSIONER KENNEDY: Could I stop there?
I noticed that.argument. I didn't understand it, because if all the utilities in the industry groups, as you suggest, favor ~ontinuing the process; does this suggest they
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25 15 might favor continuing it but wouldn't be very enthusiastic about participating in it?
I don't understand it. If they all wanted to continue, and they are parties, wouldn't they be expected to contribute fully?
Now on the other hand, those who favor suspension or favor termination, would this say that they wouldn't be the willing parties?
MR. LOWENBERG:
- They have said that as a matter of fact. Several of them have.said that they would find difficulty testifying and expending the resources to go through the motions on a proceeding that would be.costly to them --
COMMISSIONER KENNEDY:
Are we not conttibuting to thos*e resources?
MR. LOWENBERG: Not as yet.
COM!1ISSIONER KENNEDY:
Are:we not committed to do so MR. LOWENBERG: No.
COMMISSIONER KENNEDY:
No?
CHAIRMAN HENDRIE:
Didn't the Commission propose some financial assistance and didn't the Commission MR. LOWENBE_RG:
Yes, but it was turned down.
MR. PEDERSEN:
It was not forthcoming --
CHAIRMAN HENDRIE:
The Congress specifically failep to f d.
and we believe we cannot, therefore, offer financial assistance We are offering some procedural assistance?
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25 16 MR. LOWENBERG: At this time we are making copies of the service list for them and things of that nature.
COMMISSIONER KENNEDY:
Financial assistance only.
But we are providing procedural assistance.
MR. MEYERS:
We can't pay for NRDC to fly in from California.
MR. LOWENBERG: Or pay for consultants that they may wish to hire to testify at hearings.
CHAIRMAN HENDRIE:
Legal fees.
MR. MALLORY:
Also the utilities and the industries were not united in favor of continuing.
The Consolidated Utility Group favored deferral.
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 that it is a reasonable proposition to assume that even if it were continued in full blush, there really would be some reluctance on the part of all parties to contribute as fully and vigorously as they might otherwise be expected.
MR. LOWENBERG:
That's exactly true.
MR. MALLORY:
Certainly on a number of parties.
Other parties might participate fully.
But it would appear that the environmental groups have indicated that they probably would not. And some of the
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25 17 industry members have indicated less than full enthusiasm.
MR.SHAPAR:
Their initial position might not necessarily coincide with the facts.
- In the event the Commission decided to continue, then they might decide they wanted to protect their position. So I don't think you can there is a necessary,:one-on-one correlation between these protesta-tions and what*might actually occur.
MR. MALLORY:
Also the enthusiasm might depend on whether it was -- the p~oceeding was aimed at licensing *or not.
CHAIR.MA...~ HENDRIE: That is whether there had been some coii.rilcident Commission decision about what to do about the individual license cases.
MR. MALLORY:
And what decision would be reached in GESMO finally.
CHAIRMAN HENDRIE:
I recall a comment from California, I believe from the Energy Board, which suggested that a positive decision at one end or the other of the spectrum of options ought to be made,and they can see no merit whatsoever to anything in the.middle.
I don't recall uhen which end they preferred.
MR. MEYERS: They just wanted a decision.
MR. LOWENBERG:
They just want someone to say that they are going to do this.
COMMISSIONER KENNEDY: This is associated, probably,
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.25 18 with their own law.
CHAIRT\1.AN HENDRIE:
Could somebody comment on the merits of~- or lack of merit, of feeling a need to steer clear of the extremes.
MR. MALLORY:
California wanted a quick decision either to recycle plutonium or not ever to recycle plutonium.
Arid no one here proposes that that can be done with the kind of speed California would like to see. Even if GESMO is continued it will take some time to decide what to do.
And if anything less than continuation is done, then the decision is even further off.
MR. RATH~UN:
~hey specifically dislike deferral-type alternatives, and cited as substantial uncertainty displayed by the industry, factors such as that.
They wanted some sort of a resolution.
MR. LOWENBERG:
I think their comments, like several others, addressed the decision process in a quasi-theoretical manner, and didn't look at the full practical imolications of how you get to some concluding point.
It was a matter of reaching a fast decision.
It might sound simple to someone writing a.letter, but it is fraught with many problems, in view of all the other work that is ongoing, alternatives and other considerations which must fully be ventilated and considered before a decisional process ~an be finalized.
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25 19 CHAIRMAN HENDRIE:
Okay.
MR. LOWENBERG:
That was another point.
CHAIRMAN'HENDRIE: Okay. That helps me a little bit because my own feeling, I thought about the California Energy Board comment for a while and it seemed to me that they offered us a compliment whichve do not deserve, namely that the Commission if it decided to go forward and decided that plutonium recycle was a national policy, and if we decided not to go forward with GESMO, we decided it wasn't; it struck me that -- it did not appear to me that we quite possess that authority or quite had that role in the national scheme of things.
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.
The last point I think that the GESMO Hearing Board made was, completing the record to some extent in the near future would undoubtedly be somewhat wasteful in the sense that all the ongoing work related to NASAP and INFCE and the*
various alternatives that are being studied in additon to the ones that were originally projected in the GESMO, will undoubtedly involve the need to considerably supplement whatever record is done, and maybe even redo it in the context; plus the fact that the basic size and nature of the industry may
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25 20 change due to the result of these ongoing studies.
And therefore having a record that is documented and clear but doesn't apply, let's say two years from ~ow, would undoubtedly cause a lot of additional work to be done.
And':
they felt that was less than efficient.
That was the last point in the efficiency.
That essentially completes the rundown, broad rundown of the comments.
COMMISSIONER KENNEDY:
Did this take into account the comments of the General Accounting Office in its October 7th statement?
MR.
LOWENBERG:
We didn't list that as a comment 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 comments because it wasn't an official response to our request
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for comments, although it is in their report to Congress.
COM!.'iISSIONER KENNEDY:
It did say --- it didn't suggest making a decision. It said quite the opposite, it said, should defer any irrevocable decision.
MR. LOWENBERG:
Complete the record. And there-again I think it is an oversimplification as to how you complete the record with all of the ongoing work that is going on, and a
record that is spread over several years.
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25 21 C0~1MISSIONER KENNEDY:
Although it did say to expand that record, the scope of the record to include reviews of alternatives.
MR. LOWENBERG:
Their comment actually reinforces our the alternative of defer with the Commission Staff closely following all its ongoing work.
I think it fits into the vein, if you want to get into the discussion of options, that comment really reinforces that particular option, the one of defer and keep pace with all the work and be ready to reach a decision as promptly as possible when all this work reaches a culmination point and is ready for further consideration~
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, I think you should be shooting at something for a target here.
I think it is a useful distinction to keep in mind.
CHAIRMAN HENDRIE: D6 I remember a recent comment by one of the GAO Staff that I have seen, another one of these views that the Commission is compelled by statute to go forward?
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 discussion in the paper.
You have the ootion not to go forward
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25 22 if yo~ choose to exercise that option.
CHAIRMAN HENDRIE:
Well we have been encouraaed to think in various comments, that we either have a statutory duty to go forward and don't have,.an option; or a statutory duty to stop and don't have an optio~.
I guess the collective advice from counsel's office and your office is that neither of those positions' is, in fact, correct.
MR. MEYERS: This is probably a good time to get on the alternatives.
One of the comments made is that any of the alternatives is legally accep~able.
COMMISSIONER KENNEDY:
Before we get there, there are,a couple of more questions about the answers, responses.
Could you give us some feeling for how these
.:answers addressed the Eizenstadt letter, or its mess-age?
What did people have to say about that?
MR. LOWENBERG: Well that again is fairly polarized like the responses were.
There were people that favored the Presidenti;s position and said in effect that we must,you know, reinforce his policy, and not do anything to detract from his initiatives.
On the other hand, the ones that said go forward---
and many of the individuals in that category infer that he was silencing full discussion and the airing of this issue
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25 23 if termination would result because they felt he had made his own unilateral-decision and the country must follow that even though :the issues had not y;et,,been fully aired in the public.
So there was a great polarization on which way you would go.
MR. MALLORY:
I think the industry and utilities generally said that continuing would be in accord with the President's policy of examining alternatives and provide information relevant to that examination.
COMMISSIONER KENNEDY:
So no one is really arguing 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, that it is not phrased as strongly as the President might have phrased it if he really meant us to stop.
Yes, there are arguments that did not mandate it, the language was more gentle, and so forth.
They come closest, as I recall to actually taking on the President.
Even they don't go so far as to say, second guess him as far as policy. But the do quarrel a good deal with the 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
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25 24 enough material in the letter.*
COMMISSIONER KENNEDY:
Do they argue, do any of them argue that to go forward would actually be in support of his policy?
MR. MALLORY:
Oh, yes. But they say that --
COMMISSIONER KENNEDY:
What is their argument?
MR. MALLORY:
Generally that collecting information on this particular alternative would provide information for the alternative studies that are going on.
COMMISSIONER GILINSKY:
Who argues this?
MR.MALLORY:
I think a number of people among the industry, perhaps the GESMO utilities.
COM.MISSIONER GILINSKY:
That::to_*go forward with -
GESMO would be in support of the President's policy?
MR. MALLORY:
On examining alternatives --
MR. RATHBUN:
Indirectly, though, couldn't NASAP end contributions to NASAP, INFCE, things like that?
MR. PEDERSEN:
Going forward with the data collectin part of it.
COMMISSIONER GILINSKY:
Even though the President doesn't seem to think so?
MR. PEDERSEN:
The information would be valuable for INFCE.
COMMISSIONER KENNEDY:
Surely it is not to be suggested that',:that is an unusual state of affairs.
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25 CHAIR'l\1AN HENDRIE:
Further Commission discussion oh the summary of public comments?
COMMISSIONER GILINSKY:
I would like to ask about the
- *.notion of def err al.
Is that.described as being 'indefinite, or is there some specific time interval involved?
MR. MEYERS:
It is tied to whatever decision.
INFCE has made~ completion of the NASAP studies.
In other words, not a date, but the completion of ongoing work.
COMMISSIONER GILINSKY:
Well INFCE has a date,attach d*
to it.
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 when the President makes his decision" with what he wants to do finally with_regard to recycling and reprocessing.
COMMISSIONER BRADFORD:
I suppose there is nothing about the concept of deferral that it can't be tied to any date.
MR.* MEYERS: Right. There is no specific date.
INFCE, NASAP, all these *are tied to providing more information so that one can say finally that we should; or should not reprocess or recycle.
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25 26 MR. NELSON:
I think in addition to::.:the point, the more precise you do it, the deferral, the better from~the litigation viewpoint.
A deferral until never is the same thing practically as terminating the proceeding.
And if there are legal advantages to deferral or, suspension.. instead of termination, the vaguer the commitment of the agency, the more the distinction blurs, and themre we begin to lose those advantages.
So I don't know that I would agree with the view that we can defer with language that effectively never commits the agency to return.
MR.SHAPAR:
But if it is tied to the completion 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 recommendation.
But not to have something in it it seems to me is somewhat more difficult from a litigation viewpoint.
COM.MISSIONER. BRADFORD:
But you,,have also concluded that termination is defensible from a litigation standpoint?
MR. NELSON:
I think so.
Yes.
CO.WUSSIONER BRADFORD:
Is termination any harder to defend than indefinite suspension?
MR.NELSON:
Yes.
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25 27 MR. MEYERS:
There is a degree of logic that favors suspension and deferral as opposed to termination.
COMMISSIONER BRADFORD:
- If indefinite iuspension is the same as termination, why is one harder than the other to defend?
MR. MEYERS:
We are not talking about indefinite suspension.
COMMISSIONER BRADFORD:
We just were a moment ago.
MR.MEYERS:
We have tied it to the INFCE studies, the NASAP studies, and presumably information that would come out of that would allow the President to say something definitive about reprocessing or recycling.
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.
MR. NELSON:
Let me try to clear it up.
I think we are talking about three things:
One --
CHAIRMAN HENDRIE:
Peter, would it be better to attempt to sort out on the point here, or since we inevitably draw to the options and alternatives, io,go ahead and hear a general layout on the paper and then delve back into this?
COMMISSIONER BRADFORD:
Yes.
I*.think in fact the different concepts are reasonably clear.
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I 25 28 How much more difficult-though, do you feel that termination is to defend legally than suspension with a specific date?
MR. NELSON:
Well, I don't know that it is a quantifiable difficulty, Commissioner.
My feeling abo.ut the problem is that insofar as the FCC freeze cases and other analogous authorities are of help to us, they help us more in the ~uspension or deferral pattern than they do in the actual termination, we are through with it, go home type.
So that as a lawyer, I like to see analogies in the case law that might help us.
And I think they are better analogies for us if we call it suspension or deferral, and in fact.do suspend or defer, than if we simply wrap it up and go home.
Secondly, it seems to me that from the viewpoint of persuading the Court"of Appeals,that it has the appearance of responsive agency action to say that we will commit ourselves to look at this problem again when certain things happen-that would make it worthwhile to look at, rather than to say, we wash our hands of it, goodbye.
I think that is less attractive.
So, from the viewpoint of litigation, if I have to defend one of them,and I guess our office will, I would rather defend the deferral or suspension as opposed to outright
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25 29 termination
- MR. SHAPAR:
Which is not to say that we don't think we would prevail on an outright termination.
I think I would add to that that the reasons_you give for either are important.
If the reason, for example, of termir1ation is we think that because te want to wait until the completion*:,of the ongoing studies that the record will.be stale, that is a reasonable basis for*saying you want to terminate, if you want to terminate.
It is also a reasonable basis for deferring Bµt I think the reasons are fairly important, if you want to get into fine distinctions between indefinite deferral 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 same reasons -- well, not the same reasons, essentially the same reasons for either case.
MR.SHAPAR:
My response to that question is that I think the reasons for deferral are better than the reasons for outright termination.
That.is my _personal opinion.
MR. NELSON: I thought._6f a third argument --
CHAIRMAN HENDRIE:
Look, could we go forwc1rd.
What I would like to get on the table, is a summary of the options, possibilities, and then let-us come back into
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25 30 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 Commission's recent order, to.. a discussion of the options before theCbmmission. Keeping once again in mind. that our time is.. limited this morning, I do not propose that the Commission close on the matter.
This discussion will outline for us and provide a framework for us to come back to it next week.
Okay?
Can we dothat?
MR. MALLORY:
Yes.
Our paper discusses: *.six options.
Four of -them were 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 footnote in our previous paper,and one of them is new.
The two extreme options of terminating the GESMO proceeding and denying pending license applications, or continuing GESMO*and proceedings on pending license application are two of the ones that we requested public comment on.
Deferral of further consideration of GESMO and related license applications pending reassessment -of the nation's nonproliferation policy is the third alternative that we asked for public comment on.
And the point at which the Commission might decide to reexamine the issue should be stated clearly.
But whether
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25 31 we talk about it in terms of completion of INFCE and NASAP, or include possible other clarifying points in the nation's nonproliferation policy such as Congressional action, remains tobe determined.
A new option that we presented".in the.paper is sort o a combination between deferring and continuing, and that would be to continue GESMO and proceedings on pending license applications as far as practical~. But when it became difficult to proceed further because the proceedings were getting more into an area that was impacted by the alternative fuel cycle..
studies, then the proceedings might be deferred.until they could be picked up again at some logical point
- I think it is difficult to predict now just where those points would be.
And it might be a matter of indicating that we would continue the studies to the extent possible and recognize the difficulties of -- or the possibility of reaching a conclusion of the proceedings, and simply keeping an ear open in;the other studies.
The fifth alternative, which is the one -- another we put out for public comment, was to continue GESMO.
Well, let me back up a step.
The first four alternatives essentially do similar things to the GESMO proceedings in the pending license application proceedings.
That is not necessary.
The fifth alternative is to continue GESMO in some
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.24 t>.ce-Federol Reporters, Inc, 25 32 form, but to terminate or defer proceeding license applications and this is one that had been put out for public comment.
One form of continuing GESMO that had been suggested by the Staff sometime ago, was to complete the record on health, safety and environment and terminate or defer the proceedings before the safeguards issue was taken up.
The paper discusses a couple of other possibilities in terms of the continuation.
And.the reverse possibility,the last alternative, continuing the license application proceedings, but terminating*or deferring GESMO.
-We think this alternative has some serious legal 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 applications.
MR.
SHAPAR:
And there is a Court Order on that, too.
~
MR. MALLORY:
Yes.
There is currently a decision that bars us from doing that.
CHAIRMAN HENDRIE:
I think you argue, and I agree with you, that this is not a case where one had licensing actions which deal with, you know, a small number of relatively small operations, against a potential large field of such I
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25 33 things.
But rather, each one of these things, :there just aren't going to be that many reprocessing plants, if there are processing plants,and each one of these would be a rather broad sc.ale, or wide scale use of the technology.
MR. :.MALLORY:
Yes.
CHAIRMAN HENDRIE:
It is hard to argue that any one of these licenses is sort of a no, nevermind effect, and wouldn't need a generic -- need the broad consideration MR. MALLORY:
Yes,the Barnwell plant would reprocess fuel from most currently operating reactors.
The Exxon plant would, I think,, at its maximum capacity, would reprocess fuel from all currently operating 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.
CHAIRMAN HENDRIE:
Okay.
Now I encourage the Commissioners to pursue such discussion~as it wants.
COMr:iISSIONER GILINSKY:
On the deferral option, on this number 3, would you be stopping all work for this period?
MR. MALLORY:
The deferral option would mean deferral of Staff reviews and hearings on the licenses and hearings on GESMO:
The studies might conti*nue that would complement or
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25 34 add to the NASAP or INCFE studies.
But they would better be:
tailored to those studies, rather than tailored totrecycling.
COMMISSIONER GILINSKY:
- There is where we would conduct studies that would assist us in our participation in these broader efforts?
MR. MALLORY:
Yes.
Or, if not studies-, at least following closely so that at termination we are ready to take up as quickly as possible.
COMMISSIONER KENNEDY: We could do this whether we terminate it, defer it, or whatever.
We are already committed to do so, are we not?
MR. PEDERSEN: We already are.
COMMISSIONER KENNEDY:
We are already doing that, so it has nothing to do with this decision.
MR. MALLORY:
Yes,! think that is correct.
MR.SHAPAR:
Except that the work product itself might be useful for any resumption of GESMO.
MR. PEDERSEN:
I think you defer and tie it to a resolution of INFCE or NASAP.
The way you loqk at this data, the way you monitor it andw:crj;.ch it would be somewhat different, and you would need some time to take it into conside -
ation.
COMMISSIONER GILINSKY: What would be the signal to pick this up again?
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25 35 MR. PEDERSEN:
I think that is a key point.
There is a little confusion -- not confusion but in the wording in one place it says, defer pending reasses~ment of the nation's nonproliferation policy.
Later on in the paper in the recommendation, it says, defer pending completion of the INFCE efforts.
The two are not necessarily the same.
There may be no reassessment at the end of INFCE, and if there is one it may come along after the' conclusion if it is an announced reassessment.
So I think where you hang your hat here is important.
I think Rich alluded to that, that there are several milestones 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 may come a year or more after the end of INFCE.
INFCE may end with a whimper, and not a bang.
COMMISSIONER GILINSKY:
So what was your suggestion?
MR.PEDERSEN:
My own suggestion would be to defer, but to defer and not tie it to a specific event which may or may not occur.
It may not even be apparent to us 0when it does occur.
COMMISSIONER GILINSKY:
This is an indefinite deferral?
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25 36 MR. PEDERSEN:
I know that creates litigative prob-lerns,and I am *not a lawyer.
But, if we tie it to the end of INFCE, for example, it is not clear that the end of INFCE is going to be a clearly identifiable point.
There are going to be studies dragging in, and --
MR. SHAPAR: But we could defer to that point.
When that point was reached, if we felt it wasn't :,suitable, we could redefer again.
MR. LOWENBERG: The intent of Administration policy -
now what.will -eventually occur is another matter, but the inten is to clearly have a reassessment at some point in time, 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.
COMMISSIONER KENNEDY:
Is it not the Administration' stated policy or stated intention, that the studies are, in fact, the reassessment'?
That is, they are the work:--
MR. LOWENBERG:
To lead to a reassessment.
COMMISSIONER KENNEDY:
-- to lead to a reassessment?
MR. LOWENBERG! That is correct.
That is the intent of the policy.
COMMISSIONER GILINSKY: So in other words, we are waiting for a signal from the Executive Branch?
We are waiting
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25 37 for another letter to say MR. LOWENBERG:
I don't know if it would be in the form of a letter.
MR.MALLORY: I clon 1 t think so.
I think it would be -
MR. LOWENBERG:
It would be a statement of policy that this work has been done, and we now have reassessed.
MR.MALLORY:
I thinkthe Commission will be making its own decision on whether the studies had reached the point, or whether the country's policy had reached the point that i-t should reconsider the deferral.
And we should tie it to as definite a point as possible.
I think I:might differ with Ken on that.
COMMISSIONER GILINSKY: - The President-':s letter urged termination?
MR. MALLORY:
Yes.
MR. LOWENBERG:
Yes.
COMMISSIONER KENNEDY:
What does it say?
MR. MEYERS:
It says terminate.
MR. NELSON:
Uses the words termination of Staff reviews and hearings relating to recycle activities.
MR. PEDERSEN:
My point is that these points we tie to may not be as clearcut as we now think they would be.
Reassessment may amount to silence from the White House, quite frankly, at the end of INFCE.
COMMISSIONER GILINSKY:
Now if we are going to defer
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25 38 should we be writing them again, saying that -we have, on reflection, decided t<b.. diefer instead of terminating and would like to hear from you?
MR. MEYERS:
I think that would be a legitimate thing for you to do.
MR. MALLORY:
I think, on the other hand, the Commission should retain, :should indicate that it will--make its own decision on when things have progressed to:the-point that it should resume its examination.
If, at the time it.appears that a letter to the President would be a aood idea, then that would be how it would go about dec;::iding to reexamine.
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?
MR. MALLORY:
Well, I think that there may be enough definiteness in the end of the INFCE study that we could tie it to that.
Clearly, it might turn out not to be that way, in which case we might -- we would have.committed ourselves to reexamine it at a reasonable time in the future, and not, I think, let it drag on indefinitely simply because the study sort of wound down and down and down, but didn't reach a conclusion.
MR. SHAPAR:
Tied to a reasonable time after the
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25 39 completion of the study*.
COMMISSIONER BRADFORD:
Except the deferral, if it is a deferral undertaken as a result of the letter from the Preside-nt saying what we would read into, in effect, please defer, then you'd think that the restarting should be triggered by some further communication-:from the President.
After all, he is the one who::.said that consideration at this point in time is harmful to his nonproliferation efforts.
Presumably we would want to know at what point in tim he thought that such consideration would no longer be harmful.
And of course we maintain the power to resume the hearing at any time.
I think ihat~_is clear in the legal section 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
- to the President's concerns, you would think that;:the triggering of that for resumption would logically have to be some statement that the concerns have changed.
MR. PEDERSEN:
I would only add to that CHAIRMAN HENDRIE:
I'm~ not sure, Peter, that that's quite the configuration.
The Commission -- let's see,the Board in May of '77, in effect, recessed the proceeding and asked the Commission --
we have heard the President announce a national policy which would suggest that we are not going to reprocess, at least in
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25 40 the near term, and what does that mean for this proceeding?
And the Commission then maintained the proceeding in a suspended condition; debated a good deal back and forth about what to do about it; and finally thought among other things we would ask --
well, the Commission asked for public comment on what to do with it, and decided to extend that comment with specific requests if the President cared to make,:*.
you know, a specific recommendation.
But I don't think there is any implication in the Commission's action, and I haven't regarded the President's letter as sort of being the motivating force, that without the President's letter the GESMO proceeding would be moving strongly forward.
The President announced a different policy, national policy and the Commission responded to it, it seems to me, at
. sometime down the line.
If the President appears to be taking some further action in choosing an alternative under the examinations that have gone forward, then I wouldn't feel the need to write him a letter and say, well. now what shall we do with GESMO.
I would think that the Commission ought to decide what it thinks is necessary and appropriate to do, ad do it.
COMMISSIONER BRADFORD:
That;_ becomes, I -should think, a somewhat chancier proposition to defend legally.
That is, to be saying in effect the C9mmis.sion suspended these
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25 41 proceedings on its own judgment of what the President said in April.
You give relatively less weight to the letter that we then got in October, but we are continuing the suspension of the proceedings based on our own assessment of the needs and demands of the President's policy :,as it now exists.
MR. MALLORY:
I would think we give very* *strong weight to the President's letter COMMISSIONER BRADFORD:
But the more weight you give to the President 1.s letter, the more committed you are to another Presidential communication before you start things up again.
MR. MALLORY:
I don't think that is necessarily true.
CHAIRMAN HENDRIE:
It seems to me that if we take the posture that the Commission is going to either do this or that because we got a letter from the President, we are going to have some difficulty then with the so-called independent statutory status of the Commission as an independent regulatory agency.
Obviously we give weight to the gentleman's views, but we make up our own minds.
COMMISSIONER BRADFORD:
I admit there are a lot of.
semantic shadings that one can put on the weight that one gives -- the extreme you could say we were compelled to
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25 42 do this because it is what the President said.
I don't take it anyone is recommending it in that:posture.
But whether you say, among other things we now know the::.:President's views by letter, but that doesn't make too much
~ifference because we already suspended the proceedings; or
/
whether you say we give considerable weight to the communicatio of the President, I should think would make some difference in terms of the posture that you then go irito court in.
MR. MALLORY :
- I think we can give considerable weight to the President's letter and still determine that -we aren't going to do exactly as he asks.
But the current effect of deferral is the same.
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 that you afford to the President's letter at this point in time in any way governs what the triggering *event**. :for a resumption of the proceeding is later on.
MR. SHAPAR:
"I don It think it is a trigger.
The Commission solicited the Commission's views.
COM!~ISSIONER BRADRORD:.The President's views.
MR. SHAPAR:
I mean the President's views.
COMMISSIONER BRADFORD: Soliciting our own views is a much harder process.
(Laughter.)
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25 43 MR. SHAPAR:
It chose to do that as a matter of discretion.
It got the President's views.
If something*happens in the future I don't view another letter from the President is a trigger in any sense..
I would assume the Commission probably would want to consult with the President; it might want to write the President.*
another letter; it mioht not.
But I wouldn't view it as a trigger, which is a direct response to your question as I see it.
MR.. MALLORY:
I think in addition we view the ongoing studies as another reason for deferral. It is difficult to continue now with these studies ongoing and be 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 would still be in a difficult position trying to finish I
GESMO and make a decision on it with a complete record.
And that is an independent --
CHAIRMAN HENDRIE: I think that is iust riqht.
If, in fact, the President had written back and said, it really makes no difference to me one way or another, decide on your own bases, qood judgment, whether to lift the suspension or continue it, or whatever else you want to do, I 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
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44 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 back and said it doesn't make any difference to me which way 14 you go, and we had kept the thing in suspension, and one of the 15 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:
.23 24 decision?
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Would:pu be on an adequate basis to defend such a Clearly the letter is a plus, but without it would there be a perfectly adequate basis for the Commission to say 25
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25 45 we will continue the suspension of this proceeding?
MR. MALLORY:
I think it would be more difficult to defend.
COMMISSIONER BRADFORD:
As the suspension moved into its third year.
(Laughter.)
MR. MALLORY:
I think it might be adequate.
I guess I would have to say I haven't addressed that particular point.
MR. MEYERS:
If one follows the line of logic, this all is tied to the April announcement on an indefinite suspension or deferral of the reprocessing and recycling, 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,
- chanqe it in some wav.
I think a perfectly logical approach for the Cornrnissi n to take, even absent the President's lette~ would be to await the same outcome of those studies.
COMMISSIONER KENNEDY:
Has the Staff thought at all of supposing -- I'm just purely supposing a suspension and a reopening of the proceeding at some future date after the 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.
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COMMISSIONER GILINSKY:
Which studies*:**aretthese?.
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 1 o 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 16 17 18 19 20 21 22 23 24 in history.
Again reaffirming my view that the greatestt growth industry in the United States is the legal profession.
(Laughter.)
MR. SHAPAR:
My staff has remained relativelv constant, I might remind you..
(Laughter.)
COMMISSIONER KENNEDY:
Only with the due diliqence of the Commission.
(Laughter.)
MR. SHAPAR:
I wouldn't say diligence, I would say intransiqence.
(Laughter.)
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COMMISSIONER KENNEDY:
Fair.
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- 47 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 16 17 18 19 20 21 22 23 above-entitled matter was adjourned.)
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