ML22230A082
| ML22230A082 | |
| Person / Time | |
|---|---|
| Issue date: | 01/24/1978 |
| From: | NRC/OCM |
| To: | |
| References | |
| Tran-M780124 | |
| Download: ML22230A082 (45) | |
Text
RETURN TO SECRETARIAT RECORDS
NUCLEAR REGULATORY COMMISSION
IN THE MATTER OF:
COMMISSION MEETING
DISCUSSIONS OF PROCEDURES FOR STAFF NOTIFICATION
TO BOARDS OF RELEVANT AND MATERIAL NEW INFORMATION
Place - Washington, D. C.
Date - Tuesday, 24 January 1978 Pages 1 - 42
Telephone :
( 202) 3A7 -3700
- ACE - FEDERAL REPORTERS, INC.
Official Reporters
444 North Capitol Street Washington, D.C. 20001
NATIONWIDE COVERAGE* DAILY DI SCU\\IMER
This is an unofficial transcript of a ~eeting of th2 United Ste.tes r:uclear Regulatory Commission held on January 24, 1978 in the Co~~ission'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 review::id, corrected, or edited, and it may ccrntain inaccuracies.
The transcript is intended solely for general informational purposes.
J\\s 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 fi na 1 determinations or
- beliefs. No pleading or other paper ~ay be filed with the Commission in any proceedin9 as the result of or addressed to any state~ent or ai*g~Hnent contained herein, except as the Cornr.iission may authorize.
CR 6173 dav 1
UNITED STATES OF AMERICA
2 NUCLEAR REGULA~ORY COMMISSION
3
4 DISCUSSIONS OF PROCEDURES FOR STAFF NOTIFICATION
- 5 TO BOARDS OF RELEVANT AND MATERIAL NEW INFORMATION
6
7
8 Room 1130 1717 H Street, N.W.
9 Washington, D.C.
10 Tuesday, January 24, 1978
11 The Commission met, pursuant to notice, at 3:15 p.m.
12 BEFORE:
I 13 DR. JOSEPH M. HENDRIE, Chairman
- 14 PETER A. BRADFORD, Commissioner
15 VICTOR GILINSKY, Commissioner
16 RICHARDT. KENNEDY, Commissioner
17
18
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20
21
22
- 23
24 ce-Federol Reporters, Inc.
25 I CR 6173 DAV pv#6 2
P R O C E E D I N G S 2 CHAIRMAN HENDRIE: Okay,.Mr. Case.
3 We have Dr. Volgenau, and others coming
4 in at 3:30. Why don't we kick off and go on this subject.
5 Vic is just outside and will be in momentarily.
6 The subject is further discussions of procedures
7 for staff notification to boards of relevant and material new
8 information, and Mr. Case and Mr. Boyd and his staff,
9 Mr. Rosenthal with the appeals board, Mr. Yore from the licensing
10 panel -- Mr. Boyd is reaCJ.
11 Mr. Shaypar plays a --.
12 MR. SHAYPAR: Minor, unimportant role.,
13 CHAIRMAN HENDRIE: It's your paper, Ed. Why don't
- 14 you go ahead.
15 MR. CASE: Roger will go ahead. He'll go through
16 the paper.
17 MR. BOYD: Let me say at the onset that included over
18 the last two months that the act of notifying boards is much,
19 much simpler than trying to explain anybody, either in writing
20 or orally, how to do it.
21 We've made an attempt in the paper, and I tried to
22 boil that down to a series of viewgraphs to*punch out the sig-
- 23 nificant factors in our consideration.
24 As everyone will recall, back on October 19 we
ce-Federol Reporters, Inc:. --
25 briefed the Commission on the matter of board notification and pv2 3
a proposed general way of including the past practices. The
2 practices, as everybody remembers, were set forth in McGuire,
3 the appeal board decision of McGuire in '73.
4 (Viewgraph is shown.)
5 MR. BOYD: Another aspect of it ~n Vogtle in '75,
6 pointing_out that, in fact, McGuire talks ~o a reporting require
7 ment and not to the boards to decide whether such information
8 would be disclosed that would require significant safety or
9 environmental issues and that would give rise to further con
10 sideration.
11 The Commission, in its North Ana decision, pointed
12 out very specifically and I repeated it on the viewgraph --
13 (Viewgraph is shown.)
14 MR. BOYD: as a quote, that the licensing board,
15 the parties, and the public have a right to be promptly
16 informed of a discovery before staff evaluation of that dis
17 covery and regardless of whether the record is technically open.
18 It's-the guidance of McGuire, Vogtle, and that North
19 Ana opinion that has directed the staff along its past and onto
20 its present proposed board notification practice.
21 CHAIRMAN HENDRIE: Could I ask a question, a minute,
22 since Alan is.here.
23 In the comment in Vogtle which were -- let's see -
24 now, were those yours.or the licenses?
ce-Federal Reporters, Inc. MR. ROSENTHAL: Ours.
25 pv3 4
CHAIRMAN HENDRIE: You said there what you had meant
2 in McGuire.
3 MR. ROSENTHAL: Yes. We've indicated that McGuire,
4 as indicated on the viewgraph, established simply a reporting
5 requirement.
6 (Viewgraph is shown.)
7 MR. ROSENTHAL: And that it was then the responsi
8 bility of the boards on obtaining the information.supplied in
9 compliance with the reporting requirements laid down in McGuire
10 to determine whether or not the safety or environmental issue
11 was presented, was of such significance as to require further
12 consideration.
13 CHAIRMAN HENDRIE: That's a determination left to
14 the boards, and a piece of information filed; and this is quite
15 apart from whether, in filing that piece of information, the
16 staff regards it as relevant material under what will turn but
17 to be alternative 1 here, or simply we happen to get it, we
18 happen to generate it, and thought y.ou ought to have it as an
19 alternative 3.
20 MR. YORE: In McGuire, as I recall it, the board had
21 already finished the. hearing when the applicant changed their
22 quality assurance program, which was one of the issues in that
- 23 proceeding.
24 Is that right, Bob? You were chairman of the board.
,ce-Federcl Reporters, Inc. --
25 VOICE: Yes, Jim; that's correct. The board was pv4 5
writing its initial decision at the time the QA program was 2 changed.
3 MR. SHAYPAR: The timing of it was different, but
4 the principle, I guess, for the purposes of this discussion --
5 MR. BOYD: McGuire established the concept of "rele
6 vant and material new information being provided to the board,"
7 and furthermore made the point that staff and applicant should
8 have the obligation to do this.
9 In Vogtle it says how the board will decide what
10 to do with it. Okay.
11 I 1 d like to indicate on the next chart we were on --
12 COMMISSIONER KENNEDY: *I'd like to ask whether Vogtle
13 modified rather than s.imply extende d the ruling. It seems to
14 be, but you think not?
15 MR. ROSENTHAL: I do not think it was a modification
16 at all. I think it was just making it clear that what McGuire
17 dealt with was the obligation of the staff to report relevant
18 and material information, making it clear what happened with
19 that information was the board's responsibility.
20 COMMISSIONER KENNEDY: So, in the first case, the
21 McGuire case, responsibility for.determining what is material
22 and relevant is placed in the staff.
le 23 MR. CASE: Right.
24 COMMISSIONER KENNEDY: What to do with material and
~ce-Federcl Reporters, Inc.
25 relevant information submitted by the staff, is that a matter
pvS 6
for a board to d~cide?
2 MR. ROSENTHAL: So, too, in Vogtle. Vogtle did not
3 change that. They're both, in my judgment -- both of those
4 decisions are perfectly consistent.
5 COMMISSIONER KENNEDY: Here, it says, on the view-
6 graph,-McGuire established no more reporting requirements. It
7 seems to me it established something more than that. It placed 81 I upon the staff the responsibility for determining what it should
9 report, which is that which is material and relevant.
10 MR. ROSENTHAL: That's right.
11 MR. BOYD: But as I recall, Mr. Kennedy, the words
12 that were used there in that opening sentence are essentially a
13 quote from the Vogtle decision. That it be no.*more than a
14 reporting requirement is taken from the Vogtle decision.
15 You do bring up a point, though, that would probably
16 appreciate an adjunct, and that is also in McGuire. There was
17 a clear point made that, in the event the staff cannot determine
18 whether a piece of information is relevant or material, it
19 should be sent to the board and let the board decide that.
20 MR. CASE: Err on the side of sending it; I think -
21 that's the case.
22 MR. BOYD: And this sort of guidance is what's led
23 us to this present evolutionary position.
24 As an aside, I'd like to point out that since
11.ce-Federol Reporters, Inc.
25 McGuire, back in '73, we were able to identify at least 125 pv6 7
specific example~ of boards notifications.
2 (Viewgraph is shown.)
3 MR. BOYD: We can't comment on whether there should
4 have been 175 or whether there should only have been 100. But,
5 in fact, I think it does establish that the staff since 1973
6 has been following this requirement.
7 I also would point out that we established a formal
8 written-down procedure in 1976, following a Commission meeting
9 back in June of that year, and that the practice was extende.d
10 to consider notifications of board~ in more than one proceeding.
11 Something relevant and material in one proceeding may, in fact,
12 also be relevant and material in other proceeding~, and our
13 procedures covered that at that time.
14 When we briefed the Commission on October 19 --
15 lViewgraph is shown.)
16 MR. BOYD: we pointed out a number of difficul-
17 ties with the present practice. One was the difficulty in
18 trying to establish specific and uniform criteria for judging
19 relevancy and materiality. It ai'so became obvious to us that
20 some sort of followup and recordkeeping system was needed, so
21 that if you supply some information to the board you must at
22 some later time get back with them and properly dispose of it,
23 at least in the view of the staff. This was being done, but
24 it was certainly not being done systematically.
~ce-Federol Reporters, Inc. *-
25 We pointed out, also, the obvious difference in pv7 8
handling internally generated information within the staff, com
2 pard* to the relatively simple matter of handling information tha
3 is provided by applicant, vendors, outside information. That
4 was a problem, I think, in handling things uniformly.
5 We also indicated -- and I think-there was general
6 agreement around this table -- that whatever the new practice
7 is, it should be agency-wide, Now, the term "agency-wide" was
8 used then, and I'm using it now. Probably toward the end of
9 this discussion we will have some points as to what that defini-
10 tion should encompass. But, in any event, it's taken by us to
11 mean the whole staff, not just NRR.
12 There are a number of solutions to the problems that
13 we've had.
14 (Viewgraph is shown.)
MR. BOYD: Some are going to be the specific pro-------------*****
15
16 posals, alternative 1 versus alternative 3, described in the
17 paper. A number of them are independent of the alternative,
18 and I thought r' d focus on these and bring them up.
19 The first one is the strong feeling on the part of
20 the staff, based on the guidance and reactions received to date,
21 that these relevant and material determinations should be inter-
22 preted liberally. I think we get some of that from McGuire,
23 where it was pointed out, as I just said, that if you can't
24 make the determination, *send it to the board and let them make
1ce-Federol Reporters, Inc.
25 the determination.
pvB 9
Anything -- and in trying to come up with a defini-
2 tion we've come across the words that say any new information
3 that could reasonably be regarded as putting a new or different
4 light upon an is~ue before the board or as raising a new issue
5 which the board could inquire into under its sua sponte authorit
6 -- the point is, however we would do this, we would propose,
7 independent of any alternative, to do it very lib.erally. It's
8 obvious that recordkeeping and followup systems should be
9 established, at least -- and as we pointed out in the paper
10 for handling information provided subsequent to the start of the
11 hearing.
12 As you will find out in*this presentation, the staff
13 now proposes a very specific distinction between what it would
- 14 do before a hearing starts and what it would do after a hearing
~5 starts. And we also will make the point, if I don't right now,
16 that prior to this consideration there was no distinction drawn
17 and no guidance given, even though I think there may have been
18 intuitive feeling that we:. were only talking about when does a
end#6 19 hearing start.
20
21
22
23
24 ce-Federol Reporters, Inc.
25 10
CR6173 Frankly, in the staff's deliberation to date HOFF:sp
- 7 2 and in the preparation of this policy paper, we could find
3 no basis to draw this distinction.
4 MR. CASE: No logical basis.
--*** 5 :MR. BOYD: The matter of internally generated infonnatio,
6 we think, as we described in the paper, *can be appropriately
7 handled, and we would draw a line, again, independent of
8 the alternatives, that when we get to the point where the
9 staff determines it is necessary to get more information
10 about*this problem, whether from applicant vendors or
11 what, that now is the time and not before to be providing
12 such internally generated information to the Board.
13 (Slide.)
- 14 MR. CASE: This takes it away from the musings of a person's
15 mind to the point where there has been a collective judgment
16 that it's important enough to ask an applicant how he's
17 soing to handle this problem or has handled it, or we go
18 to a vendor which would represent a number of applicants
19 saying, how do you think that this problem should be
20 handled in your type of design. That would be the trigger
21 point where we think it would reach material relevancy
22 and, therefore, be.sent to the affected applicant. It's
23 a relatively easy thing to administer, and I think it
- 24 makes sense from a technical standpoint.
Ace-Federal Reporters, Inc.
25 CHAIRMAN HENDRIE: It's a fairly low threshold.
11
sp2 MR. CASE: It's a fairly low threshold.
2 MR. BOYD: It would be lower in some cases where
3 there were a draft proposed staff position that we're going
4 forward to our internal RQC review, and we would propose
- 5 with the same sort of logic to get it through such a
6 review before we would have it approved to the point of
7 making it worthy of Board notification.
8 CHAIRMAN HENDRIE: That sounded different.
9 MR. CASE: Usually. But there may be some
10 cases where you decide you have to go ahead and seek a
11 solution to a problem before you can wait for RQC. And
12 then, once you go to the applicant or vendor to get how
13 it's going to be handled or how it should be handled,
- 14 that would be the trigger. In most cases you'd go to
15 RQC before you'd take that action, but I wouldn't want
16 to say in every case.
17 CHAIRMAN HENDRIE: Before you'd go out for
18 more information?
19 MR. CASE: For any information, information
20 that the staff doesn't have left to its own devices.
21 COMMISSIONER KENNEDY: If it decided to get
22 more~irtformation, that would trigger it.
I - 23 MR. CASE: Yes, sir.
24 COMMISSIONER KENNEDY: Whatever the nature Ace-Federai Reporters, Inc.
25 of that information.
12
sp3,, 1 MR. BOYD: It I s got to.. be a mechnism where it
'2 becomes a serious significant -- and if I don't use the
3 word "significant" -- if it's tested in those decisions
4 but once it becomes significant and it takes management 5 attention to decide what to do with it, and that decision
6 indicates that something should be done in.a dispositive
7 way, then we would react, under this sytem, and notify
8 the boards.
9 M:8.. CASE-: Recognize, it's quite. similar to
10 the Albernative 3 situation where we're suggesting where
11 ~e went to an applicant and say in the normal review of
12 the case, we think we have a problem with the way you're
13 proposing this thing. That's the same kind of a trigger
- 14 point, w~ere you're going back to the company based on
15 your evaluation of his information and asking for more
16 information. It's a similar trigger point.
17 CEAIRMAN HENDRIE: Does it include going out to
18 the technical assistance contractors?
19 MR. CASE: No.
20 CHAIRMAN HENDRIE: That's regarded as, in
21 effect, in-house?
22 MR. CASE: Yes.
I - 23 CHAIRMAN HENDRIE: What's clear is, there's 24 been a long struggle to find some mark point in the Ace-Federal Reponers, Inc.
25 consideration of internally generated-matters which 13
sp4 doesn't require great agonizing appraisals for each blasted
- 2 one in order to decide whether it's matured into a relevant
3 and material matter. PJld the difficulty of finding such a
4 thing suggests that if you think this one is workable,
- 5 why, I' rn sufficiently impressed that you think,*you 've got
6 a workable one, sufficiently impressed not to quibble
7 about whether the threshold.level is right or not. It may
8 be a low threshold with a difficulty of finding such mark
9 points.
10 MR. BOYD: We did find a technical issue that
11 at the time we didn't realize we were applying this test
12 to, but in fact as a reaction it was exactly what we did,
13 and it did result, in fact, in a number of boards being
- 14 notified. We hadn't postulated this at that time. It was
15 just our normal reaction in doing business.
16 CHAIRMAN HENDRIE: vkay. Onward.
17 MR. BOYD: I make the point that *it'd help solve thi
18 problem to make it an "agencywide" practice. i-vhen-you_
19 develop a practice, it should be followecfr by.. NRR for its
20 cases and NMSS for its cases, and have all other program
21 and staff offices supply information to these two offices
22 that they consider might be relevant material, and leave
23 it up to either NRR or NMSS to sort the thing out and decide 24 in collaboration with.OELD whether or not to send it forward.
Ace-Federal Reporters, Inc.
25 (Slide.)
14
spS The application of these board notification
2 procedures to a certain extent is also independent of the
3 alternative chosen. As we see it, information would be
4 provided to the licensing board during the course of the
5 proceeding, which is, I would remind everybody, very
6 early in the licensing process under the restructured
7 rules. The board is formed and takes some sort of quasi
8 judicial jurisdiction over the proceeding very early on.
9 It would continue from that point until the issuance of
10 the initial decision. It would*go to the appeal board.
11 Information would be provided to the appeal board during
12 the period of its review, and in fact, to the Commission
13 during the period of its review. And I think there have
14 been some cases where we have done this.
15 Again, there is the pddmt which is already
16 developed that.it would also be independent, and it would
17 have to consider boards J.:.n*. other proceedings if the
18 inf-ormation were relev.ant material to these other
19 proceedings.
20 (Slide.)
21 Another distinction that is drawn in the paper
22 is that between a construction permit and _operating license
23 and an amendment to an operating license.
24 We. feel very comfortably that these procedures Ace-Federal Reporters, Inc.
25 clearly apply to construction permit proceedings on all 15
sp6 I r.elevan.t and material matters. We have made the point, 2 I and I believe Mr. Case did in some of his recent testimony,
3 that an operating license proceedings where one could argue
4
- that it's limited to the issues in controversy or matters
5 raised by the Board, that notwithstanding any information
6.of relevant material to the ultimate safety and
7 environmental issues, the licensing of the plant would be
8 supplied to the board regardless o:f whether 1/4ey' were
9 issues placed in controversy~ And that goes beyond
10 McGuiie, because McGuire just dealt with issues in
11 controversy. But I don't see how the board or a board
12 can exercise its sua sponte responsibility under Indian Point to
13 look at matters beyond those matters it considers to be
14 significant unless it has all the.* faiformation.
15 MR. CASE: T~1e question is, where do you draw
16 the line. The staff is proposing not to draw it between
17 the CPs and OLs but in fact to draw one between OLs and
18 amendment hearings. As everyone appreciates, a hearing
19 with an operating reactor involves a specific issue where
20 there has been the need for a hearing only on that issue,
21 and there the staf£ would propose -- I think, logically
22 to limit information flow to those specific issues
23 considered in the hearing. So we would propose to draw
24 the line at that point.
Ace-Federal Reporters, Inc.
25 CHAIRMAN BEND.RIB: Let I s see. In. OL proceedings 16
sp7 l does this then result in a flow-in to the boards -- in
2 effect, a gratuitous flow of material which would not
3 otherwise occur?
4 MR. BOYD: It would be difficult for the staff 5 to determine that.. ;,,rOw,tng.;to. the board __ ' s sua sponte
6 responsibility from the staff point of view, we can say,
7 yes, this is gratuitous, because we don't think the
8 board's interested in this. But I don't think we're in a
9 position to know whether the boards might be interested
10 in this.
11 CHAIRMAN HENDRIE: Let I s see. Up to the~_tiF.le
12 of filing of the staff's file safety analysis, the safety
13 analysis report at the OL stage, and th1:supplement that
- - 14 immediately follows after ACRS review and so forth, it
15 has been the staff's intention:at least to include within 16 that report everything that it thinks the board ought to
17 think about.
18 MR. CASE: The whole case.
19 CHAIRMAN HENDRIE: In the case in this
20 regime, however, there would, in addition to the staff
21 safety a*nalysis report and its* supplements after the ACRS
22 letter~ being from sort of the beginning of the
23 establishment of the report, a sort of gentle, general
.. 24 Ace-Federal Reporters, Inc. rain upon the proceedings of items coming in that would 25 get classed as relevant material.
17
spB.
- The same is true for construction permits, of
2 course.
3 MR. BOYD: You've explained the next s*lide
4 slightly better than I could, Mr. Chairman.
5 (Slide.)
6 Another distinction to be made on the *application,
7 which, again, is independent of the alternatives, is the
8 consideration of what would do before the start of the
9 hearing, what one would do after the start of the hearing.
10 As we pointed out a little bit earlier, this
11 sort of thinking evolved in this staff study. As far as
12 she staff sees, there is no present distinction drawn
13 between before or after the start of the proceeding, as far_**
14 as staff obligation to notify boards.
15 MR. CASE: Or to start after the hearing.
16 MR. BOYD: Or excuse me -- to start after F the hearing. We are, however, proposing in the event of
18 either alternative selected that routine information flow,
19 whatever it is, before the start of the hearing --
20 (Slide.)
21 -- will not be accompanied by specific relevant
22 material determinations. The staff would make the
23 assumption that the material that it provides in the form
24 of the FES, the site suitability report, the SER, any Ace-F~eral Reporters, Inc.*
25 supplements to its testimony constitute identification of 18
sp9 all relevant material matters and, in fact, the staff
2 assessment of the significance of those matters. It's
3 only after the hearing starts that each piece of information 4 sent.,to.the,.. boards.. would ultimately be followed at the
-- 5 soonest possible time as some sort of staff assessment of
6 its significance.
7 And, I think, implicit in whatever new procedure
8 comes out of this deliberation, the distinction will have
9 to be made between what the staff does before the start
10 of a hearing and after.
11 Putting it another way, I think the Commission
12 has to be in a position to either agree or disagree with
13 us. I think the boards and the panels have to be in a
- 14 position to either agree or disagree with us; that the
15 distinction that we feel we're making that wasn't there
16 before from this and, as you can see in the_. p9-per
17 CHAIRMAN-HENDRIE: Hang on.
18 MR. BOYD: Go ahead.
19 CHAIRMAN HENDRIE: Before the start of the
20 hearing, then -- and I'm not quite sure how that point
21 would be marked. It might be with the.:*filing of staff
22 testimony of something like that.
23 MR. BOYD: Approximately.
24 CEAIRMAN HENDRIE: Not necessarily the banging Ace-Federal Reporters, Inc.
25 of the gavel.
19
spl0 MR. BOYD; Yes; quite so.
2 CHAIRMAN HENDRIE: All right. You would say,
3 look, while these things arise in the turmoil of the
4 staff's general operation in this area and we'll flip
- 5 these out to boards sort of as they come along, and in a
6 given proceeding then you won't have, you know -- here
7 they'll come, plopping one after another on the table.
8 In due time the staff will come in and overhear and put
9 down its safety evaluation report, or SER, its* final
10 environmental statement, its testimony, and so on. And
11 in those documents it will treat the things that it thinks
12 the board ought to pay attention to.
13.MR. CASE: We will have considered all these 14 parts of papers as part of the staff review.
15 CHAIRMAN HENDRIE: If you think any one of
16 these odd pieces that's fallen in during the preceding
17 months is important for::t.he.::.board to consider, you' re
18 mention it over here. If you don't think it's important,
19 you won!t mention it.
20 MR. BOYD: Right.
21 CHAIRMAN HENDRIE: One might then ask, well,
22 okay, why did we put all this extra paper before the board,
23 at least up to this time.
24 NR., CASE:
- Hy answer would be, we considered Ace-Federal Reporters, Inc, 25 that to be in the course o1 our review -- we considered it 20
spll enough to write the applicant a question about it:. and
2 evaluate his answer. So we considered it in our review.
3 Now, whether that's material and relevant
,e 4 material and relevant -- it's anybody's choice as to what
5 it means. I can't find any definition that anybody or the
6 lawyers will stand be!:iind. Some days they tell me "material 11
7 means the same as "material 11 ; the other day, 11 relevant'!
8 means the same as 11 material. 11
9 Of course, it does. You have to deal with all
10 of them.
11 MR. SHAPAR: I suppose there's another reason,
12 if you' re planning to go this route. 'I'he board has just
13 been sitting there doing nothing while the staff is getting
- 14 rea~y, and they are theoretically reviewing the application
15 and getting ready for the case. So I supp9se one could
16 make the argument to getting this information to them
17 would be useful to perform their preparations for their
18 eventual hearing~f the case.
19 I think one could make it reasonable.
20 11R. CASE: I think it is. We'll talk about what
21 we consider to be significant in our SER. If there's
22 another issue that we haven't talked about, we'll have our
23 witnesses there, and the board can ask them, well, what
24 about this --.what did you do with this or that piece of Ace-Federal *Reporters, Inc.
25 information in your review*~- and our witnesses can answer 21
spl2 the question.
- 2 HR. BOYD: As it evolves out of the discussion,
3 the staff in.. the:..~paper takes a view relating to the
,e 4 restructured rules back in 1972. Before that time, as I
5 recall, boards were impaneled very late in the licensing
6 process. It was,.in fact, about that time that they were
7 impaneled very early in the process. Boards are involved
8 very early.
9 Information -- whatever is appropriate,
10 relevant material to them, in our argument, as we'll
11 finally get to it, is that that information should be
12 provided. But early on there is a board.
13 It isn't -- as I tried to point out in the
14 paper, we can't imagine to think about it when the
15 restructured rules were set down in '72, all of this
16 information that we're going to propose in Alternative 3,
17 it was decided to send it to the parties.
18 MR. SHAPAR: There's really a point that's
19 very basic here, and that's we're trying to establish a
20 rationale for what the Commission might want to do.
21 T;:ie sua sponte review system that we have is
-22 pretty alien to almost any other type of administrative
23 agency or the courts. The usual regime is that the
- 24
~ce-FederaJ*Reporters, Inc. parties handle their own controversies and submit 25 evidence they think is important to their case, and the 22
spl3 judge decides it,*or the administrative agency decides.
- 2 The problem here is more difficult, because the Commission
3 has decided -- and I think, wisely -- that the board ought
4 to have.an independent sua sponte rule. In effect, they're
5 acting like ombudsmen*, if you want to use that word. Now,
6 if.. th~y have been given that role, they have to have a
7 data base on which to decide whether or not they want to
8 raise new issues. If we don't give them the data base,
9 then they can't perform the sua sponte review role which
10 the Commission has given them.
11 So the reason for this information is not because
12 any of the parties necessarily think the board ought to
13 get this information and develop their own case and put
14 on,:.their own evidence; they' re giving the board the
15 information as part of the data base that the board needs,
16 presumably, to carry out the sua sponte review role the
17 Commission has created for them, and I think that
end#7 18 distinction is very important.
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24 Ace-Federal Reportersi Inc.
25 173.08.1 23 gsh MR. ROSENTHAL: Mr. Chairman, my silence at 2 this point should not be ~onstrued as acquiescence.
3 MR. SHAPAR: I concur.
4 CHAIRMAN HENDRIE: I might comment.
5 It seems to me that some different conclusion 6 might follow once the hearing is started, the staff has 7 then filed its principal papers, and if it has things 8 that come up after that point, then perhaps what are you 9 going to do with the stuff?
10 MR. ROSENTHAL: My di.ff icul ty is this: under
JI alternative 3, the staff, as has been indicated, would 12 ~ncritically supply the boards with all correspondence 13 and documentation betwBen staff and applicant relevant 14 to the specific application.
15 What relevant to the specific application means, 16 as I understand it, having to do with that reactor.
17 (Slide.)
18 MR. ROSENTHAL: Now I would put it to you that 19 there is absolutely no way in connection with the review 20 of the issues that are presented to us or in connection 21 with our sua sponte review that we can handle that kind 22 of information.
23 A substantial portion of it will have utterly 24 no significance to any issue which, conceivably, could 25 bear upon the ultimate judgment which the licensing or 73.08.2 24
gsh appeal board must make. That ultimate judgment is should
2 the license application be granted and, if so, subject to 3 what conditions?
4 We've already experienced what I. think is the 5 bear tip of this iceberg. Virginia Electric and Power 6 Company, in the last weeks, doubtless, has a reaction 7 perhaps in the view of some, an overreaction, to the 8 events of December. They have started the file with us 9 in the North Anna operating licens~ docket, copies of 10 all of its correspondence. with the staff.
11 In doing it, their lawyer has said that this 12 is being done out of an abundance of caution. He doesnJt 13 think it has any bearing on anything that might come 14 before the appeal board in that docket.
15 As matters now stand, the operating license 16 procedure has not reached the appeal board.
17 We've been confronted _with discussions of a 18 number of incidents that have occurred -- a voltage 19 regulator had some kind of operational problem -- it has 20 taken the time of my technical advisor to go through these 21 letters.that are coming in almost daily to report back to 22 me, I suppose also to my colleagues on that board, as to 23 whether there's any possible significance to any of this 24 information.
25 You multiply that in terms of hundreds, if not 73.08.3 25
gsh thousands of pieces of paper and there's no way in which
2 we can make any kind of meaningful use out of it.
3 I think what we're going to confront is a 4 defeat, as a practical matter, of the reporting requirement, 5 the defeat of it in the sense that certainly, staff is 6 going to report by way of furnishing all of this documentation 7 and critically report to us everything that passes back 8 and forth between them and the applicants.
9 We're not going to be able to come to grips JO with that wealth of material and, therefore, essentially, 11 it's going to be worthless.
12 And if the reporting requirement is going to 13 mean anything, and really mean anything, it seems to me 14 that there has xo be some kind of standard employed for 15 determining whether there is any reasonable basis for 16 concluding that a piece of information has potential 17 relevance to some issue that the board will be called upon 18 to decide.
19 Now the boards, even with their sua sponte 20 responsibilities, are not general overseers of the applicant s 21 conduct. in PJrsuing either the construction of the plant 22 or its operation.
23 That's not the function of the boards.
24 Even with the sua sponte jurisdiction, the boards 25 have a relative rate limited area in which they operate.
73.08.4 26
gsh And a very small percentage of this information will be 2 of any possible relevance to issues which the board might 3 consider.
4 Now there is another way, as I indicated in 5 my own memorandum, that this can be handled, if the 6 Commission so desired, and that is to enlarge the staffs 7 of the licensing board panel and the appeal board panel 8 to add to those staffs a retinue of technical advisors 9 whose function would be to screen all of this material
10 to add to the staffs of the respective panels docket
.11 clerks who handle this material.
12 And I might say in the case, ~t least, of the 13 appeal panel, it might require a considerable extension 14 of our present docket room space, which is barely 15 adequate to handle the material that we now get.
16 I don't recommend that course because I don 1 t 17 think it is necessary.
18 My own judgment is that it is quite possible 19 for the staff to make a judgment with respect to this 20 wealth of material with respect to whether this material 21 is of pGssible relevance to a matter the board has to 22 consider.
23 And I would back that judgment by saying that 24 it has met the test so far as I am concerned. The staff 25 over the last three years, the life of this commission, 173.08.5 27
gsh operating under the McGuire-Vogtle procedures, have been
2 fulfilling their responsibilities along this line quite 3 satisfactorily.
4 I do not believe that there has been withheld 5 from the boards during this period of time any infotmation
6 that was of real significance to an issue that the board
7 had under consideration or the exercise of the sua sponte
8 jurisdiction might appropriately have taken under i~s
9 wing.
10 Now I realize that this has all stemmed from --
.11 CHAIRMAN HENDRIE-: Let m.e stop now and 12 investigate some pieces of that.
13 These comments, most recent comments, would apply 14 to the 125-odd filings that have bEen made by the staff.
15 These include a lot of external material.
16 MR. CASE: Not much, but some internal.
17 CHAIRMAN HENDRIE: Some internal.
18 (Slide.)
19 CHAIRMAN HENDRIS: If the relevant and material 20 standards that you've proposed for internally generated 21 information had been in place, what-J's your guess about 22 the number of items you would send forward?
23 MR. CASE: Certainly more, certainly more 24 internally generated information.
25 COMMISSIONER KENNEDY.: By a factor of what?
!73.08.6 28
gsh MR. BOYD: The point is we're not that
2 systematic in the past in determining -- just look at 3 each piece of information and make a judgment. It's 4 just as it flows. You know, you're stimulated to 5 remember that we have to notify the boards.
6 However, with a systematic practice such as 7 we"re proposing, you would be dsting this information 8 as it flows.
9 Now it"s complicated further by the fact that 10 our past practice did not involve the rest of the agency,
Jl the rest of the s.taff. It involved NRR. And.I think 12 there would be a build-up on internally generated 13 considerations as a result of expanding this ~o encompass 14 the entire staff.
15 MR. CASE: I appreciate what Alan says~ but 16 I simply can-'t jibe ~hat weJve been sending you over the 17 last three years with a material and relevant standard.
18 It just doesn-'t fit. It's not consistently 19 applied, and if I consisten,tly apply it, then I*'m.to 20 alternative 3.
21 Now the problem then is what should be my 22 criterion? I say it's got to be different than material 23 and relevant, because if I use that, you're going to get 24 a lot more.
25 So I need something else. ThatJs my problem.
73.08.7 29
gsh CHAIRMAN HENDRIE: Let's see. Alternative 3 2 didn't really involve relevant and material standards 9 3 did it?
4 MR. BOYD: Prior to the start _of-the hearing it 5 did not. The same is true with alternative I.
6 MR. CASE: Let me examine that.
7 (Slide.)
8 MR. CASE: There-'s.no standard applied once 9 the information is generated. But if I have to ask 10 myself is it relevant and material to my review that I
ll ask the applicant _this question, it-'s got to be, or 12 else I wouldn-'t ask him ~he question. I don-'t 13 fri vo.lously ask applicants why is their des.ign this way 14. instead of that way?
15 It-'s got to be material to my ultimate 16 determination. If it's material to mine, how can I then 17 say it's not material to the board's? JJve got to treat 18 them the same as I treat myself, it seems to meo
19 MR. ROSENTHAL: It's difficult for me.to believe, 20 Ed, that every piece of paper that passes betw.een the staff 21 and the-applicant is deemed by the staff to be relevant' 22 to the question which is before the board, which is whether
23 a construction permit or operating license, as.the case 24 may be, should issue +/-or that facility, and if so, on 25 what terms and conditions?
I 73. 08. 8 30
gsh Now I can-'t believe, for example, that when
2 Vepco informed you and at the same iime informed us that 3 a crane ball had dropped three +/-eet and that a voltage 4 regulator was out of whack, that the staff.regarded that 5 kind of information as being of relevance on the question 6 as io whether Vepco should receive an operating license 7 or no
- I ju s t don*' t think so
- I t may be re l e van t in 8 terms of what the staff does in terms of its dealing with 9 Vepco on a day to day, supervisory basis *. But that-'s not 10 what the licensing appeal boards are about.
. l l MR. CASE: Alan, at that point, I don-'t know
12 whether that electrical thing is.just something wrong with 13 that particular one they've got, or there-'s a generic 14 problem with the design.
15 When I was first told there.,s a problem, I 16 simply don't know what it is.
17 CHAIRMAN HENDRIE: It.,s also fair to recognize 18 that there's been a fair amount of urging of the staff 19 to be liberal in the extreme in the interpretation of these 20 and --
21 MR. CASE: The commission"'s told me, send it 22 first, evaluate it later.
23 That-"s what they told me.
24 MR.* ROSENTHAL: The only thing that really 25 concerns me is that I do not want it to appear that the 73.08.9 31
gsh boards are, in point of fact, evaluating oceans of
2 material in circumstances where the boards aren*'t doing 3 that because, as a practical matter, they can*'t do that.
4 In short, I do not want to be operating under 5 false pretenses. All IJm really trying to convey to the 6 commission is that, as matters now stand, given the 7 staff that we have, there is no way in which it can be 8 properly assumed that the documents that we would get 9 under alterna~ive 3 would be closely scrutinized by the 10 appeal boards or by appeal panel staff members in search 11 of some significant, possibly significant disclosure 12 there in.
1.3 We ju st can*' t do it.
14 So if it.,s coming to us on this basis, it would 15 be, in my judgment, simply a ritual.
16 MR. YORE: I concur with Alan. Just to give you 17 a picture* on how we.,re organized, to send all this material.
18 under alternative 3 to thr.ee member boards, we have never 19 had technical a.ssistance. We, too, have a very small 20 docketroom. We've got two full*-time people and one 21 part-time person trying to control what we.,ve got, and 22 the docket room is bursting
- 23 We think we have the answer to the problem now,
- 24 and that is, we're interested, and the boards are 25 interested, in the final position, final formal position, of 173.08.10 32
gsh the staff.
2 Now the pa per talks to the start of the hearing.
- 3 We don't think this is the correct point to mark it.
4 The final formal position of tha staff on
5 environmental matters is contained in the final
6 environmental statements in the site suitability statement.
7 That/s the time when they evaluate all this
8 material that's g.oing on, all the questions and answer.s.
9 They've assesssd it,.they've evalu~ted it, and they come
lO up with their final position.
l 1 We would say after the site suitability reports
12 are issued, then the boards would like every piece of
- 13 correspondence from that time on; that is, we go to 14 alternative 3 with an assessment attachad to the particular 15 document, or as snon as possible thereafter, because any
16 of that material after that final report has been issued
17 could change the report, might change the report.
18 So we would go for alternative 3 at that point.
19 Now on the health and safety thing, the
20 final formal position of the staff is in the safety 21 evaluation report. Supplement 1 considers everything that 22 the ACRS has brought out.
23 So we say have the alternative I up to the
- 24 issuance of the final health and safety reports. Then after
25 that go into alt~rnative 3 and give us everything.
- 73. 08. J 1 33
gsh Now that 1 s our solution, our recommendation.
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25 I 73.09. I 34 gsh Then we don't have all this flood of mail
2 prior to these final reports.
- 3 MR. CASE: I have no problem with whatever
4 you decid~. But with that proposal, IJve got to know 5 more specifically what, if anything, beyond what the 6 boards presently get before the start of the hearing do 7 they want. Nothing more? Not if the wor-1d falls down?
8 Do they want chloride seams that might be discovered 9 during the course of an applicant'~ geological investigation?
IO Under what Mr. Yore is pro posing, they would 11 get that.
12 MR. YORE: You'd cover that in your reports.
13 MR. CASE: I don't think I would cover that 14 fact.
15 MR. YOREz And if it comes after your final 16 reports, te_ll us about it.
17 MR. CASE: I"'m not.telling you when I find out.
18 That's what the commission told me to do under North Anna.
19 Send it ~irst, r 11 evaluate it later.
20 I"'ve got so many instructions, I can't do it.
21 CHAIRMAN HENDRIE: You're a little overconstrained.
22 That s the problem
- 23 There are some manpower costs associated with
- 24 these alternatives. The ones reported in the staff paper 25 did not reflect an input from the panel in the appeal 73.09.2 35
I gsh board session
- 2 MR. BOYD: Yes, that-,s correct.
- 3 MR. CASE: I must say they were done more for I
4 comparative purposes the way we originally did them, rather 5 than for their absolute accuracy.
6 MR. BOYD: In fact, in our view, it.J's still 7 going to be difficult to see much di+/-ference in impact
8 betw_een alternative and alternative 3, as these have 9 evolved.
10 Certainly, after the hearing, after the start
.ll of the hearing, there's not much difference.
12 CHAIRMAN HENDRIE: We.11, that's not differences
13 between these approaches after the hearing starts, but
14 what is being prop::>sed over here is sort of alternative
15 three-fourths. Lt-'s not alternative 1.
16 The reason is that your alternative requires
17 a relevant and material standard for material to be
18 filed with the boards. And you, under present instructions,
19 would fee.lit necessary to interpret that in a very 20 liberal sense with regard to internally generated
21 information.
22 I assume that all of the external material, even
23 now in effect, goes. Okay?
24 MR. CASE: That's not.so, not before the hearing.
25 CHAIRMAN HENDRIE: Not before the hearing?
73.09.3 36 gsh MR. CASE: They do not get our questions.
- .., 2 Everybody else, all parties to the proceedings but the
3 boards get them.
4 CHAIRMAN HENDRIE: If somebody filed you, --
5 MR. BOYD: There is a difference. We have 6 a slide on this if you'd like to see it.
7 CHAIRMAN HENDRIE: At any rate, that emphasizes 8 the point even more.
9 What I-'m saying is that you don't seem much 10 difference between alternative 1 and 3 because the
Jl difference between them is only that in one you would 12 exercise relevant and material standard and you feel
13 you would have to interpret that so liberally that it
.14 would turn out to be the next thing to everything.
15 MR. CASE: That's correct, sir.
16 CHAIRMAN HENDRIE: What's being said over here
17 is-quite different. It's being said here that that*'s too 18 loose a standard to apply and that there ought to be some
19 suitable standard which would really very much limit the
20 number of pieces of paper over and above the staff-'s 21 final er-ivironmental statement, safety evaluation report.
22 MR. CASE: I think that's what Alan is saying fl> 23 but I don't think that's what Jim is saying.
24 CHAIRMAN HENDRIE: They sounded an awful lot 25 alike to me.
73.0Y.4 37 gsh COMMISSIONER KENNEDY: There was some
2 difference.
3 MR. BOYD: There is a difference that will give 4 us some problem in trying to interpret what Mr. Yore 5 suggests as a way to go. But could I go through a couple 6 of slides that show, I hope, the differences between these 7 alternatives.
8 I have two slides that focus on this. In fact, 9 one deals with before the hearing starts and the other 10 after the hearing starts.
-11 (Slide.)
12 If you focus on the differences before the 13 hearing starts, you find in alternative l today the boards 14 are getting the SA~, the ER, all the amendments, the FES, 15 the site suitability report, our SER, all the supplements, 16 and any hearing-related matters between the parties, 17 discovery hearing-related matters and everything, plus 18 everybody's direct testimony. And all of this stuff is 19 coming during the course of the review.
20 Under alternative 3 before the start of the 21 hearing, we would, of couse, continue all of this and 22 add another pile of information, which we estimated in one
23 particular case to be about 18 inches high.
24 This additional information turns out to be things 25 like questions to the applicant, staff positions to the
73.09.5 38 gsh applicant, meeting memorandum. You have a meeting with 2 the applicant. We indicate what happened and what
3 posi~ions were taken, things like that.
4 There are other staff documents ~hat are 5 generated for one reason or another with the PDR. TheyJre 6 made available to the public, they' re sent to the parties.
7 We proposed under alternative 3 to send these routinely 8 to the board. We receive consultant reports from the ACRS, 9 usually before the ACRS meeting.
10 The opinions of these consultants in these 11 reports, these we propose to retain and so forth.
12 CHAIRMAN HENDRIE: I notice Pve also got a filing
13 from the advisory committee executive secretary that 14 says, look, some of our consultants.report in writing and 15 not always. Some of them report orally. And if you get 16 sort of an odd mix of file consultants reports, sup)X)se 17 the people who think that.a thing is not safe and have 18 said so orally, and all the consultants who say itJs 19 great have said so in writing. And the only things you 20 put in the record are the writing things.
21 You've got a distorted opinion. And the view 22 of the ACRS is youJre much better off dealing with the
23 considered view of the committee in shaking all of this 24 material down, rather than simply filing on the record 25 of the case.
39 gsh MR. CASE:_ But it"s in the public document
2 room. The same material is in the public document room.
3 MR. BOYD: And it has been sent to the staff.
4 COMMISSIONER KENNEDY: You would -have reduced 5 it to some kind of memorandum, wouldn"t you, if you got 6 an oral statement.
7 MR~ CASE: The Chairman is talking about ACRs.*
8 They sometimes report orally their meetings.
9 MR. BOYD: To the committee.
10 MR. CASE: Many of which are transcribed.
11 CHAIRMAN HENDRIE: Look, I'll tell you where
12 I corns out at 10 minu~es after 4:00 in the afternoon.
- 13 The staff has a problem. I at least recognize the problem 14 as a very big one.
15 The licensing staff needs some instructions from 16 the comrni ssion. It-"~- no_w operating under a set of 17 instructions which, as you feel compelled to interpret 18 them, just are very difficult.
19 Now there is a paper here with a couple of 20 alternatives in it, but they are alternatives seen through 21 the staff's eyes. Okay?
22 I would very much like to see what the panel and
23 appeal board point of view might be if it could be reflected 24 as a policy option, to SBe if there is there the possibility 25 of definitions of policy directions which would make sense,
- 73. 09. 7 40 fill all the needs, avoid some of the difficulties.
2 MR. CASE: I "d like to suggest we maybe reverse 3 what we've just done here. I would love to have a proposal 4 from them and see if, in seeing that, whether we think it 5 makes sense and can live with it, as they have reacted 6 to our proposal.
7 CHAIRMAN HENDRIE: I don~t know. What are the 8 practicalities? I'll talk to Jim. He has more people.
9 MR. YORE: Well, I can't argue about that.
10 No, we'll get together. WeJd be happy to do it.
11 You mean get together with Al to try and work up 12 some thing?
13 CHAIRMAN HENDRIE: Yes.
14 MR. YORE: Sure.
15, CHAIRMAN HENDRIE: Which would be either an 16 addendum to, or perhaps worked into, an amended paper, staff 17 paper, which would reflect the views of the manpower costs, 18 because I think those are of interest.
19 It has to deal with problems that the staff has 20 in interpreting in view of the instructions given to date, 21 relevancy and-materiality.
22 MR. YORE: As far as I "m concerned, IJm ready
23 to work to try to come up with something.
24 MR.. ROSENTHAL: I think, if I may say so, 25 Chairman Hendrie~ one of the things that the commission may
173.09.8 41
I gsh have to focus on is the matter of how it regards sua 2 sponte responsibilities of the boards, because I tend to
- 3 think that the staff perceives those responsibilities as
4 being *broader than I frankly perceive them.* And I think 5 this is intimately involved in this whole question.
6 MR. CASE: I agree.
7 MR. ROSENTHAL: Because how much information 8 should be routinely supplied to the board obviously 9 hinges, at least in part, up:>n what the breadth of the 10 boards/ responsibilities are.
11 MR. YORE: This is particularly true with 12 reference to the operating license cases.
13 CHAIRMAN HENDRIE: I think it would be appropriate 14 to address some remarks to that point to see whether itJs 15 practical and whether the commission, in fact, is able 16 to come to a consensus and more precisely define. It may 17 not be. It/ s been a matter which has sort of existed 18 through the years, and I donJt recall it ever having been 19 very precisely defined.
20 MR. ROSENTHAL: You heard Howard Shapar 21 characterize it as an ombudsman role. And I would have to 22 say that while that term is somewhat amorphous, I would
23 have to dispute that that is our role, at least as I 24 presently understand it.
25 And this is one of the reasons why I think that
'73.09.9 42 gsh this is really part of the whole question.
2 MR. CA$E= It's clear our proposal was in that 3 sense that it was an ombudsman-'s role, I believe.
4 CHAIRMAN HENDRIE: Okay. Well, _I would ask 5 for some further work here.
6 By the way, I thought the sex of slides were 7 very good. I'm sorry you didn't get all the way through 8 them, but I think you'll be able to use most of them
9 again.
10 MR. BOYD: You don't need to worry about that,
1 l Mr. Chairman. I found the paper was hard enough to write.
12 But when I got to the point of the proposed instructions
1.3 from the EDO back to the staff, that flowed just 14 beautifully. Then when I got to the point of trying to 15 create the slide, that was the easiest part of it.
16 But I've now come to the point where this is 17 totally. saturated, and we. just reuse. We don't need to 18 work on it any more, as far as I'm concerned.
19 MR. CASE*: We appreciate the time. It-'s a 20 dif~icult subject.
21 (Whereupon, at 4: 15 p.m., the hearing was 22 concluded.)
- 23 24 25