ML22230A089
| ML22230A089 | |
| Person / Time | |
|---|---|
| Issue date: | 12/02/1977 |
| From: | NRC/OCM |
| To: | |
| References | |
| Tran-M771202 | |
| Download: ML22230A089 (29) | |
Text
- RETURN TO SECRETARIAT RECORDS NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
PUBLIC COMMISSION MEETI NG POLICY SESSION 77-55
- Place - Washington, D. C.
Date - Friday , 2 December 1977 Pages 1 - 25 Telephone :
(202 ) 347-3700 ACE - FEDERAL REPORTERS, INC.
Official Reporters 444 North Capitol Street Washington , D.C. 20001 NATIONWIDE COVERAGE* DAILY
ME.
.31 l "R/mml 2
UNITED STATES OF A..f"1ERICA NUCLEAR REGULATORY COMMISSION 1
3 4
5 6 PUBLIC COM.MISSION MEETING 7 POLICY SESSION 77-55 8
9 Room 1130 10 1717 H Street NW Washington, D.C.
11 Friday, 2 December 1977 12 13 The NRC Commissionrs met, pursuant to notice, at 14 1:45 p.m., JOSEPH HENDRIE, Chairman, presiding.
15 16 PRESENT:
17 JOSEPH HENDRIE, CHAIRMAN RICHARD KENNEDY,COMMISSIONER 18 VICTOR GILINSKY, COM.~ISSIONER PETER BRADFORD, COMMISSONER 19 Howard Shapar 20 R. Minogue R. Jones 21 Lee V. Gossick B. Snyder
- .22 23 Samuel Chilk E. Case
- 24 i..ce-Federol Reporters, Inc.
25
2 P R O C E E D I N G S 2 CHAIR._T\1AN HENDRIE: Okay, we are meeting this
-- 3 4
5 afternoon to hear* a summary from.the Staff "o'f. the Public - Response to Proposed Rulemaking on Criteria and Procedures for Determining Eligibility for Access to or Control Over 6 Unclassified Special Nuclear Material.
7 And, we are ready to go. Since I have some Vugraph s preprints, I assume you have some Vugraphs,and maybe what 9 the Commission ought to do is let you fire those at us and 10 then*we will see if we can 11 MR.GOSSICK: Good.
12 Mr. Jones will lead off the discussion and Howard
- 13 14 15 Shapar will cover the aspects of the hearing.
MR.JONES:
(Slide.)
First, I will give you a chronology.
16 The first Vugraph shows you where we were and wha:.:_:had occurred in the situation starting back in August of 17 1974 when legislation gave us the authority to provide this 18 clearance program.
19 We drafted -- we developed the program, various 20 considerations, alternatives, options The joint ERDA Task 21 Force had an input to this program. The Miller Task Force 22 and our NRR, NMSS, IE Task Force was identified the crucial 23
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25 role of clearances.
And then we presented SECY 76-508 along with the
3 options and alternatives for the Commission to consider 2 publication of this program for public comment.
3 That was done. The public comment period ended.:.in 4 May qf this year.
5 We have analyzed those comments. Many of them 6 requested public hearings; about 25 *percent of them requested 7 public hearings.
8 Arid there were a number of other issues raised in 9 these public comments.
10 General Counsel raised some questions regarding these 11 hearings, and you just recehtly received a memo from ELD-OGC 12 on that subject, which Mr. Shapar will take care of later.
(Slide.)
13 The next Vugraph shows the issues that we considered 14 in~developing the program and the issues that were raised 15 during the public comment.
16 They were essentially the same issues, so we got 17 really no surprises from the public comment~ who is to be 18 cleared, transportation, light-water reactors, their job 19 function, we were setting a precedent in the civilian sector-**.--
20 we knewh.that -- people told us about industry practice -- we 21 knew what that was,. industry does screen employees, they do
.22 perform psychological tests.
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25 The government practice, of course, in many agencies, have used background investigations and psychological tests.
- 4 We considered a graded program, a.one-level clearance 2 versus a two-level clearance. This was addressed in the public 3 comments, also.
4 Many people asked about the physical protection 5 alternatives. --
- do you have to have .:clearances? We considered 6 this. They go together.
7 COMMISSIONER GILINSKY: Can I stop you for a minute?
8 MR. JONES: Surely.
9 COMMISSIONER GILINSKY: Are you lumping together 10 the fuel cycle and reactors?
11 MR.JONES: Yes. We are talking about both here.
12 Now, some of these issues like the second one,
- 13 14 15 application to LWRs, address the point of well, should this be applied to reactors as well as to fuel cycle facilities.
That is one of the issues, of course.
But as I go down through here, I am not really 16 separating them at this point.
- 17 MR. CASE: The proposed rule applied to both.
18 MR. JONES: The proposed rule applied to both.
19 It did not separate them. It was contra~ over and access to, 20 applied to both reactors and fuel cycle facilities.
21 That question, of course, was raised when we were 22 preparing the paper, and it wasLalso raised in public comment.
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25 We addressed the issue of psychological assesssment, structured interviews with alternatives to background
5 investigatiorswith the basis that we might use these instead 2 of, *or as supplements to the background investigations.
3 We were also aware of the number of labor constraints 4 that were involved in this kind of a program and the costs to 5 both the NRC and the licensee.
6 If this program were installed the NRC would have to 7 beef up its staff maybe as much as a dozen or so people. I 8 think you have already had a memo on that from the Comptroller 9 as to:what would be involved for the NRC staff.
10 The guestio.n was also raised as to who pays for 1l this, the licensee, or does the government take care of it?
12 The appropriateness of the criteria, we also
- 13 14 15 considered at some length, and how they were comoatible with the DOE criteria for derogatory information; the same derogatory information, different derogatory information, or different application of the same derogatory information.
16 Then we also considered, and questions were raised 17 on just what kind of value do clearances provide you against 18 insiders, protection against insiders.
19 There were also questions raised and concerns with
.20 the actual legal basis of applying clearances, and of applying
.21 clearances to specific types of facilities; specifically, light 22 water reactors.
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25 Then we also had the impact and interface of access clearances for ::r::cess to the SNM and clearances to access
6 for classified information, what are the interfaces here.
2 In most cases it would be the same people that would 3 be cleared. We would use the same investigative techniques, the 4 same information, but it might be applied a different way 5 because of the different application; one for information, one 6 for special nuclear material access.
7 And then. we :.*recognized the civil liberty impact.
8 The public comments recognized that there were civil liberty 9 impacts. One of the union letters specifically stated that they 10 knew that there was a civil liberty impact, but they 11 felt that this was worthwhile to provide the protection 12 necessary for their workers. These were the electrical wb.rkers
- 13 14 15 in the reactors. This was specifically talking about reactors.
COMMISSIONER*GILINSKY:
you talking about?
What kind of protection are MR. JONES: The protection provided by a clearance 16 to assure that they were reliable peopie working in that 17 reactor. That is.the tone of the union letter.
18 COMMISSIONER GILINSKY: They wanted to be sure that 19 everyone working in there was --
20 MR. JONES: Yes. They wanted to be sure that you 21 had reliable, stable employees working with the union~. That 22 was the International Brotherhood of Electrical Workers 23
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25 that stated that.
Those were the issues that we addressed. We
7 summarized those in the paper SECY 77-486, and recommended mm 2 in that paper that the Commission have hearings to explore
-- 3 4
5 these issues with the public.
Mr. Shapar can discuss with you some of the implica-tions, whatever, having to do with those hearings.
6 COMMISSIONER GILINKSY: You had another slide, I 7 believe.
8 MR. ,JONES: Yes, I have one other slide, if you wish.
9 I haven't said anything* about it.
10 (Slide.)
11 The one on impacts will give you some idea of what 12 the impact of this would be to the industry .
- 13 14 15 This is the impact of the proposed regulation, the full field background investigation, national agency check.
These are the number of people that will be affected 16 in that timeframe, those timeframes given, and the approximate costs. This is approximately a $1000 charge for a full field 17 background investigation, about $30 for a national agency check.
18 COMMISSIONER GILINSKY: These numbers are dominated 19 by the reactor numbers, aren't they?
20 MR. JONES: Yes.
COMMISSIONER GILINKSY: The fuel cycle numbers are 22 presumably about 10 percent of the 23
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25 MR. JONES: There are probably a dozen fuel cycles Vers US some 6 0 reactor S
- 8 MR. MINOGUE: Not only that but many of the people
(
2 in the fuel cycle program already have information-type 3 clearances, that would not require £urther clearances. So I
4 they are very definitely dominated by the rea*ctors.
5 COM..MISSIONER GILINSKY: So they are practically all 6 reactors.
7 MR. MINOGUE: Yes., sir.
8 MR. JONES: Practically all reactors.
9 MR. MINOGUE: Basically all reactors.
10 MR. JONES: But most of the people already are 11 cleared in the fuel cycle facilities.
12 COMMISSIONER GILINSKY: So we are really talking
- 13 14 15 about a reactor clearance program.
MR. JONES:
may be people --
It would apply to all of them. And there 16 COMMISSIONER GILINSKY: But in terms of impact, additional impact?
17 MR. JONES: Additional impact, yes.
18 MR. MINOGUE: Additional impact, that's correct.
19 MR. JONES: And a major number of comments on the 20 rule~ were from utilities.
21 Now if you wish, we can go into some of the other 22 issues, or we can proceed with the subject of the hearing.
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25 CHAIR.MAN HENDRIE: Let me ask about -- one of the sets of comments had to do with the use of research reactors.
I .
9 Let's see. This program would not apply .:..~- what 2 in any event, we are not talking about Department of Energy 3 Research Reactors?
4 MR. JONES: No.
5 CHAIRMAN HENDRIE: But we could be talking about 50,.
6 60-odd university reactors and other civilian research reactors.
7 MR. JONES: Well the way the proposed rule was 8 written, i t stated that those facilities that came . in Part 73 9 would have~:.the clearance applied to them.
10 Our intent was those facilities that had the 11 stringent protection of 73 50 and 60, and that would not include 12 most of - the res.earch reactors.
13 CHAIRMAN HENDRIE: Okay.
14 MR.JONES: Now, when we go into the upgrade rule, and identified specifically the formula quantities and that 15 sort of thing, then you are talking about perhaps only one 16 research reactor left under that rule. So this rule would 17 be worded so that it would be those formula quantity facilities 18 under the upgrade rule and under 73 55 that this would apply to.
19 That was our original thought_in that.
20 So that the small research reactor with the lower 21 quantities would be handled in a separate part of part 73.
22 COMMISSIONER GILINSKY: But the larger research 23
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.25 reactors would be included, the ones that have formula guantitie?
MR.- JONES: Formula quantities, yes .
10
.mm 2 MR. SNYDER: Incorporated irradiated and unirradiated formula quantities if 73 50 is approved, right?
3 MR. JONES: That in the *upgraded rule there is
- 4 5
an exemption for irradiated, 100 rem exemption. Now that is still up in the air and it is still being iliooked at. NRR is 6 evaluating what kind of protection we need on research reactors, 7 what are the consequences and that sort of thing.
8 And I think perhaps Ed Case or Jim Miller could 9 state that better than I can.
10 COM.MISSIONER GILINSKY: Is the theory that we are 11 protecting research reactors against theft of special nuclear 12 material; power reactors. against *sabotage?
- 13 14 15 MR. JONES:
high enriched uranium.
Yes, because the research reactors have COMMISSIONER GILINSKY: So you are not protecting --
MR. JONES: No.
16 NRR is also doing a study on the consequences of 17 sabotage for a research reactor to see whether or what kind of 18 protecEion we need at research reactors from sabotage as well 19 as from theft. Those things are being considered right now.
20 MR. CASE: It is our view, pending the results of 21 this study that ... diversion protection is more than adequate to 22 protect against sabotage on research reactors. We are having 23
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25 a study done to confirm that.
COMMISSIONER GILINSKY:Let's see, you would be
11 protecting some reactors, however, from the point of view of 2 diversion if we had certain quantities of material, but 3 other reactors almost of the same size would presumably posing 4 the same sabotage dangers, wouldsrnt be so protected?
5 MR. JONES: We also have another rule --
6 COMMISSIONER GILINSKY: Or, do<these reactors 7 just not pose much of a sabotage threat at all, and this is 8 something not to worry about?
9 MR. JONES: Th~t is what we are looking at right now.
10 That is what we think right now, but they are ll confirming that, that they don't really pose a sabotage problem.
12 MR. MINOGUE: One of the comments was -- that many
- 13 14 of the commenters stressed was the training type reactor rather than the research reactor, and many of these are the type the sabotage potential was assessed in the past, and I think 15 it is generally regarded as not being of ,significant concern.*
16 COMMISSIONER GILINSKY: Now you would treat all 17 power reactors the same, presumably? You wouldn't tie it to 18 any closeness to population areas or anything like that?
19 MR. MINOGUE: That's right.
20 CHAIRMAN HENDRIE: Why don't we hear from Howard 21 about the hearing aspects.
22 MR. SHAPAR: I will be extremely brief.
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25 In the Notice of Proposed Rulemaking, the Commission indicated that i:fi.:t.here was sufficient public interest in this
12
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3 matter it would consider holding public hearings .
There is a lot of public interest, and consequently Staff suggested to the Commission that a legislative type
_4 hearing be held.
5 There is some question about the form of the Notice 6 of Hearing that went up to the Commission with that suggestion.
7 Jerry Nelson and I sent you fairly .recently a revised form 8 of Notice of Hearing to take into account several suggestions 9
from Jerry Nelson's office.
10
- I understand that there may be some other questions ll about that revised Notice of Hearing-that was sent to you by Jerry Nelson and me. If not, I guess the Commission is in a 12
- 13 14 position now to approve the Notice.*_:-:":
COMMISSIONER GILINSKY:
going forward with the hearing?
We are approving basically I
15 MR. SHAPAR: Yes.
16 COMMISSIONER GILINSKY: We are not dealing here with 17 any particular proposal?
18 MR. SHAPAR: No.
19 The idea of the hearing, of course, is to get further 20 public input so we would have a better data base from which to 21
- 22 select MR. MINOGUE: When the rule was published as a 23 proposed rule, one of the points under consideration was a 24 Ace-Federal Reporters, Inc. possible need for a hearing, and the Commission explicitly 25
13 solicited public reaction on that.
2 A large number of the people that commented suggested 3 a hearing.
4 1 In view of the nature of many of the issues, they 5 are not narrow, technical issues, they, get into bamad 6 questions of public policy, but the hearing would bas*ically 7 be in regard to a proposed rule, one which has already been 8 published.
9 COM..MISSIONER GILINSKY: But we would be going into, th 10 hearing with this proposed rule?
11 MR. MINOGUE: Yes.
12 COMMISSIONER GILINSKY: *There would be commentary
- 13 14 15 on the proposed rule?
MR. SHAPAR: *And a number of specific questio.ns which are outlined in the ;notice.
MR. JONES: The revised Notice that they prepared 16 listed the various issues. There were seven different issues 17 that were identified.
18 MR. SHAPAR: To help set a focus.
19 MR.,-rJONES: To focus the hearing.
20 COM..~ISSIONER GILINSKY: All right.
21
- 22 23 MR. JONES: Commissioner Kennedy has made some comments on changes to this Revised Federal Register Notice.
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25 This memo is November 21.
COM..MISSIONER KENNEDY: Mr. Bradford also made some
14 1 suggestions.
.nun 2 MR. CHILK: Mr. Bradford made some changes to7:t.he Federal Register Notice which we then coordinated with --
3 4 COMMISSIONER BRADFORD: Yes, those are in now.
.5 MR. CHILK: Those are in .
6 It is my understanding that all of y.ou*~'.have 7 approved the changes that have been made by Conunissioner 8 Bradford.
9 CHAIRMAN HENDRIE: Now, let's see. Bob, did 10 Conunissioner Kennedy's and Commissioner Bradford's -- their 11 comments don't run to the same places do they?
12 MR *. :MINOGUE: Not to my knowledge.
- 13 14 15 MR. JONES: I don't know what his comments were, but they are apparently*in here already.
CHAIRMAN HENDRIE: If I talk about the Nelson-Shapar Draft, all right?
16 MR.SHAPAR: Right.
17 CHAIR.J."1AN HENDRIE: Then Conunissioner Bradford has 18 some suggested changes for that. And the Commissioners have 19 all agreed to those.
20 M...~. Sli.~PAR: Right.
21
- 22 23 CHAIRMAN HENDRIE: * :commissioner Kennedy also has some comments with regard to the Nelson-Shapar draft. I know
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25 I have agreed to them.
MR. MINOGUE:
And they don't conflict.
Yes, sir, i:hat is correct.
15 CHAIRMAN HENDRIE: Okay ..
2 Then as far as I know, why is everybody agreed?
3 MR. JONES: The question then that would be raised 4 would be Commissioner Kennedy's fourth comment, that specificall 5 says that the Commission will consider, whereas 6 CHAIRMAN HENDRIE: Wait a minute, maybe there is 7 an intersection.
8 Okay, there is in fact a difference in 9 Commissioner Kennedy's well, the Nelson-Shapar Draft talks 10 about the Commission specifically considering the possibility 11 of entertaining at the close of the hearing, requests to 12 permit cross-examination of particular witnesses on specific
- 13 14 15 fadtual issues, et cetera, et cete~a.
MR.JONES: But Commissioner Kennedy said --
CHAIRMAN HENDRIE: Y,ur amendment was simply to improve the language?
16 COMMISSIONER KENNEDY: Mine was just making it 17 simple, straightforward English to say, yes, we are going to 18 do that, we will consider it.
19 MR. CHILK: I think the Bradford language says the 20 same thing.
21
- 22 23 COMMISSIONE.R KENNEDY: The Bradford language says the Presiding Officer will *decide.
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25 COMMISSIONER BRADFORD: My concern was, it didn't make a lot of sense for it to come up to us again at that
16 point. Tha:this would be something I would be willing to
.nun 2 entrust to whoever was presiding at the hearing rather than have ::the* four of us have to meet on whether or not i t would 3
4 be appropriate to have cross-examinatian:..on matters for 5 which we hadn't been present and weren't at that point terribly 6 familiar with.
7 COMMISSIONER GILINSKY: Who is going to preside over 8 the hearings?
9 MR. SHAPAR: People that you are going to have to 10 select.
11 CHAIRMAN HENDRIE: Presumably a board.
MR. SHAPAR: My reconunendation to you is a board, 12
- 13 14 15 unless you want to do it your.self, and I would think the strains on your time would not permit that.
CHAIRMAN HENDRIE: To db a decent job, it would occupy the Commission essentially full time.
16 MR. SHAPAR: Legally there are many kinds of options**
17 you could use~ Traditionally the way to do it*is a board, 18 but you could a member of the Staff, a hearing examiner, or 19 administrative law judge.
20 But I think experience and past practice on your 21
- 22 23 part would indicate, I think, a board.
CHAIRMAN HENDRIE: I would think so-, would you not?
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25 COMMISSIONER KENNEDY:
assumed i t would be.
I would thin~ so. I
17 CHAIRMAN HNEDRIE: Check down the line here?
.mm 2 COMMISSIONER BRADFORD: Yes.
3 COMMISSIONER GILINSKY: Yes.
4 COMMISSIONER KENNEDY: : It was with that in mind I thought 5 the Commission itself might well wish to -- on the basis of 6 recommendations, of course fromLthe board -- consider whether 7 it ought to pemnitccross-examination and authorize the board 8 or direct the board to ".. go ahead and conduct it.
9 MR. SHAPAR: Traditionally the Commission has 10 reserved to itself the further possible stage of cross-examinati n.
11 But, as Commissioner Bradford indicates, the board 12 is on the ~pot, i t is most conversant with the evidence, and I
- 13 14 15 guess could be relied upon to do a rather reasonable choice with respect to further cross COM.l\iISSIONER BRADFORD: I guess I just wasn I t familiar with that practice,but how many proceedings has that 16 come up in?
17 I mean, does the Commission spend a lot of time 18 worrying about whether cross-examination --
19 COMMISSIONER GILINSKY: Has i t ever come up?
20 MR. SHAPAR: I think the Commission has provided for 21 it twice; GESMO, and of course we haven't gotten to that stage
.22 yet.* in . GESMO, and --
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25 COMMISSIONER KENNEDY:
MR. SHAPAR:
And S-3.
,---<and S-3.
18 l So the Commission is really in the spectrum of 2 experimenting in the Rulemaking:. The Commission has really, 3 I think, gone three or four ways.
4 COMMISSIONER'GILINSKY: Well, let's see, we haven't 5 really dealt with it in S-3, have we?
6 MR.SHA.PAR: We haven't come to*'ihat point.
7 COMMISSIONER GII..INSKY: We haven't come to :.that 8 point.
9 So there is really just GESMO and we never --
10 COMMISSIONER KENNEDY: And we never came to,:.that 11 either.
12 MR.SHAPAR: The question was, what has the
- 13 14 15 Commission outlined as a future course of action in the places where it has done so?
In the places where it has done so, i t has reserved 16 for itself the determination that i t would decide, rather than the board.
17 18 COMMISSIONER KENNEDY: Weil in the place, rather than places. There is just GESMO, is that right?
19 MR. SHAPAR: And S-3.
20 COMMISSIONER GILINSKY: We haven't come to -that in *.S-3.
21 MR.SHAPAR: But that is what i t says in the notice, 22 both of those proceedings, but you haven't come to that point ye.
23 COMMISSIONER GILINSKY: But we didn't decide that on
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19 COMMISSIONER KENNEDY: We decided that-we would 2 consider it when the time came.
3 MR. SHAPAR: The Commission,--
4 COMMISSIONER GILINSKY: No, I thought we would 5 decide by the end of this year, whether we would put ourselves 6 in that posture.
7 CHAIRMAN HENDRIE: You mean of having cross-8 examination?
9 COMMISSIONER GILINSKY: Yes, or does my memo~y 10 fail*me?
11 MR. SHABAR: You think so.
12 (Laughter.)
- 13 14 15 CHAIRMAN HENDRIE: But you are both right.
Howard said was that the notice---
All COMMISSIONER KENNEDY:
- But whatever the Commission decided, i t would make the decision.
16 CHAIRJ\1AN HENDRIE: But the S-3 notice takes note 17 of this possibility, right?
18 MR. SHAPAR: Yes.
19 CHAIRMAN HENDRIE:* So what you are both saying is 20 correct. It is not incompatible, at any rate; you may be 21
- 22 23 both wrong.
(Laughi~er.)
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25 MR. SHAPAR: We approach that with different insights.
CHAIRMAN HENDRIE: I see.
20 COMMISSIONER BRADFORD: I guess maybe if I had S-3 2 to ::think over again I would want to word that the same way as 3 I have suggested doing it here.
But I just can't see it as very productive use of 5 the Commission time to step back and reassert that kind of a 6 control over a hearing.
7 COMMISSIONER KENNEDY: It is essentially a policy 8 question.
9 COMMISSIONER BRADFORD: I guess perhaps I hadn't 10 understood the extent to which the Commission hadn't -- it was 11 just really new ground.
12 MR. SHAPAR: I would say on the other hand, on
- 13 14 15 supporting your position, tbe Commission had really been experimenting in this area, and the one thing they haven't done is ---
(Laughter.)
16
-- it's another experiment.
17 18 COMMISSIONER GILINSKY: Anothea:-, zany . . idea.
(Laughter.)
19 COMi.~ISSIONER KENNEDY: The.one thing it hasn't done 20 is either.
21 COMMISSIONER BRADFORD: In fact it has done none 22 of these things except conceptually,- to lay them out.
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25 MR. SHAPAR: Can I just interject, that really there have been three or four -points in the spectrum of the way the
21 mm Commission has handled its rulemaking.
2 Number one is just notice of comment; number two is 3 a pure legislative _type hearing without even a glint of the
.4 possibility of further add-on cross-examination; then a full 5 adjudicatory type rulemaking such as ECCS; and then .a hybrid 6 that we experimented with in GESMO, which is to offer a follow-7 oh thing if justified in terms of an adjudicatory process .* ,,
8 COMMISSIONER BRADFORD: There is no reason to doubt, 9 is there, that the Licensing Board ;-- of course they can get 10 back to use if they feel uncomfortable -:--- the legal,.guy chairing 11 Licensing Board wouldn't be comfortable deciding whether his 12 record would be enhanced by cross-*exa:r;nination?
- 13 14 15 MR. SHAPAR: I think they would be quite comfortable with it if you say they*will make_ the decision. Beyond that the test is pretty w'ell known. The test is whether or not there are any substantial matters or material fact, that is the 16 traditional touchdown for triggering cross-examination.
17
\
- There don't appear to .be any at this time. from the 18 comments that have been submitted._ They are mainly policy and 19 legal.
20 And so.:for that matter another option-:::the Commission 21 has is to decide right now that it is going to be purely 22 legislative type, and not offer this possibility of further 23 cross-examination.
- 24 Ace*Federcl Reporter~, Inc.. COMMISSIONER GILINSKY: When you said presiding 25
22 officer, did you mean the board?
2 COMMISSIONER BRADFORD: Well, I would guess 3 MR. SHAPAR: A three-man board.
4 COMMISSIONER GILINSKY: Well, there is something to 5 be said for Peter's proposal in that it would mean if we 0 didn't follow it then we would have::to come up, bring the thing 7 up here, we would have to have someone review, and we would 8 have more meetings and recommendations one way or the other.
9 And you know, if you go through all that you might as 10 well hear the whole case yourself.
11 MR.SHAPAR: I think there are more important items 12 on your agenda than that.
- 13 14 15 MR. JONES: If you decide now not to*permit cross-examination, then nobody would have to decide.
COMMISSIONER GILINSKY: That's right, that's the other way to go.
16 MR. JONES: Yes.
17 MR. MINOGUE: There is something else 18 MR. SHAPAR: There is some argument to be made on 19 that point, and that is that if you hold out the spectre of 20 cross-examination it could be argued that when you are dealing 21
- 22 23 with largely policy and legal issues you are perhaps decreasing the amount of participation that you otherwise might get in
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25 the legislative phase.
I emphasize that because I wouldn't say that if
23 the matters were largely questions of fact, but they are not 2 here up until now.
3 So one could make the argument on the other side 4 that if you are going to be telling people if they appear they 5 are liable to be subject to cross-examination, they might not 6 want to invest that time in showing up, which I think is one 7 of the points that -- so those, I think are your options, 8 basically the three as I have described them.
9 COMMISSIONER KENNEDY: It is for that reason, by 10 the way -- (Inaudible.) --just simply by not making it clear 11 that in fa.ct there would be a cross-examination clause requiring 12 that it be brought to the Commission, we would*enhance the
- 13 14 15 likelihood of better participation MR. SHAPAR:
(Inaudible.)
I think to the extent that these people felt more secure, - that *:by merely appearing ~!:,__t_hi~l~_gj,,s*iE *
:-:------------~-
16 tive phase, :Ehey wouldn I t be opening themselves up to- cross-**
- 17 examination, I think one could argue you would get wider public 18 participation.
19 But you know, you are largely in a speculative area.
20 I think the thing to focus on is whether or not you think the kind of issues here are factual issues or not. That 21 7 is :why .. in the briefing we --
22 COMMISSIONER BRADFORD: Granted that is the ultimate 23
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25 test -- I guess I am just more comfortable letting the presiding officer assess the ebb ,and flow of what has come up at a hearing
24 mm a lot better than we can, allow him'.to make that determination
- 2 after the hearing, than I am just assuming that we know in
- 3 advance everything that is going to come up.
4 I mean, who knows as to what sort of thing will come 5 up at the actual hearing. Someone will get on the witness 6 stand, Lord knows what they might say about conditions_* at.~a 7 particular plant or 0 set of plants. that might merit further 8 examination, and that.we can't anticipate now.
9 CHAIRMAN HENDRIE: Okay.
10 I am going to try a recommendation. I recommend 11 that we take Mr. Bradford's proposed direction, change the 12 presiding officer to board, or whatever is appropriate to reflec 13 the fact that we think it may be a board, and I think that 14 is also I sense that*is a decision of the Commission in fact.
15 And I propose that we then go and try this one with 16 the board decidi:ng**whether there should be a cross-examination 17 phase and what its scope should be.
18 How does that strike you?
19 COMMISSIONER GILINSKY: That's fine.
20 COMMISSIONER BRADFORD: T rat's fine.
21 CHAIRMAN HENDRIE: I sort of counted on you, Peter.
- 22 (Laughter.)
23 COMMISSIONER BRADFORD: Well, you did change my 24 1..ce-Fe* Reporters, Inc.
wording.
25
25 (Laughter.)
2 CHAIRMAN HENDRIE: Okay, Dick?
3 COMMISSIONER KENNEDY: Sure.
4 You will make the other changes, right?
5 MR.MINOGUE: Yes.
6 CHAIRMAN HENDRIE: So ordered,..
7 Okay, anything else we need to consider on this 8 matter?
9 MR.MINOGUE: That does it.
10 CHAIRMAN HENDRIE: That I s it;. .
11 MR. SHAPAR: We*better be thinking about a board, 12 I guess"as the next step. I think the General Counsel ought
- 13 14 15 to do it, not the Staff.
CHAIR.i."'1AN HENDRIE:
Thank you very much.
Okay.
16 (Whereupon, at 2:25 p.m., the hearing in the above-entitled matter was adjourned.)
17 18 19 20 21
- 22 23 24 Ace-Federal Reporters, Inc.
25