ML22230A100
| ML22230A100 | |
| Person / Time | |
|---|---|
| Issue date: | 08/03/1979 |
| From: | NRC/OCM |
| To: | |
| References | |
| Tran-M790803 | |
| Download: ML22230A100 (78) | |
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RITURN TO SECRIT ARIAT RECOR[)$
NUCLEAR REGULATORY COMMISSION
IN THE M AT TER OF:
PU BLIC MEET I NG
CONTINUAT ION OF DISCUS SI ON OF I SS UES IN RES TA RT OF TM I-1
Piece - Wa shin g ton, D. C.
Date - F rida y, 3 August 1 97 9 Pogesl - 76
Te leph o ne :
( 202 ) 34 7-37 0 0
ACE - FEDERAL REPORTERS, INC.
Official Reporters
444 North Capito l Street W o5 hington, D.C. 2000 1
NATIONWIDE COVERAGE* DAILY CR6299 1
DISCLAIMER
This is an unofficial transcript o"f a meeting of the United States Nuclear Regulatory Commission held on Friday, 3 August 1979 in the Commissions's office~ at 1717 H Street, N. W., Washington, D. c. The meeting was open to public attendance and observation. This transcript has not been reviewed, corrected, or edited,'and it may contain inaccuracies..
The transcript is intended solely for general informational purposes. As provided by 10 CFR 9.103, it is not part of the formal or informal record of decision of the matters discussed. Expressions of opinion in this transcript do not necessarily reflect final determinations or beliefs. No pleading or other paper may be filed with the Commission in any proceeding as the result of or addressed to any statement or argument contained herein, except as the Commission may authorize.
2
UNITED STATES OF AMERICA
2 NUCLEAR REGULATORY COMMISSION
3 PUBLIC MEETING 4
CONTINUATION OF DISCUSSION OF ISSUES IN RESTART OF TMI-1 5
6
7 Room 1130 8 1717 H Street, N. W.
Was~ington, D. C.
9 Friday, 3 August 1979 10 11 The Commission met, pursuant to notice, at 2:25 p.m.
BEFORE:
12*
DR. JOSEPH M. HENDRIE, Chairman 13 VICTOR GILINSKY, Commissioner 14 RICHARDT. KENNEDY, Commissioner 15 PETER A. BRADFORD, Commissioner 16 JOHN F. AHEARNE, Commissioner 17 PRESENT:
18 L.. Bickwi t, S.. Ostrach.
19
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21
22
23
24 Ace-Federal Reporters, Inc.
25 I
I6299.06.l 3 gsh CHAIRMAN HENDRIE: If we can come to order.
2 Our colleagues will join us directly.
- 3 We meet this afternoon, as I had noted previously
4 at one of this week/s mBetings, to continue our discussion of
- 5 the Three Mile Island unit l order and related matters.
6 This i.s a continuation of previous meetings and
~- 7 L_as_sul:!e we don"t need a short notice vote, do we?
8 MR. BI C:(1//IT: No.
9 CHAIRMAN HENDRIE: If you would prefer to have one,
10 we can always
11 MR. BICKWIT: No.
l2 CHAIRMAN HENDRIE: What I would propose to do this
13 afternoon is to see if we can there are two general areas
14 that I"d like to look at. One is to work on through the
15 latest ~emorandum from the counsel.,s office detailing various 16 questions that ought to be answered in the order and
17 offering options and discussion on those.
l8 Secondly, to look at some of the time scale
19 questions and to help in -che latter in case it-' s not handy
20 I know I have to go back and get one. This is Shapar's time
21 scale map out, and I thought it would be useful for purposes
22 of looking at that, if we can get to it.
. 23 Why don~t I throw these over as far as I Know.
24
25 Looking at the option paper for the order, we were 16299.06. 2 4 gsh off and running on page 7 and had started on the title
2 labelled, remaining issues, which is a hopeful sign.
3 As I recall it, we had concluded that that language
4 about the list of actions as provision was not necessary
5 and would not be included. And I think we were about to
6 look at the next item under A, the alternative of removing
7 all the specific actions.
8 We had some discussion along that line. I don,,t
9 know if we concluded it.
10 MR. BICKWIT: I believe we did, Mr. Chairman. I
l I believe that we decided to drop both I and 2 and simply to
12 go with Peter,,s suggestion that we make clear that one of
13 the options available to the'board is not to bring the plant
i4 up..
15 Then you went an to item 3 and decibed to dr~p that
16 as well.
17 CHAIRMAN HENDRIE: Yes.
18 MR. BICKWIT: On the basis of a rather lengthy 19 discussion.
20 CHAIR.MAH HENDRIE: I"'m glad that you remember better 21 than I do. That, on the basis that should we propose to 22 deal with generic requirements on the B&W plants, whether 23 that was by rule-making or by simply commission order, or 24 with consultation and order from Harold, that one could 25 decide whether the specific generic action should apply to 162 99.06.3 5
gsh Three Mile Unit l and be removed from the hearing, in which
2 _ case the commission could issue an order at the time on those 3 items specific to tha~.
4 MR. BICKWIT: That's right.
5 CHAIRMAN HENDRIE: Did we conclude that it wasn--'t
6 necessary to put in that paragraph that that might be
7 considered?
8 MR. BICKWIT: ThatJs right.
9 CHAIRMAN HENDRIE: Ah, yes. We did arrive at the
10 question of psychological distress. We were preparing for
1 l t ha ~
- Le t' s s e e
- To a 11 ow P e t er t i me to f i n d hi ms e l f a cab
12 and get through the tra+/-fic and whatever, rather than launch
13 on that discussion, let me leap to page 11 and the question
1*4 of-financi-al qualifications and see whether we can see what
15 the sentiment of those of us present is there.
16 YouJd asked the question about that and I notice
17 you've recently been thinking about financial qualifications
Id in a more general sense.
19 COMMISSIONER GILINSKY: You like what I thought. I
20 would tie any question about financial qualifications very
21 closely to safety.
22 CHAIRMAN HENDRIE~ Otherwise, it does s.eem to me
23 that that's an appropriate thing to do because otherwise, it 24 wanders. It's just going to wender over the financial ground
25 of GPU and Met Ed.
6299.06.4 6 gsh COMMISSIONER GI LINSKY: Is there anything in the
2 financial situation that gives one concern about safety 3 matters?
4 COiMH SS I ONER AHEARN E: Are you saying that as a
5 general question or a specific question? If it-'s a general
6 question - if it-'s a specific one, it would seem if you
7 have to ask the question --
8 COMMISSIONER GILINS}(Y: I.;.ean, I would specifically
9 say that tha( is the question, the financial qualification.
10 I'm not sure that I would include it at all. But if it were JI to be included, I would tie it specifically to safety concerns.
12 CHAIRMAN HENDRIE: That does require some showing
13 in a contention tha( there was a direct relation.
14 COMMISSIONER.GILINSKY: Yes
- 15 COMMISSIONER AHEAR;*~c:: I-'d go along witi-1 that..
16 (At 2:35 p.m., Commissioner Kennedy enters the room.)
17 CHAIRMAN HENDRIE: I certainly would go with that,
18 and in fact, would vote with you if you wanted to take out
i9 the financial qualifications issue.
20 My feeling is that it-'s likely to be a substantial
21 distraction.
22 Dick, we were looking at the 30th memorandum as a
23 base document. After a little prompting from the general
24 pro~pting, I had discovered tha~ we were up ta the question
25 of psychological dis~ress and decided to allow Peter a few more 6299.06.5 7
gsh minutes to get out from the airport to be able to parLicipate
2 in that discussion from the beginning and move ahead to 3 financial qualifications.
4 Vic has said that his view is that if there is to
5 be a financial qualifications Lssues recited in the order,
6 that it ought to be tied directly to safety rather than sort
7 of general financial qualifications questions.
8 And John and I agreed with that.
9 COMMISSIONER KENNEDY: I agree.
10 CHAIRMAN HENDRIE: In fact, I'd be willing to take it
l I out, as a matter of fact, because I do think it's more apt
12 to be a distraction, a long running distraction in the
13 proceeding than in the issue of real substance.
14 COMM.ISSIONER-KENNEDY:. I must say I had.thought.
-e. 15 a~out the totally theoretical possibility which ohe reads
16 even once in a while in the financial pages of a probl~m of
17 temporary insolvency receivership or whatever might ensue
18 because of the shore-term financial situation, et cetera.
19 I thought, well, now, as a practical matter. how 20 would that resolve 1-;:self in a financial qualifications
21 review. From the safety point of view, maybe not at all.
22 It would be a bit like, you know, the Penn Central 23 matter, where the company was insolvent 1 but so what. It,,.,as
24 simply put into receivership and continued to operate.
CO,\\\\i,[I SS I ONER AHEARNE: ','lou ld you care to des er ibe the 6299.06.6 8 gsh quality of the railroad?
2 COriU;\\I SSIONER KENNEDY: That was true before it became 3 insolvent.
4 CHAIRMAN HENDRIE: I used to ride one of the railroads 5 they owned; namely, the Long Island. And the service after 6 Penn Central went into receivership was indistinguishable 7 from the service before.
8 In neither case did it get much applause from the 9 victims, but it certainly didn't
10 COMMISSIONER KENNEDY: Either the company can operate
11 the plant safely or it can'to It doesn't s.eem to me that
12 its financial situation at that time would have all that
13 much to do with it. And that's for us to decide whether it
14 can operate it safely.
15 So I agre~ with Vic that if you want to just drop
16 it altogether, I think it would be sensible.
17 COMMISSIONER GILINSKY: In the contex'C I suggested
lb licensing reviews, we could drop the financial qualifications
19 review.
20 I think that, given that we haven't done that
21 across the board 1 it's all right to.. throw the issue out 22 al together.
23 I think by the,:. "1me that you get specifically to 24 requiring that someone sho*.*r = direct lin1:c bet1treen financial 25 di..fficulties and safety 1natters, I think --
6299.06.7 9
gsh CHA IR MAN HEN DR I E; But a f a i r l y high t hr es hold on
2 litigation.
3 COMMISSIONER C3 I LINSKY: Put it in the right context.
4 CHAIRMAN HENDRIE: Let's see. I perceive counsel--'s
5 office muttering to itself.
6 COMMISSIONE~ KENNEDY: It doesn*'t know what we--'ve
7 just said.
8 CHAIRMAN HENDRIE: Could we have comment?
9 MR. BICKWIT: Your preference is to confound this
IO issue to the safety question.
l I CHAIRMAN HENDRIE: And try to circumscribe it so that
12 it doesn't become an area where there is just opportunity for
13 endl.ess delay while one crawls through endless piles of
14 financial records and argues the esoterics of wh~t the bond
IS market is likely to be in 1982 or whatever the hell.
16 It just: --
l7 MR. BICK~IT: All right.
18 CHAIRMAN HENDRIE: Some of th_e litigation that has
lY gone on in proceedings and financial qualifications just 20 runs all over the wnole map. It doesn t seem to me that the 2 l language at the top -- we 11, the recommended paragraph on 22 page 12 is quite pointed enough. I think it needs to be 23 more specifically tied ta a clearcut safety issue and ta put 24 some reasonable kind of threshold on contentions! otherwise,
25 this is an endless issue.
16299.06.8 10 gsh MR. BICKWIT: We.ll, in the draft order you've got,
2 the licensee shall demonstrate its financial capability to 3 operate TMI 1 and the TMI 2 complex. That can simply be 4 changed. to: "He sha 11 demonstrate his capability to the extent 5 relevant, his financial capability to the extent relevant to
6 his ability to opera ta D,11 1 safely."
7 CHAIRMAN HENDRIE: O'.c ay. Now does any of this
8 further language in here -- does tr1at do it, A?
9 MR. BICKWIT: That does part of it. And then with 10 respect to the procedures, curtailing of procedures, I might
l l ask Steve to address that.
12 MR. 0STRACH: What we had in mind in the language
13 on page l2 was to leave the board free in consultation with the
- 14 st.aft and parties to adopt procedures less complex than those 15 used in ordinary licensing proceedings, quite possibiy all '
l6 *along the lines of SECY-79-299, which would provide for
l7 presumption of financial qualification upon showing that it is
lB a regulated utility with a sufficiently high bond rating.
19 That would end the issue right there.
20 CHAIRMAN HENDRIE: I/m not sure what the GPU bond 21 rating is at the moment, but I have some doubt that that 22 would clear the issue in this hearing, since the board is free 23 to attempt to develop in consultation, et cetera, appro~riate
24 procedures frc:n tr1os3 3 plo~,/eC in op8rati.~g license
25 proc.eedings, tree to attempt to develop appropriate proceedings f299.06.9 11 gsh different sounds a trifle less directive than I would prefer
2 the language.
- 3 MR. BICKWIT: Shall attempt.
4 CHAIRMAN HENDRIE: How about, the board is directed
5 to develop procedures? What would be the language?
0 MR. BICKWIT: That's fine directed to develop 7 procedures.
8 CHAIRMAN HENDRIE: Instead of just procedures 9 different from those procedures aimed at drawing the issues
IO rapidly to a head.
II Can you think of some words that accomplish that?
12 MR. BICKWIT: I think that that is easily done, yes.
13 What you want is *11 exp~di tious. 11
14 COMMISSIONER GILINSKY: Not 11 expeditious. 11 ~'Jhat you 15 want is that the question be tied closely to safety..
16 MR. BICKWIT: That"s done without any reference to 17 procedures at all. Now if you want something beyond --
18 COMMISSIONER GILINSKY: But you refer to 10
19 CFR 50.33 and so on. I don't knm*1 what"s.exactly in there, 20 but as I remember, there"s nothing much about safety. In
21 fac.t, our whole financial review seems to be unrelated to
22 any consideration of safety.
23 MR. BICKWIT: My understanding is that its entire 24 basis is with respec1: to safety. But you'::e r-ight.
25 COMMISSIONER GILINSi<Y: In that it comes from the same 6299.06.10 12 gsh act. But, you know, it branches from that point and I
2 think one should consider contentions that the financial
- 3 _situation of the company may a.ff e ct the protection of the
4 public health and safety.
- 5 MR. BICKWIT: You resolved that issue. That is done.
6 Now the only question is whether you want any different
7 procedures, procedures different from the ones used.
8 CO~:f?:\\ISSIONER AHEA~NE: If by procedures you mean
9 different than the ones that were used in the rest of the
IO hearing?
11 MR. BICKWIT: No. Different from the ones used.
12 (At 2:45 p.m., Commissioner Bradford enters the room)
13.COMMISSIONER AHEARNE: But the ones already used have 14 bBen already ~ddressed.
15 COMMISSIONER GILINSKY: Why not treat it like any
- other contention. Just keep it narrowly tied to health and 16 17 safety.
l t3 COMMISSIONER AHEARNE: 1**/hat else did you have in
IY mind?
20 CHAIRMAN HENDRIE~ 50.33 F. 50.30, 31.
21 MR. OSTRACH: What we had in mind is that, presently,
22 an applicant can only establish its financial qualifications
23 by ~utting on witnesses to indicate that it can sell its bonds
24 and thet its bonds will sell at such and such a price and that
25 it s going to accumulate so much money by doing such and such 6299.06.11 13 gsh in very elaborate procedures and other parties put on
2 witne~ses and conduct discovery that says, well, they won't 3 be able to sell their bonds at that price and the capital
4 market will be busy that year.
5 COMMISSIONER KENNEDY: The question is so what?
6 COW;\\ISSIONER BRADFORD: All that has a lot more to
7 do with construction, realJ._y, than i..t._does with operation.
8 CHAIRMAN HENDRIE: For orientation, Peter, we kept
9 out the psychology and decided we didn't want to do that
10 without you. So we leaped to finances.
11 COMMISSIONER BRADFORD: I.,.m not sure that you have
12 a firm grasp_of my rel~tive strengths.
13 (Laughter.)
14 COMMISSIONER KENNEDY: Are you suggesting that
15 you would rather ta*L: abouc the financial question than the
16 psychology?
17 COMMISSIONER Bf~ADFORD: Well, I may be equally
18 unqualified.
19 CHAIRMAN HENDRIE: Did you get your luggage, by the
20 way?
21 CO,'itMISSIONER BRADFORD: It was a struggle.
22 MR. OSTRACH: In this case; we would expect the major 23 cash arguments to deal, not_ so much with whether or not they
24 can reise the amount of ~aney necesssry ta a~er3te T~I 1
25 safely, but whether they c~n do that at the same time they/re 62 99. 06. I 2 14 gsh satisfying the cash demands imposed on them from the TMI 2
2 accident. Fixing TMI 2 perhaps would reserve the litigation
-- 3 costs and possible damage costs...
4 That would probably be what the contentions are
5 all about. By suggesting an option of the procedures in
6 SECY-79-299, we were hoping that if the utility was in
7 reasonably sound financial condition, all of that review would
8 be cut out and ~he board would simply accept as an irrebuttable
9 presumption that they could meet those cash demands on them
10 and leave the issue aside.
I I CHAIRMAN HENDRIE: I've got a notion that whether or
12 not this plant ever restarts has got a lot to do with that
13 financial strength.
14 COMMISSIONER KENNEDY: It's a circular. question.
- - 15 CHAIRMAN HEND~IE: So iou can argue 1; on the basis
16 that this would be so if acceptable conditions for restart
17 were determined in this proceeding.
13 MR. BICKWITi Certainly you could argue it on that
19 basis. I don 1 t think anybody would say that you couldn/t
20 take into account the revenues that you would receive from
21 operating this-pfant.
22 CHAIRMAN HENDRIE: Lat's see, 50.33 F, the.application
23 is for operating information sufficient to demonstrate to the
24 cor:1(;*1ission ti1e fit1ancial qualifications of tha applicant to
- 25 carry out in accordance with the regulations of this chapter, 15 gsh Part 50, the activities for which the license is sought, 2 the funds necessary to cover estimated neceesary operating 3 costs if the applicant has a reasonable assurance for 4 obtaining the necessary funds or a combination of the two, 5 et cetera.
6 That's all well and good. But in some ways, 7 litigating that question is different than litigating a 8 question that the financial condition of the company would
9 prevent the safe operation of the plant or would affect the
10 safe operation of the plant in such a way as to make it
11 unaccep~able for a license.
~~~
12 It's the latter question that I think we tentatively
13 agree that ~e would like to focus on, if such a question is
14 to ra~ain in the order.
15 So it's not clear to me that the language here --
- 16
17
18
19
20
21 22
23
24
25 C.H. IJ,:::::,:::, 'if /
DAV/PV
'I 11 II 16 I MR. OSTRACH: This language is intended to require the
11 2 I; licensee to demonstrate the same level of finan<tiial qualifica-
1 3: tions it would have to show to get a new operating license for !
i 4 :1 TMI-2. That was what we were attempting to do there.
11 s ij Now, if the Commission does not wish that, as my impre~-
- !i
IJ 6ilsion is your discussion has been, the reference to 10 CFR-5033-F 711and 5784 would have to be removed. We would replace that with !I
11 8 jl lanugage such as:
I "Financial qualifications to meet the above i!
- I 9 jjdiscussion." The language that Mr. Bickwit used would be more II 10 ;iappropriate in that spot. But our assumption was that when
11 11 ii staff indicated as a subs tan ti ve concern the financial qualifica-!
ii I ii I i *2 jjtions, they wished to indicate that they felt the licensee should:
- I Ii -
13 iishow again an ordinary level of operating license financial I!
i.::. iiqualifications that they I re required to continue to meet through-' "
15 l\\out the entire period of operation.
, I ii I 1 0 Ji 1:
- i CHAIRMA..l'\\i HENDRIE: I am not sure why they plugged it in:.
- a,Did we have financial qualifications
- in the orders on the other II
-id !:plants?
ii., MR. OSTRACH: No, sir.
- 1 20 d MR. BICKWIT: No.
- l 21 1I co~~~ISSIONER AHEAPNE: Of course, none of the other
11
!i 22 iplants were faced with this.
CHAIRMAN HENDRIE: Yeah.
COMMISSIONER BRADFORD: The other area and the one
.-".cs-r-:;,::eral Reoorrers, Inc. :j 25 itvhich concerned me most when I first was interested in putting ii II 1.
11 11 pv2
17 i !
something on financial qualifications in here, was the question
2 Ii of whether the company will be faced with particular constraints 3 or incentives under either the orders of the Pennsylvania PUC, i'
l 4 I or, I suppose, of. the tax laws, given that we have that allega-5 ; tion. And if so, we ought to be aware of these. I don't know '
ij 6\\lthat there is a lot that we can do about it.
.., ! I
I I COMMISSIONER KENNEDY: Are those questions necessarily
8 going to surface and be answered in the context of the review of
9 financial qualifications as it now proceeds under our regulations~
I 10,My guess is: probably not.
11 11 If we want to address those questions -- and I can
12 understand how we might -- the actions or.presumep, actions of
13 :,the public service corrUTiission or pub,lic utilities commission, ii j;
]_; i'.whichever it is, of Pennsylvania. would be very relevant to the
,I 15 1 \\situation. But I am not sure that that would become a matter I!
16 l;which would be explored under the terms of our existing regula-
.. _ j1 1 ; I!
'! MR. BICKWIT: Whether or not it would, this language
'3 :would bring it-in. As I say, we're not entirely clear on the ![
ii 19 Jrxtent to which this* language which I just read -- licensee shall ii 1
I.
II 20 la.emonstrate his financial capability to the extent relevant to ii 211his ability to operate TMI-1 safely -- and whether that is a 22 :~ifferent standard from the standard of our regulations, are not ii
23:entirely clear. But it seems to be the standard that you want. Ii
!i
- 24 :!: COMMMISSIONER KENNEDY: How does it address the ques-Aa,-;:e<:iera1 Reporters, Inc. I; 25~ion we were just t~lking about? How do you see that extrapolate4?
I pv3
18
I MR. BICKWIT: If his financial capability,in demonstra~-i
- 2 II ing his financial capabil.i ty, it seems to me he would have to i l 3 \\I look at various contingencies that would affect it and would hav~ i
- 4 !ito bring that in under the relevancy heading.
5 COMMISSIONER KENNEDY: That's really what we want to
61\\know, why we just asked that.
7 MR. BICKWIT: If that's all you want to know
8 COMMISSIONER BR:z\\DFORD: You could start with that
9 ilsentence and add a second one to it, that his demonstration
10 !I include a, discussion of any relevant provisions in rate-setting
11 II orders.
12 COMMISSIONER AHEARNE: Say that again.
13 COMMISSIONER BRADFORD: You could add a second sen-14 lltence to that provision saying that the licensee should discuss
15 llany provisions regarding the restart of TMI-1 and the rate-setting
16 llorders of any other body. I don't have the exact phraseology.
17III think one could simply make that a relevant issue.
i8 COW1ISSIONER KENNEDY: Is that a matter of litigation?
I
- r !"j COMMISSIONER BRADFORD: Well, let's see. I am j.ust not;
20 jlfamiliar enough with the orders that the Pennsylvania PUC has*
? l 111.. SS"e,::i
-. I... u.' but if they have in some way made Met Ed's rates con-I
- 22 l!tingent upon the operation of TMI-1 by a certain time or under I'
23 '11.... 1certa1.n conditions
CHAIRMAN HENDRIE: I think that currently is the case.
.!'°'"' """'" ~": I 25' COMMISSIONER BRADFORD: That's my understanding. And ifl
- pv4
19 I I i
for some reason what the licensing board does or feels compelle~
I 2 to order is inconsistent with those commissions, then I suppose j
3 that if financial qualifications are relevant at all, they would
4 be especially relevant there.
5 COMMISSIONER KENNEDY: I agree it certainly would be,
6 !but isn't that a matter for the public utilities commission?
7 COMMISSIONER BRADFORD: Partly. The other is that our
8 people just ought to be aware that if they're dealing with a
9 company that for some reason is under considerable financial i
I 10 !pressure to have a particular plant under a particular configura-i I
I 11 tion I by a particular time, that would simply signal to them tha-t 1 I
12 Ith~ t. ought to be a thing that they should be looking out for.
I 13 I think Len is right, that the sentence as it is --
- I 14 COMMISSIONER AHEARNE: Picks it up.
15 COMMISSIONER BRADFORD: Picks it up. And at least 161 1gives the board the basis for further inquiry and gives the par-I 17 ities a framework within which they can raise it.
,I l8 ii MR. BICKWIT: Now, beyond that, do you want to adjust ii i9 i)the procedures in any way or do you simply want to leave that to 11 ii 20 lithe board with this standard? It seems to me we' re running into
21 !difficulty when we talk about procedures in this area..Maybe it,
, I 22 irould be best to leave it alone. I
23 It MR. VOLLMER: I guess I wanted to comment that the
,!.;,,,, Reoonm, ~!. staff originally had in mind in suggesting this -- and I almost
25 ish we hadn't -- the same criteria that we used for operating pv5
license, basically, in recognition of the fact that the plant
2 would be out of service for quite a long time, and the unusual
3 operations associated with TMI-2, I would feel, would be very
4 difficult if the staff was faced with developing new criteria
5 that somehow tied more specifically financial qualifications to i
6 safety of operation. I don't know exactly how we would formulatJ I
I I
I 7 that right now.
sl Perhaps we could do it, but if it were to be done, I
9 would hope we would get some firmer guidance form the Commissioni
10 ! on what our threshold might be.
11 MR. OSTRACH: I agree with Dick. Any party can always
12 file a* reque.st with the director of N.RR for enforcement action
13 J based on the contention that TMI Unit 1, the licensee there,
14 I doesn't meet the operating license level df financial qualifica-
l5 tions. The director then would have to address that question.
16 You know~ we have criteria there. The staff has a lot of
,i I 17 I! experience in determining what that means. Presumably, the II 18 jj,, board does, as well.
- ~ ii,,
11 ii I think that we might be getting into uncharted waters ii 20 ! if we tried to set up new criteria which might be vie\\,red in some I
I 21 l,auarters as somehow less than. ordinary operating license criteriJ ' ~
I 22 lor more narrow for this particular proceeding. I 23 ii i I think, to the extent that time can be saved or use-24 I less I
Ace-Federal Reporters, Inc. I waste avoided, the focus ought to be on making sure that the 25 board knows that it has the discretion that.it always has to 21
keep the financial qualifications and to focus and direct it and,
2 perhaps as an additional measure, instructing it that it is free
3 I to use the scope of review set forth in 70-299, which may enable
4 it to cut out even more material.
5 COMMISSIONER AHEARNE: Steve, that sounds like you feeli I
I 6 that we should not try to advise the board to restrict the I I
[
7 financial qualifications to those aspects that might affect
8 safety.
91 MR. OSTRACH: Yes, sir. I would believe that that
10 I would leave us open to a charge -- and I have in mind, litiga-
11 tion -- a charge that the Co:mrilission did not apply its normal
l2 regulatory standards ori financial qualifications to this case.
COMMISSIONER AHEARNE: Do we apply the normal standards:
l4 of financial qualifications to each restant?
15 MR. OSTRACH: No, sir. But my point is that it could I
l6 be raised in a 2206 request, and we would then have to apply theJ.
17 While you could parcel that out separately, I would see that as
la a confusing matter.
I
,o I '* i CO.tvUvlISSIONER KENNEDY: I am confused about your answer
20!to the question. You*said the answer to the question, "Do we 2l !1nonnally require this kind of review prior to restart," the
\\I 22 1lanswer was "No."
!I
!I [
23 Now, if. that's the case, why would you here -- I I I 24 MR. OSTRACH: I am sorry. What I meant to say was that:
Ace-Federal Reoorters, Inc_
25 as a formal matter there is no: separate investigation begun each
PV7----* *--**
22
time a plant restarts on whether the applicant continues to meet
2 his normal level of financial qualifications. I would assume
3 ! that is done on the basis that there is no reason to change the j
4 determination made whenever he got. his original: operating licen e
5 that he didn't meet that.
6 Now, in this case, staff, by listing this as a sub-
7 stantive concern, indicated some concern about the licensee's
8 financial qualifications. There is obviously an enormous* drain
9 upon the licensee's resources that was not considered when the
10 1 licensee was originally given the T.MI Unit 1 operating license.
1 1 It seems to me that if the Commission is charging its
12 board to consider financial qualifications, the logi~al thing to
13 do is to have that board apply the criteria that the applicant
I 1 is required to meet, anyway. You could ask it to address a dif-14
15 i ferent question, but the licensee still must me.et that standard.
16 It might not have to be proven in the licensing board hearing, i
, - I 11,! but he must meet that standard.
'I l1 tr) i I io !l COMMISSIONER KENNEDY: As a legal matter, do you think
, _ II
' 1 it preferable that you don't look at it in a hearing, or could
20 it be looked at in the same context, the same context as any
21 !1 other restart?
I' 1I 22 !! MR. OS TR~CH : I don't believe that where the financial 1 Ii ii i I I
11 23 \\! qualifications is looked at would be that significant in terms oi I
I I
24 I litigation outcome.
Ace-Fec~ral Reporters, Inc. : I believe there might be concern,potential 25 11' litigation risk, if the only finding on financi~l qualifications pv8
2311
that would be before a reviewing court would be on some cri teri,
2 that are different from the operating license criteria. I
(At 3:00, Commissioner Ahearne leaves room.)
MR. OSTRACH: I would have no problems if there were
5 no financial qualifications inquiry in the hearing, but we had
6 a staff finding that these people do meet it.
7 COMMISSIONER KENNEDY: Then why do we put it in the
8 hearing, which adds only one more series of issues for litiga-
9 tion?
10 I MR. OSTRACH: We didn't, Commissioner. It's a sub-
11 stantive issue proposed by staff.
12 I I believe the Commission.is quite clearly free to leave! I
l'<. ~ this out of the proceeding, and p~rhaps separately dii~ct staff
14 to satisfy itself as to the licensee's financial qualifications
15 before permitting restart.
16 CHAIRMAN HENDRIE: How would that strike you?
17 COMMISSIONER BRADFORD: I would leave it in, just
18 * !because I think this is a case, if there are any cases, in which
10 Ith 1 * ' I e qua i ica f.. h b bl. h d h tions. oug t to e reesta is* e. There as been a 20 \\great deal said and written about Met Ed and GPU's financial con-I
21 l;dition. Unlike your normal restart, this seems to be an area
- I 22 jtha t we ought to inquire into and put away.
2311 ll I would like also to have the issues separate as to
- 24 !, hether the company's ratemaking situation or, for that matter, Ace-Federal Reporters, Inc. I 25 \\*ts tax situation, puts it under any constraints that the NRC i pv9
24
ught to be aware of.
2 COMMISSIONER GILINSKY: It seems to me if you-can show
3 hat the company's financial situation is going to affect the
4 afe operation of the reactor, then there might be something the
5 oard ought to listen to and consider.
6 (At 3:05, Commissioner Ahearne returns.)
7 CO1'1MISSIONER AHEARNE: Are we still on the same thing?
8 CHAIRMAN HENDRIE: We're probing,.along to see where
9 entiment would lie with regard to a prompt decision to take it
ID \\tut of the order, *simply separately advise the staff to satisfy
11 1:1. tself as to the financial qualification issue.
II 12 I COMMISSIONER AHEARNE: That would be like us asking the 13 ~irectors that were an outside party coming in
14 11 COMJ.v:IISSIONER KENNEDY: We would be directing the staff
j 15 ! o satisfy itself, as it would in normal course.
16 1 CHAIRMAJ."\\J HENDRIE: It's part of that, because the staff
17 :1 *. ld b h I exai.,nnation wou e t e same.
18 I I
! COMMISSIONER GILINSKY: It seems to me the staff's
.,.. I I
i 7 examination is wasted time.
- [
20 ii,, CO~uv:IISSIONER KENNEDY: Then we need to go back to
- 1 21 ~teve 1 s point. He would conduct this in accordance with our
22 ll.. fxisting regu_ations..,. Lf those regulations result in reviews
,I i
23 hich, in your view, are not useful, that doesn't get us ru:iywhere.
!ederal Reoorters, ~~- i (At 3:06, Commissioner Bradford leaves room.)
25 COMMISSIONER KENNEDY: So, we need to come back and pvl0
25
find out what it is we want the board to do.
2 CHAIRMA..'1\\J HENDRIE: I think Steve's point __ just is that
3 we have a set of regulations on the book which say certain things; l
4 about financial qualifications. Now, that's a standing condi- !
5 I tion that operating plants have to meet. Presumably, as is
6 pointed out, if somebody suspected that any operating entity
7 was falling into a pit with regard to its financial condition,
8 there could be a 2206 petition that says, 11 Hey, look at them.
9 Shut them down. 11
10 The director of regulation would have to look at it
l 1 and decide whether to grant the petition or have a hearing or 12 ' I
, 'deny it.
13 I In particular, his point is that if we say in this
14 ii. :iProceeding, "Look at financial qualifications narrowly focused
I 15 I on the relation to the safety of the operation of TMI-1," you
16 imay not in that context address whether the operator, in fact, 17!j *.meets the general regulations for an operating license situation, 1
. 8 ji !j I
1 !!which he's supposed to do in any case.
,.~ 1l Ii
17 11 You then expose yourself, Steve thinks, to a litiga-
?Q ;j
- ii
- iltion risk and challenged the finding of the proceeding
?l II (At 3:07, Commissioner Bradford returns.)
- 11 22 I CHAIRMAi~ HENDRIE: -- Especially if we haven't dealt 23 with I whether the plant meets the regulation.
24 ;
Ace-Federal Reporters, Inc. Is that not an.apt summary? I 25 MR. OSTRACH: I wish I had said it myself, Mr. Chairman!. :
I I
I I pvll
26
CO.IYJMISSIONER KENNEDY: The logic seems irrefutable. I I
2 If we're to pursue a.course which is designed to determine wheth~r I
3 or not the basic regulations that you have set out are being met,l i
4 we ought to follow the rules which get you there. If you start I I
5 changing them or setting some different standards, then you 1 d I
6 better ~nave a reason for that. And we have to sit down and
7 describe what that is, I suppose, or direct the board to do so.
8 So, if we're going to pursue this at all, it seems to
91me I would say let's pursue it. My own view is I think that all
10 I needs would be properly served by directing the boards or direct~
11 1, ing the staff to satisfy itself that in fact the financial quali~
I 12 fication requirements have been met.
0R AHEARNE: Would you then exclude it?
COMMISSIONE
CO.IYJMISSIONER KENNEDY: I would.
i 1s I COMMISSIONER AHEARNE: Then that wouldn't be meeting I
16 I,_ 1I! '-ne normal regulations.
11 17 i! COW,IISSIONER KENNEDY: Oh, yes.
ii 11 18 ii CHAIRMAN HENDRIE: Sure, because you weren I t in this !I
11 19 [/hearing -- because of its special nature we could prescribe
"O II 1*
- Ii
-'-
- ii anytning we want in or out of this hearing.
L' :: CO.r,11.vJ:ISSIONER --, Ii KENNEDY: *This plant has a license.
22 CHAIRMAN HENDRIE: A party,,..,rho wanted to litigate the
23! question would not then come necessarily under this hearing, but I
24 I would start with a 2206 petition; right?
Ace-Fedaral Reoorters, Inc. I 25 COMMISSIONER KENNEDY: Right.
pvl2 27
CHAIRMAN HENDRIE: Which the Cormnission can direct be
2 consolidated into this proceeding or not, as we wished; true?
3 MR. OSTRACH: In effect, as I understand what
4 Commissioner Kennedy said, he would be directing the staff to
5 make the same finding. It would make, if a 2206 reques,t were
6 made right now.
7 COMMISSIONER AHEARNE: But you would also exclude it
8 f ram the hearing?
9 MR. OSTRACH: Yes, sir. There* is no requirement that
lO j there be a hearing on all 2206 requests. The Commission main-
1 11 !ltains the discretion to have staff handle it.
12 COMMISSIONER AHEARNE: So, Steye th~n takes this from
13 the area from something that is a litigation risk to something
!i 14 !1 that it not a litigation risk, to have the staff look at the
15 issue.
16 MR. OSTRACH : The difference is that there is a li tiga~
17 Jltion risk if the only finding that the Cowmission has is a find-
18 jjing based on criteria different than the regulations, Whether
- " 11 if 11or not the board makes a finding on a narrowly focused financial i!
20 !\\qualifications matter is not itself a litigation risk, as long
2l \\, as either the board or the staff makes an explicit finding that 'I 22 !!the requirement in the regulations for financial qualifications ii ii 1ha-.,y~ been met. You could have both done, if you wished.
end#7 23 \\
24 I Ace-Federal Reoorters, Inc.
25 62 99. 08. 1 28 esh C~e possibility to be would be to provide that the
2 staff woul.d make such a finding, a regulatory finding.
3 Furthermore, if a party wished to enter as an
4.additional content.ion in the h_earing some narrowly focus.ed
5 demonstration on(financial qualifications affecting safety 9
6 the board could apply normal criteria to deciding whether or
7 not to allow that as an additional contention.
8 I would have no problem with that.
9 COMMISSIONER KENNEDY,; It seems to me that.J's sort of
10 a middle ground reasonable propositiono
1 I MR. 0STRACH: That way the board would not be
1 2 requited to satisfy itself about the general subject of
13 financial-qu.alif.ications. It would look at whatever it
14 decided was an appropriate contention.
15 CO Miv\\lSS !ONER KEl\\fNEDY: But it would do that on the
16 basis of the staff.J's certifications as to financial
17 qualifications, presumably.
18 MR. 0STRACH: On the assumption that such a
19 certification woul.d be made, yes.
20 C0WJ,\\LSSI0NER KENNEDY: My pre.sumption was in going
2 l this route, we would also have elected to instruct th_e_ staff.
22 MR. 0STRACH: Yes. They wouldnJt nece.ssarily be
23 sequential. Staff would be satisfying itself during the
24 course of the hear.ing.
25 COMM I SS !ONER KENNEDY.: Right.
6299.08.2 29
~sh COMMISSIONER BRADFORD: Let_,.s see, Steve. What would
2 you then do if a party raised as a contention the blanket one
3 that the licensse was not financially qualified?
4 COMMISSIONER KENNEDYJ I-"m sorry, Peter.
5 CClMMISSIONER BRADFORD: Supposing, then, the staff
6 was satisfying itself separatsly on the subject~ Supposing a
7 party to the hearing came in and_ said that this company isn_,.t
8 financially qualified in one of its contentions within the
9 meaning of the relevant sectio~s of the regulations.
JO MR.. OSTRACH.: I would assume the board would not
11 accept such a contention just as it would not accept the
12 contention that the applicant does not meet the ECCS
13 regulations, or some other matter thqt the commission has not
14 told it to consider.
15 I am assuming that the direction to the board would
16 be somsthing similar to the language on page 12, except that
17 where it now says 7 J'shall employ the financial qualifications
18 criteria," it would be much more narrow and say 9 11 the board
19 shall decide whether to adm_it a contention tying it to
20 some sp-ecific showing of safety-related risk. 11 21 COMMISSIONER BRADFORD: I think if it_,,s worth asking
22 the staff to satisfy itself, then it_.s also worth permitting 23 the basis for the staff 1 s satisfactio~ to be examined in the 24 hearing.
25 CHAIRMAN HENDRIE: You_.d keep it broad?
62 99. 08.3 30 esh COMMISSIONER BRADFORD: Yeah. I would keep 1 I gue.ss,
2 more or less the proposition that Steve and Len.originally
3 had. I thought. your language was okay 9 and in fact, I think
4 as an abstract matter, it is. But I respect the point that
5 it maY somehow be seen as belng different from what the
6 regulations require.
7 COMMISSIONER AHEAP.NE: By 0 orig.inal 11 again 9 you mean
8 as on page 12.
9 COMMISSIONER BRADFORD: Yes..
10 CHAIRMAN HENDRIE: Okay, Pet er-' s keeping.it bro ad.
J I You would accept the proposition to them at the hearing issues
12 on financial qualifications to those tied tightly to safety
13 with. the dire'ct ion ~-
14 C0MMI*SS I 0NER KENNEDY: v'Hth the direction to the staff 15 to make a finding as to the regulations.
16 COMMISSIONER AHEARNE: \\Hll you also direct the staff
17 to make_a finding?
18 COMMISSIONER GILINSKY: I don_,,t know if I would do
19 that.
20 COMMISSIONER AHEARNE: U'm still ha_ppy with Len-'s
21 sentence, which is the tie-in to safety.
22 CHAIRMAN HENDRIE: Is that the same?
_...., ?~ COMMISSIONER AHEAP.NE: That_., s the one that focuses
2-4 so narrowly.
25 CHAIRMAN HENDRIE: In the hearin~?
fl 6299.08. 4 31
-sh COMMISSIONER AHEARNE: Yeah.
2 CHAIRMAN HENDRIE: Then I presume that you don-'t
3 have a problem with the staff satisfying itself.
4 COMMISSIONER KENNEDY: If you do that, I don.;' t_ think
5 anything is a_dded by asking the staff to do that I is it?
6 If you pursue the langua~e, which counsel has
7 suggested, there-'s no higher except duplication.
8 CHAIRMAN HENDRIE: But I thought Len-'s safety
9 language thing, whatever that language may be, is intended_to
10 focus financial qualification issues and make them be related
J l directly to safety. And that seems to me to be identical
12 to the corresponding part of the other proposition, *vhich was
13 a two-part one saying, yeah, hearing issues-* the rest~icti6n
14 is that way 1 but in andi t io*n
15 COMMISSIONER KENNEDY.: Is that your understanding?
16 CHAIRMAN HENDRIE.: But in addition, staff has
17 sat i.sf ie d it s e 1 f
- 18 MR. BICKWIT: That wasn't my understanding when
19 I read it. But there-' s no problem with adding to it. So
20 staff would make that determination.
21 COMMISSIONER A.HEARNE: It is neither -required, nor 22 incons is tent.
23 MR. BICKWIT~ That-'s right, it is not.
24 CHAIRMAN HENDRIE: Let's see. Then somebody be~ter 25 start over and instruct me.
I 6299.08.5 32 esh COMMISSIONER AHEARNE: Y~hy donJt. you read your
2 sentence again?
3 MR. BICKWIT: The licensee shall demonstrate his
4 financial capability to the extent relevant to his ability to
5 operate TMI 1 safely.
6 CHAIRMAN HENDRIE: That would be in the list of 7 short-term --
8 MR. BICKWIT: ThatJs right.
9 CHAIRMAN HENDRIE: -- items. Would there then be 10 a procedural discussion paragraph?
11 MR. BICKWIT: You never resolved that. ThatJs one
12 question to resolve. And then in addition, you now have 13 the question, do you w~nt staff to independently ma~e the
'1f I...,. judgment?
- 15 CHAIRMAN HENDRIE: ~ell, let~s see.
16 COMMISSIO:'!ER AHEARNE: In the absence of our asking 17 the sta_ff, would th3y norma_l.ly make that judgment.
18 MR. BICKWIT: I believe that they would not.
19 COW!iISSIONER AHEARNE:: You *11ould say th-~t n:;r-:nally,
20 in reviewing whether a plant goes up, they would not check
21 to see whethBr the regulations are satisfied.
22 MR. BI CKWI T: I would assume they would not. I would 23 assume that they would not look through all the conditions
24 for operating a plant end see whether they~re all still met,
-- 25 COMMISSIONER AHEAR.NE~ Thet could 8e a fairly infor':lal 62 99. 08. 6 33 statement.
2 MR. OSTRACH: I think it"s fair to say that whenever
3 staff is confronted with any reason to believe that a previous
4 finding of complianc.e with the regulations is no lon.Jer --
5 (Laughter.)
6 COMMISSIONER KENNEDY: That makes his statement
7 quite accurateo
8 MR. OSTRACH: Yes.
9 CHAIRMAN HENDRIE: Okay.
10 MR. 81CKWIT: Well, we all agrEe.
Jl CHAIRMAN HENDRIE: I think the sentiment for the
12 most recent language lies in a majority, Peter. Now let me
13 declare that to be the tentative sense of the commission.
14 Now what about further procedural discussion or '
15.instruct.ion aJ.-ong the lines there on page 12?
16 Does one desire that?
17 MR. BICKWIT: Do you want further explanation?
18 COMMISSIONER AHEARNE: It would help me. 1.1m still
19 having d.ifficulty in understanding what you.,.re tryin;;; to
20 accomplish.
2 l COMMISSIONER BRADFORD: I 1 m not sure that th is is 22 what you 1 d call enlightened.
23 MR. OSTRACHi Given the sentence as written, as
2-4 proposed by the general counsel, I don 1 t know how necessary 25 it would be to attempt to develop new criteria or scape of 6299.os. 7 34 review since the y.J>re dealing with a new quest ion that they
2 have never dEalt with before. They would inevitably have to
3 develop new criteria.
4 Pe.rhaps th.e final sentence, which is hortatory,
5 could be included, but it doesn.J"t add anything particularly
6 since they should do that in any event.
7 COMMISSIONER KENNEDY: In the absence of specificaUy
8 stating criteria as in the language on page 12, what do you
9 expec~ that the board is going to do? Is it not going to
10 follow the regulations in the absenc.e of instructions to do
J 1 otherwise?
12 MR. OSTRACH: I assume, sir, that it will make a
13 finding on the precise question that Mr. Bickwit read th~t 14 the applic.ant has demonstrated_ the fi;'tancial qualifications.
15 necessary to demonstrat.e safety. It would not make a finding
16 on the 50.. 33 F qualifications.
17 That-'s why I would at least recommend that if they
18 were to maka a finding on the question as phrased by Mr~
19 Bickwit that the staff be separat.ely instructed to make it 20 as part of their certification, perhaps it. would be a logical
21 time to do it 9 an explicit finding with supporting 22 Justification that the licensee does in fact meet the normal
23 operating license crit.eria.
24 COMMISSIONER KENNEDY: I agree.
25 MR.. OSTRACH: In fact, it could be just simply ac'ded 62 99. 08. 8 35
~sh as ~he next sentence after the sentence that Mr. Bickwit read:
2 Licensee shall demonstrate, period. At the time of the
3 recertification, the sta+/-f shall.
4 CO MMI.SSIONER KENNEDY~ I would agree.
5 COMMISSIONER AHEARNE: Then you would not ne.ed this
6 paragraph.
7 MR. OSTRACH: This paragraph in !ts entirety would
8 be gone.
9 COMMISSIONER AHEARNE: Fine.
JO CHAIRMAN HENDRIE: I get a majority number of small
JI amplitude nods. Peter, you were frowning. Did something
12 occur to you in there?
13 ' COMMISSIONER BRADFORD; No
- 14 COMMISSIONER KE1~NEDY: If we just wait a few minutes, 15 something will.
16 (Laughter.)
17 CO MM ISSI ONER BRADFORD: It occurred to me that_ you
18 were on the wrong road.
19 COMMI.SSIONER AHEARNE: ifot havi_ng been the first time.
20 CHAIRMAN HENDRIE: Okay. Let..,s do it as that. Why
21 don..,t we retre,at a page or two and launch into what is called
22 psychological distress questions here.
23 CDMMLSSIONER BRJ.~FORD: I'he::-3-'s 2 class of issues
24 there that I..,m not sure is quite correctly described by that
25 phras.e. But as lon9 as we start out with the same **- what 6299.08.9 36 weJre really talking about is whether the scope of the
2 Atomic Ene.rgy Act reaches this among several other issues
3 that are all sort of accident-impact related.
4 I canJt begin to anticipate what the various
5 contentions will be,. but there will be a class of contentions
6 that more or less go to the theme that since this accident
7 has happened, the impact on the area is sufficient in 8 various, I suppose, some psychological, some economic, some
9 sociological ways that, for one reason or another, it
10 doesnJt feel that the plant should operate.
.J I IJrn not sure that/s psychological. That may be
12 tno limiting an adjective.
13 COMMISSIONER AHEARNE: But is it fair to describe,
14 Peter, that the question is give~ that all the previous
l 5 set.of r.equirements are met, is the plant a.llowed to come on?
16 COMMISSIONER BRADFORD: Yes.
17 There may be a cla.ss of questions.under that h.eading
18 that are different in kind from what Len has discussed here.
19 I.mean,, Lord only knows 1t1hat contentions one can anticipate 20 in that field. There may be some that donJt especially
21.relate to accident impact *
.22 l wouldn..,t say that those two cla.sses. would prevent
23 it..
24 COMMISSIONER KENNEDY~ I.;m not sure what your
25 question w2s 9 John.
6299. 08. l 0 37
.sh COMMISSIONER AHEARNE:,_We_ll, my question was, we
2 currently have a list of things that we normally would say if
3 all of these are met, then a plant can operate.
- 4 And I think the issue here is --
5 COMMISSIONER KENNEDY: These are derived from -
6 COMMISSIONER AHEARNE: Are there additional points
7 which have not been addressed_previously?
8 COMMISSIONER BRADFORD: But the re would be probably
9 two classes of those. One would be additional points which,
10 if addressed correctly, the proponent would_th.en feel that
JI _operation were permissible. Then there:'s going to be a
12 class of contentions and more or less, this plant would
13 operats no matter what you do.
14 COMMISSIONER AHEARNE: Yes. And it--'s* more the second
- 15 category, I th~nk.
1 6 COMMISSIONER KENNEDY: tihy.do you see them as
17 different? I mean what---'s the question about these two this
18 one class with two categories, as I understand it, whatJs
19 the difference in treatment of one versus. the other?
20 COMMISSIONER AHEARNE :-- Do you mean the way the board
21 would treat them or the character of the question?
22 COMMISSIONER KENNEDY.: I understand the character
23 of the question. But having understood that, what difference
24 does that, make in the way that they-'re treated by the board? ~-
- 25 COMMISSIONER AHEARNE: It might not make any
.6299.08.Jj 38 esh di.fferenc.e.
2 C0MM.lSSI0NER KENNEDY: That-'s short of where we have
3 to begin, tbough, to determine whethEr it does or not.
4 COMMISSIONER AHEARNE: I think the first Lssue that
5 we have to decide is whether or not the board or the hearing
6 should address those issues. That.J's, I think, the gist of
7 what the general counsel_,, s paper is attempting to addre.ss.
8 COMMISSIONER KENNEDY: Then we have to decide whether
9 we-'re go_ing to address th_at Lssue. And if we are, then who
10 is to address it.and procedurally, how and when?
J l COMMISSIONER AHEARNE.: That_,, s right.
12 COMMISSIONER KENNEDY: There we are. Now weJve got
13 the active agenda. \\'lhich question should we addre.ss first?.
14 MR. BICKWIT: Why don~t we proceed to our
15 recommendation?
16 COMMISSIONER BRADFORD: I find at least your first 17 couple and maybe all of your recommendations to be
18 unexceptionable.
19 C0MMI.SSI0NER AHEARNE.: You found them --
20 CClMMISSI0NER BRADFORD~ Unexceptionable. I do not
21 disagree with any of the recommendat~ons.
22 MR. 0STRACH: That..,s lawyereze for it-'s okay.
23 MR. BICKWIT: That.J's not the same as unexceptional.
24 COMMISSIONER BRADFORD: A little more than okay.
25 If they had a choice, I think in each case they picked the 6 2 99
- 08
- l 2 39
eJsh right one, a rare sentiment.
2 CHAIRMAN HENDRIE: It~s always had the connotation
3 to me that anyone who took exception to the po.int must be
4 odd *. All reasonable m.en would not make an exception.
5 COMMISSIONER AHEARNE: Th.e only di ffe re nee that I
6---- would take myself.in the outline, and let me ask a question.
7 The impression I get after having read it is, you
8 would haYe the board addressing the issue initially.
9 MR. BICKWIT: That.,,s correct.
10 CClMMISSIONER AHEARNE: I guess 1--'m probably still
J I mor_e interested in us addressing it because I th ink in the
12 absence of a lot mora specific direction than we're prepared
13 to give now, until we_.,, ve heard the con ten ti ons, we co uldn-' t
14 give the direction.
15 In the absence of th.e direction, L think the board
16 would be going off into very uncharted territory.
17 MR. BICKWIT: Now that's one of your options.
18 COMMISSIONER BRADFORD: Len? Here I am already taking
19 exception. Do you read your second section as recommending
20 that the board --
21 MR. 8ICKWIT1 The board considers it in the first
22 instance.
23 24.instructions to certify it8
25 MR. BICKWIT: And it is resolved by the commission.
6299.08. LJ 40
~sh l The board might recomm.end.
2 COMMISSIONER BRADFORD: Before or after re.commended
3 decision. I thought what you. were saying is that it made
4 sense to wait until we saw what form the contentions took,
5 saw whether they may in some way require the taking of
6 evidenc..e and had some feel for what the issue really looked
7 like before we decided whether or not to have the board take
8 a crack at it itself, or simply cert~fy the whole thing.
9 That was the proposition, I thought. It was at
10 least a g.ood idea.
J l MR. BICKWIT: We could try it, but as we map it out,
1 2 we leave it to the board.
13 Now, obvio1,.1sly,.the commission can st'ep in a'nd
14 have it CErtified.
15 COMMISSIONER GILINSKY.: You.Jd ieave it to the board
16 whether or not to certify it with the commission.
17 MR. BICKWIT: Whether or not to recommend.
18 COMMISSIONER KENNEDY: U'm not sure )*rhich question
19 it is weJre talking about. Is it the question of whether
20 these matters shall be considered or the question of what
21 and how shail be considered.
22 What is it that weJre talking about?
23 MRo BICKWIT: Both.
24 COMMISSIONER KENNEDY: Now wait. Okay, it""s the 25 Who will resolve it question.. Now could you visualize. this
6299.08.14 41
.sh for me, concBptualizs it for me in terms of how it works.
2 You have a hearing board. We have a sort of general
3 m.ilestone thing that tells us something about how this whole
- 4 process might work, under what seems to be an extraordinary
- ,..,.. length of time, but whatever.
6 But the question that I have is: When did they
7 reach this conclusion? Whan did they certify that question
8 to us? And what effect does that have on the ongoing
9 p.roc eed ing?
10 MR. BICKWIT: Our view would be that the contention
J 1 stage, when other contentions were being resolved, that the
12 board would look at th.is contention.
13
- COMMISSIONER HENDRIE: If any.
- 14 MR. BICKWIT: Right.
1 5 CHAIRMAN HENDRJE: Generally there would be some if
16 we deal with it this way.
17 COMMISSIONER KENNEDY: In Peter..,s view, it would
18 probably be a host of such contentions in these two general
I 9 categorieso
20 COMMISSIONER BRADFORD: I just don..,t know what to
21 expect.
22 COMMISSIONER KENNEDY: Po._ssibly you would not rule out
23 that it could be several of various orders in these two
24 general categories. Okay.. Now we..,ve got all those_ before the
25 board. And thatJs in the period some 60 days into the 62 99. 08. 15 42
-sh proceeding.
2 MR. BICKWIT: That-"s right. At that point, the
3 board takes a look at the contention and any supporting
- 4 information, dee ides wheth.er it needs additional supporting
5 information, whether it wants to get a brief on the other
6 side, perhaps, decides whether it believes some evidence
7 should be takeno
8 After making those decisions, let~s assume it
9 decides it does want some briefs and it wants some evidence.
JO What it might then do is take the briefs and the evidence,
JI come to a recommendation on the issue, and certify it up
12 to the commission.
1 3 COMMISSIONER KENNEDY: This is before the issuance
14 of the pre-hEarihg conference order.
15 MR. BICKWIT: There are two pre-hearing conference
1 6 orders. Our concept was that this would be, in all probability,
17 aft.er the issuan.c_e o.r contemporaneous with the Lssuance of
1 8 the first pre-hearing conference order, the order determining
19 what interventions were to be allowed and what contentions
20 were to be argued.
21 COMMISSIONER BRADFORD:- You seem to be giving a
22 little more discretion to the board than I thought that your
23 recommendation did4 I took your recommendations to say that
24 the board would be given instructions to certify the question
25 and the briefs and records at one point to the commission for I 6299.os. 16 43
.sh an interlocutory decision either before or after making a
2 rec.orrm.ended decision, as it deems appropriate.
3 Now I read that to say that there would, in fact,
- 4 be briefs and a record 1 assuming that there were contentions.
5 MR. BICKWIT: There would be briefs. We.11, I
6 wouldn~t even go that far.
7 I mean they might take a look at the filing of
8 the contention and make a decision that its recommendation on
9 the basis of the filing alone was that this was not a
10 contention which ought to be allowed, and that no briefs were
1/2.J l needed and no evidence was need.
q 12 Certify that up to the commission.
,' 13
lJ
- 15
16
17
18
19
20
21
22
23 24
- 25 44 62990901"44 ep MR. OSTRACH.: In the normal cas.e I.,,m sure they
2.wou.1d await, however, the filing of responsive arguments
3 from the oth.e.r.side, which for an issue like_this would
- 4 certainly resemble briefs quits closely. I. think we can be
5 sure that the Commissioni once the question would be
6 c.ertif ied, that the Commission would be briefed with the
7 visws of the parties both favoring and disfavoring - at
8 least this is the potential.
9 MR. BICKWIT: But the language doesn.,,t so stats,
10 but you coulrl so provide.
J 1 COMMISSIONER KENNEDY: Okay. Now you have this
12 matter either before the Commission, either before or
1 3 conte.mporaneousiy with the* issuanc.e of that first pre hearing
- 14 conference order *.
15 CHAIRMAN HENDRIE: Is this the first or second?
16 MR. BICKWIT: The first one.
17 COMMISSIONER KE.J."L."-lEDY: When is it that the
18 Commission*decidss that matter, and what happsns to the
19 proceeding mean.while, while the ma_tter remains at issue?
20 MR. BI CKWIT: Our cone.apt is that the Cammi ssi on
21 dee ides it as expeditiously as it can, and that the 22 proceeding goes forward while the Commission is considering.
23 it.
24 COMMISSIONER KENNEDY: The proceeding goes
25 forward?
62 99090245 45
-p MR. BICKWIT: Yes. Which in essence means
~ discovery, at this point.
3 COMMI.SSIONER KENNEDY: All right. Discovery is to
4 be completed by 140 days or 60 days after this; therefore,
5 you are presuming that the Commission decides this que*stion
6 definitively within the 60-day period. If it does not,
7 what?
3 MR. BICKWIT: If it does not, and discovery is in
9 fact completed on the other issues, the Commission after it
10 has dec_ided it, would send the matter back down and
11 discovery would take place on that issue. Assuming it
12 resolves it in favor of the contention being allowed -
13 COMMISSIONER KENNEDY:. And the se'cond prettearing
14 conference could have gone on meanwhile, on a.11 other
15 issues?
16 MR. BICKvHT: our concept is that it would not.
17 CO MMI-5S I ONER KENNEDY: Ah'I so that that-' s what I
18 was trying to get at.
19 MFl. BICKWIT: It would not.
20 COMMISSIONER KENNEDY: So that if Day 140, if the
21 Commission has not resolved that question and instructed-the
22 Board in one way or anothar, the proc~eding comes to a halt
23 until it Cces?
,?,1
_..,. MR. BICKWIT: Yes.
25 COMMISSiONER AHEARNE: More than that, I think 46 62 99090346
what you-"ve said, that is that if the second pre hearing
2 conference doesn-"t begin --
3 COMMISSIONER KENNEDY: Tha*t-"s right. The entire
4 p.roceed.ing ceases at some point.
5 COMMISSIONER AHEARNE: Does it not begin until
6 after discovery is completed on these other contentions?
7 MR. 8 ICKW IT: That was our concept.
8 COMMISSIONER AHEARNE: But if that.,.s so, then I
9 think what you really said is you-"ve put a brok.en line
10 there.
J l CO MM ISSI ONER KENNEDY: Of inde term in ate length.
12 COMMISSIONER AHEARNE: And the prehearing
13 conference is h.eld 60 days after the Commi.ssion decides.-
1 ICKVHT: No.,'/e 14 MR. B... re not saying t.hat.
COMi'HSSIONER AHEARNE: That.,,s what you just said.
16 MR. BICKWIT: No, we.... re saying that it comes down
l 7 to the Soard.. The Board decides what kind of discovery is
18 needed, and holds things up until that discovery takes
19 place and then has its prehearing confeience on all issues.
20 It may decide that no discovery is necessary; it
21 may decide -- and would ii there were no contentions
22 COMMISSIONER AHEARNE: Yes, I s.ee.
23 MR. BICKWIT: *- it might decide that a couple of 24 days would do.
25 COMMLSSIO~--iER AHEARNE: 60 days isn..,t automatic?
62 99090447 47
-p MR. BICKWIT: No.
2 MR. OSTRACH: Furthermore 1 it~s not necessarily
3.so, that the parties wi 11 not be conducting contentions on
- 4.the psychol.og.ical contentions during the period -
5 particularly if the Licensing Board recommended decision
6 favors that this is a contention. I would expect that 7 parties would more than J~ikely, unless they have good reason 8 to b.el ieve that it won..,t be admLtted, would be going ahead 9 with the rlis~overy efforts at this time.
10 So. the time that the Commission spends -
J I CO MMI.SSIONER AHEARNE: Would it be a.llowed?
12 MR. OSTRACH: Yes, sir. The discovery is over.
l 3 COMMISSIONER KENNEDY: On a contention not yet 14 admLtted?
15 MR. OSTRACH: A party could o~ject and could
16 refuse to comply with discovery, but voluntary discovery is 17 always permitted. Discovery, of course, is not only against 18 adversaries, but I believe we..,re using the te.rm here also to 19 include preparation for a hearing. Tne parties could be 20 having their consultants preparing testimony and material 21 like that, even apart from discovery eff-0rts against one 22 another.
23 COMMLSSIONER KENNEDY: Just so I understand this,
24 in simple backwoods layman..,s terms, Mr. Ahearne s 25 characterization seems to me to be very clear and accurate.
48 62 99090548
~p On this chart, at Day l 40, one draws a do~tted line and there
2 is some indeterminate period which is a function of a length
3 of time that the Commission may r.equire to resolve the
- 4 question in its own mind and instruct the Board, plus, some
5 indeterminate period that would be required for discovery,
6 which may run from zero to 60 days.
7 MR. BICKWIT.: Tnat is our view.
8 COMMISSIONER KENNEDY: Therefore, there could be
9 an inte.rruption in this entire process. There will be an
10 interruption in_ this entire process, of some indeterminate
j 1 period.
1 2 MR. BICKWIT: There will be if the Commission
13 takes a v.ery lengthy period of time to resolve it.
-- i'4 CO Mi\\lI SSI ONER KENNEDY: Do you consider 60 days to
15 resolve a question of interpretation of the Atomic Energy
16 Act, as it will affect a.11 proceedings before the Commission
17 now and in the future, to be something that will be
18 relatively quickly taken? I doubt -~ l l.. o
19 MR. BICKWIT: My view is that the CommLssion is
20 capable of resolving that question in less than 60 days.
21 Moreover, if it takes 60 days, we have no assurance -
22 COMMISSIONER KENNEDY: Let me commend you for your
23 confidence and express my appreciation for it.
24 MR. BJCKW1T: If it should take J..' L,n.e Co mmi.ss ion 60 25 d a y s o r mo re to re s o 1 v e it, th a t-' s not t o s a y that yo u w i l.l 49 62 990.90649
-p bring things to a halt, because it.J's quite poss.1bl.e that 2 discovery will be going on quite beyond the period of time
3 thatJs designated in the schedule.for discovery. In fact,
- 4 when the Executive Legal Director presented this schedule,
5 he described as unrealistic the 60-day period for discovery.
6 COMMISSIONER KENNEDY.: That-"s another issue we
7 have to come back to, and that.J's the entire schedule, then.
8 To what extent do we want to establish --
9 co MMI SS I ONER AHEARNE: The advantage of what you
10 see, having this issue first go through the Board prior to
11 coming to us, is what -
1 2 MR. BICKWIT: That evidence may well be relevant.
13 And the B6ard had better see that they take it.
14 ;*,\\R.*-.OSTRACH: In any ever~t, we believe the
15 question is not necessarily the abstract one of what
16 psychological questions the Commission wants resolved, but
1 7 what psychological and social contentions parties wish to
18 raise and that will not be developed until after parties
19 have identified themselves and begun the intervention 20 process before the Board, in any event.
21 CO/v\\MLSSIO.NER AHEARNE: The only thing I..,m
22 wrestling with is, it seems to me that this is such a major 23 change, if we go this route, and we allow these contentions,
24 and itJs such a major change that I 1 m having di+/-ficulty
-- 25 understanding how the Board is going to be addressing it.
6299090750 so
-p Do you believe the Board could remain neutral on whether or
2 not the Comm iss"ion is going to come down one way or the
3 other, and yet allow the contentions to be developed fully,
- 4 is that correct?
5 MR~ OSTRACH: I believe the Board - weJre talking
6 about an experienced skillful board - it has a fairly good
7 idea of what is necessary to provide a basis for a ruling on
8 the admissibility of contentions.
9 (At J:45~ Commissi-0ner Gilinsky left the room.)
10 COMMISSIONER AHEARNE: My only problem is, let us
.Jl suppose maybe the Board is suffiently skilled and
12 experienced, but at least some people might have a
13 skepticism t'hat if the question were raised, that in the
14 previous history of the operations had not been allO't'led, *
- 15 that a Board _might aga.in not allow it and then therefore
16 essentially say these issues were raised conditionlly,
17 they.,,ve.never been accepted? The proper reading of the
18 Atomic Energy Act doesnJt allow them -
1 9 COMMISSIONER BRADFORD! Have they_ been raised
20 before?
21 MR. BICKWIT:. Yes,. they have. We hav.e a series of 22 cases.
23 CHAIRMAN HENDRIE: Not under the Atomic Energy 24 Act, I donJt think, have they?
-- 25 MR. BICKWIT: Yes, I th~nk youJve had somewhat 629909085 l 51 ep similar issues raised under the Atomic Energy Acta
2 COM.MISSIONER KENNEDY: Could you forward to me
- 3.. references to all of them, please?
4 MR. BICKWIT.: They-"re included in our memorandum.
5 COMMISSIONER KENNEDY: I thought I read the
6 memorandum very carefully.
7 COMMISSIONER BRADFORD.: You don..,t mean this one.
8 COMMISSIONER KENNEDY: Oh, the other one. U'm
9 so.rry.
10 MR. BICKWIT: They..,re not directly on point.
J 1 COMMISSIONER KENNEDY.: I d.idn..,t think so.
12 CO MMLSSION'ER AHEARNE: My concern is that
13 therefore the Board would not go into any lengthy proce.ss.
14 MR. BICKWIT: If that happens they would then send
- 15 it up with the recommendation that this contention not be
16 allowed *. If the Commission felt that evtdence was n.eeded,
17 it could take it itself or send it back down and ask for
18 Bvidencs. I don..,t reaily find that a significant problem.
l 9 MR. OSTRAC.}{: I. think the situation has changed4
20 If the Commission specifically provides in the order that a
21 certain.issue which has not normally been taken account in
22 the licensing proceedings may be an appropriate matter,
23 bringing it to the BoardJs attention, t~ey would not simply
24 say 9 Nobody's evs~ heard this before. They~d be dealing
25 w.i th the basis of the Commi ssion.,.s potential interest.
62 99090952 52
~p CHAIRMAN HENDRIE: It seems to me we will corns
2 ultimately to decide.. this questi.on on. t.r...e basis of our
3 readings of the underlying statute.
- 4 COMMISSIONER KENNEDY: And the cases which, as
5 counsel so well points out, are possibly relevantj but not
6 necessarily all on point -- as he well points out in his own
7 mBmo -- that was the reason for my question to you. I
8 wasn-'t sure. I thought mayb.e you knew something that you
9 hadnjlt yet time to communicate to us.
10 MR. BICKWIT: I don..,t know at thing I haven.J't
.11 communicated to you.
12 CHAIRMAN HENDRIE: I take it that the inclination
13 h~re, on balance, is to postpone decision on these matters
14 until a little further development of the sort of '
1 5 contentions. Vic left me his proxy in favor of the general
16 counsel..,s recommendation. Does that seem to be ths
17 inclination?
1 3 COMMISSIONER BRADFORD: Certainly, as to po int
I '
19 one.
20 CHAIRMAN HENDRIE: There..,s a paragraph over
2 J there. Look at the bottom of page 11.
22 COMMISSIONER BRADFORD: Along th.e lines that I 23 ~entioned before, I don~t know that psychological, as
24 opposed to physical consequences, exactly describe the
- 25 issues. But if you leave that aside, I have no difficulty 6299091053 53 ep with the framework thatjs set out from then on.
2 It does specifically say, though, that we expect
3 briefs. So I donJt think it leaves the Board with any
- 4 discretion not to have br1e1s on the questiDn. IJm all for
5 that anyway.
6 CO MMI..SSIONER AHEARNE: Do you have a be~tter
7 phrase, if you can_think of a b~tter phrase?
8 CO MMLSSIONER BRADFORD: I have one, and I can read
9 it now. But I could just as easily circulate it to you.
10 COMMISSIONER AHEARNE: Fine. IJd go with the
J I paragraph.
12 CHAIRMAN HENDRIE: Dick?
13 COMMISSIONER KENNEDY: I* guess I:'d pass *. I *find
14 tha't wejre cr*eat.ing *a procedure here, and a process, 'iihich 15.is going to be close to interminable, and dealing with so
16 many issues and contentions of such complexity that if it is
17 ever completed it would be a remarkable thing.
18 If I understDod how this was really going to work
19 and what effect it was going to have on this proceeding, Ijd
20 be more inclined to act right now. I simply do n.ot know.
21 It has not yet been pointed out to ms in very clear terms.
22 ThatJs undoubtedly my own inability to understand it, not
23 the inabi 11 ty of those trying to convey it. It nonetheless 24 is a fact that I do not understand how to effect~ this
-- 25 proce.ss.
54 6299091 l 54 ep CHAIRMAN HENDRJE: A bare majority in favor, at 2 least tentatively, of your paragraph. Stick it in.
3 Good heavens!
- 4 CO MM ISSI ONER BRADFORD: It--' s a 11 in the 1 ir st
5 sentenc..e.
6 CHAIRMAN HENDRIE: Let us leap forward to D, pags
7 12. Peter 9 do you want to lead on this since it is
8 alleged 9 COMMISSIONER BRADFORD: It seems to me that 10 certainly once one defers ruling on whether these issues
.1 I _ which I had in mind are entirely the ones that weJv_e agreed
1 2 to defer ruling on, I wouldn--'t advocate ruling on this
13 point,outside the framework of vot.ing on the issues
- 14 themselves.
15 That is, I don--'t think it.,s necessary to fund
16 people t-0 raise the contentions in the first place, that I
17 think we can expsct will happen.
18 COMMISSIONER AHEARNE: Is that a subset of
19 interventions that yolrre concerned about?
20 C0MMLSSI0NER BRADFORD: Yes.
21 COMMISSIONER KENNEDY: Only those?
22 COMMISSIONER BRADFORD: }11y original memo was
23 specifically on this set of issues es being unique under the 24 Act, and also a sat of issues on which we couldn--'t expect
-- 25 the staff would be sensitized to th.em in the way that people 6299091255 55
-p wnu lived in the area would be, that therefore it, would be 2 variable to find and fund a vehicle.
3 I don~t_ think, though, that itJs necessary to do
4 that as a part of getting the issues put into contention
5 formo I think anyone who is serious enough about these
6 issues to be a legitimate candidate for funding wou_ld go 7 through the process of putting them in contention.
8 CO MMLSSI ONER AHEARNE: So you--'d recommend
9 _ deferring? I--'d go along with you.
10 COMMISSIONER KENNEDY: I would like to note that I
J l did ask counsel to prepare a memorandum~ which I hoped was 12 going to be unequivocal. Apparently there is some
13 difference of view in English, as to the word uunequivocal,u
1 4* because I did not find the memorandum thaf-0ay.
15 I also found it interesting to note that in' 16 matters which I would have thought relevant, given the
17 extensive background_which was included in the memorandum,
18 didn--'t seem to appear, directly relating to the actions of
1 :I the Congress in this regard. And my views on_ this 9 of
20 course, are clear to everybody, I thinko That is, I think 21 this. is _a ma.tter for Congress to decide and not regulatory 22 bodies responsible to no one, and certainly having no taxing
23 authority _nor independent authority as to the use of funds 24 which happen to be appropriated by the Congress.
-- 25 So, I would~ve thought there were two things that 629909 L356 56
! ~p 0ugh-:. to have been mentioned and referred to,.and perhaps
2 assessed in some way in the memorandum.
3 First, it is, I believe, true that the Chairman of
4 our own oversight commLttee introduc.ed on his own motion and
5 behalf and that of other members of his commixtee a proposal
6 for funding which was rejected by the committee. I thought
7 that was relevant in terms af some view, at least, or at
8 least one temporary view of Congressional intent and
9 attitudes.
10 Secondly, I would note that rather recently there
J l was an extensive debate on the f.loor in one of the bodies,
12 _which extended for some cons.iderable period of tim.e,
l 3
- fo.J.lowing which -- I believe this matter _ _pertains to some
I 14 arm of the Department of En.ergy --- and the re was a great
- 15 deal of sentiment expressed there and I would have thought
16 at least there would have been some mention of this in the
17 memo.
18 However, having said all that, I did not find the
19 memo as persuasive as I hoped it would be, to.make me
20 --unequivocally, as I hoped I would*- support the
21 proPosition~ It is not that I disagree with the
22 proposition. It is that I believe that it is illsgal, and 23 having believed it is illegal I cannot subscribe to it,
24 obviously. And you gave me no basis for thinking other 25 wise, I..,m sorry.
57 62 99091457
-p The Comptro.11 er General leaves me, to say the very 2 least, a bit.. queasy about ths ma~ter. If he had thought it 3 was legal, he would have said so.
- 4 MR. BICKWIT: We.11, we did not give you an
5 un.equivocal opinion; thatJs correct.
6 COMMISSIONER KENNEDY: ThatJs what I had asked 7 for~
8 MR. BICKWIT: Our need to adYise you as best we
9 can overrode our desire to give you an un_equivocal opinion.
10 COMMISSIONER KENNEDY: I understand that and
11 appr_eciate that. Your wisdom is exc_eptional.
12 CO MMI.SSI0NER AHEARNE: If the quest ion of the 13 Comptroller GeneralJs'opinion, sine.a it Looks like weJre
14 deferring this until resolution of the contention, perhaps
-* 15 we can ask the Comptroller General?
16 MR. BICKWIT: Certainly. And we could also 17 address the points Commissioner Kennedy has raised.
18 MR. 0STRACH-: We could also put it in the context
19 _ of the specific conc.erns on funding that Comrni.ssioner
20 Bradford would have indicated, which mig_ht get us a more 21 focused answer.
22 COMMISSIONER BRADFORD: I do think it would be
23.obviously well to have both our basis and our intent in this
- 24 regard cleared up between now and.the time those decisions 25 have to be made. There~s-nothing to be said for completing 62 99091 558 58
-p the review with the agencies and then starting the process
2 to decide whether or not anything is fundable. At that
3 point we ought to be able to say quite quickly that funding
- 4 wi.11 be.available and what the basis for it would be.
5
6
7
8
9
10
J l
12 13 14
-*' 1 5
16 17 18
19
20 21 22
23
24
25 CR 6299 59 HOFFMAN t-10 mte 1 MR. OSTRACH: Then I think that we ought to draft
2 a letter to the Comptroller General setting forth that 3 I l consensus of the Commission.
4 COMMISSIONER BRADFORD: It seems fine with me, as
long as we haven't gone to that well too often already. We
could well keep going back.
COMMISSIONER KENNEDY: We went and went at some
length and in some depth. But I leave that to counsel. If
'I i'
9i I he feels that the question was clear and the answer was
equivocal -- but this very equivocation, I might add, is the
thing that gives me pause. If the Comptroller General had thought that it was legal, he would -have said so. He suggested; i
that there were some views. on this side and som.e on this
1 ~ ! side, and he could see better to do this, but on balance he
- - 1
- i) ;I thought it would be wise to seek legislation in this regard.
\\'.
,J,1 It seems to me it is to be recalled, also, that it
- /., is not, unless we t~ke some legal step I'm not sure even
we can -- it is not the responsibility of the Commissioners
who make this decision to be responsible under*the law for
""'*, payments, which may be subsequently challenged. It is the
l 1 !: certifying officer involved, who in this case I think would
be the controller of the organization.
I, as I think is well known, am not yet comfortable
with any notion that puts burdens on people where the respon
25 sibility lies els*ewhere.
mte 2 60:
cm-1MISSIONER AHEARNE: I think all the more reason
to go back to the Comptroller General with a very specific,
direct question: Is it legal or is it not legal?
4 COMMISSIONER BRADFORD: It isn't that we're going
to be spending funds that the NRC wouldn't be spending anyway..
I don't quite see that we're going out and putting a new tax
on the public.
COMMISSIONER KENNEDY: Yeah. It is taking funds
i I
91 l that would have been spent on already authorized projects
10 and purposes, and putting them on projects and purpos.es not
11 yet authorized.
i'2 !I COMMISSIONER BRJ._DFORD: For example; I don't think I!
'I. '
anyone would dispute it if the staff decided to pursue this*
i 4,i issue and went out and hired, I don't know, a team of
sociologists, psychologists, to study the issues for them and
,.* d '.., :: to present it in a hearing. So the only question, it seems to,
me, that is controversial is whether the issue can be presented!
., !1 by those other than our staff, with the assistance of funding Ii 10 II
- I from us.
- II ?u.., :!
COMMISSIONER KENNEDY: Yes, I understand that. And 1i 2 i 11 :1 don't misunderstand, either, that if there is a case of
.:..:. Ii fundina, it is this :kind of situation.
~ ~ Indeed, the townships
.23 involved, as those who have been here long enough may recall, the townships involved are precisely the kinds of entities
25 that I long believed needed some consideration if we were mte 3 ii 61 I!
II talking about funding.
\\I 2 JI We're talking about little governmental entities, 3 the budgets of which are probably less than the salaries of
4 most of the people at this table. It just happens to be a '
I !
5 I ii fact that many of these institutions simply don't have the kind 1;
-~Cle~::: Reporters, I nc.1 25 either 30 days prior to the end of discovery or you could pull mte 9 67-
discovery into 45 days.
2 COMMISSIONER KENNEDY: The SER has to be published 3 before discovery is terminated.
4 MR. BICKWIT: It's been staff practice to allow
5 discovery on the SER.
6 CO.MMISSIONER KENNEDY: Do rules call for that?
7 MR. BICKWIT: No, sir, I don't believe so.
8 MR. OSTRACH: The rules do not even require an SER
9 to be published.
10 COMMISSIONER KENNEDY: Discovery can go ahead and be
- 1 completed. In other words, if one could find in the earlier j,t_ periods time that could be removed, even if the SER were
published substantially after* the discovery period and provided:
,4 ;1 to all parties, that would not be in violation of the rules?
!j
- - jl i.) i I CHAIRMAN HENDRIE: I don't think there really are
any rules in this proceeding. We can define them in the
, - *1
- /
- 1 order.
- I MR. OSTRACH: In fact, sir
.i iQ ii COMMISSIONER KENNEDY: I'm just wondering. I guess ii 2G 1J I want to think that through and see if there isn't some way, ii
-'-' ii then, to go back through here and compress things. I was
~2 '.\\ thinking earlier that it wasn't going to make any difference,
because of the date of the SER. But if the rules in no sense
require the SER publication at.a given point in the proceeding,
surely it ought to be done before the hearing itself actually
i I!
II
mte 10 68
begins. I understand that, because there is time to do that.
There's another month and a half. And if we can squeeze some
time out, we'd still get that SER published before the hearing
4 had actually commenced.
5 Is that a reasonable or feasible course?
ii 6 'I ii MR. OSTRACH: I think it's very important to maintaini Ii
_ II a reasonable amount of time between the publication of the SER
/ ll o ii ii and the beginning of the hearing, because the parties' cases,
Q \\I, I particularly the intervenors' cases, would likely be focused
10 by the SER and will be addressed to the SER.
ii q
- ! 11 ii COI',l\\'..i'vfISSIONER KENNEDY: Why is that, if there isn't ij
,, I ii even a requirement for the SER to be publishe9?
, 2 ::
'I
. ~ !!
,.., MR. OSTR.1\\CH:*-~rn this case, I would expect that..c ll.
,i
!J.,, there is an SER, they are going to focus their case on it.
15 If there we~en't an SER, they would have to build their case
)i iO il " themselves. I am generalizing from my experience with
licensing proceedings. That is the way intervenors' cases
- j are built.
l () Ii COM.MISSIONER KENNEDY: Okay, I understand.
CHAIRMAN HENDRIE: I'm sorry. I lost the thread,
21 Dick.
COM.J.'HSSIONER KENNEDY: Well, Steven's point is that,
. given that there is going to be an SER, it's reasonable to
presume that there is going to be a reasonable period of time
after the issuance of the SER and before the hearing begins rnte 11 69
to allow people to base whatever case they wish to make on the
2 SER. I understand the point.
3 CHAifil".iA.N HENDRIE: It's clear that we need an SER
4 in this circumstance?
5 COML~ISSIONER KENNEDY: Is it or isn't it?
6 MR. BICKWIT: This was the judgment of the staff,
., ! / 11 that they don't feel competent to evaluate it.
,.., !I 11 d !I CHAIR.t\\1AN HENDRIE: I think it's valuable for the
Q', I staff to say what it thinks about a proposition in an issue 10 like this and to provide that docurnent. It stretches things i*
,I
i 1 !I ]i out.
,,., :i
- i..:.. l MR. BICKWIT: Not necessarily.
'l
~ J : ~ CHAIRMAN HENDRIE: If you want to publish the SER
- il
,_ ii
>i and then"allow a reasonable amount of time before the whole
- -,: thing goes, bef0re the proceeding starts before the board,
,j 16 ii -,i why, you've got a cer.tain increment in time to get to the SER
- I,I and you've got some distance beyond that, even if you.don't
allow the ACRS review, to just add directly in series to the
time you had to get in the hearing.
MR. BICKWIT: All I'm saying is getting rid of the
L *,1 SER, compressing it, doesn't get you anything unless you c_an
compress this side of the schedule. That's my only point.
CO.MMISSIONER JI..HEAR.t'\\JE: A lot of the schedule is going
- -oc:eral Reporters, Inc. to be driven by something, I would guess, such as what is
- 25 happening on the other plants. That seems to be one of the mte 12 70
two major issues that's really going to be addressed in the
2 hearing.
3 COMMISSIONER KENNEDY: I'm sorry, John. I missed
4 the point.
5 COMMISSIONER AHEARNE: It's just that there are
6 two fundamental issues being addressed. One is the relationshi~
r 7
- I to the second plant and what is the condition of the second
8 plant, if it can continue isolated from the first. Therefore,
9 part of the shadow schedule here is what's happening with the
10 second plant.
11 Ii CHAIRMAN HENDRIE: I think in this kind of a time ll
scale, you can separate them. Now, whether you accomplish
ii all that, physically accomp.lish it, is another *question. But
- I.* :] II ii to the extent that bulletins have to be done before a restart,
- 5 ;/ why, you can get the hearing done and then be waiting to pick 16
- ! " '
,, up this pipeline.
,I 7 ::,, COMMISSIONER AHEARNE: I wasn't implying that the
action would. have to be finished. But I have a sense that
11,I coming to at least a resolution of those steps, it's going to
'I
. I l take a number of these months anyway, not because of TMI-1 I
e-10,i but because of the clarifying of some other issues on TMI-2.
-"- i
I
- 24 i
- --;,""' rieporters, I nc.1 251
I I
CR 6299 #11 DAV/PV 71
CHAIRMAN HENDRIE: Len, suppose we went at this thing,
2 the December 1 SER publication, and directed that the ACRS
3 review that, that the prehearing conference order go ahead, that
4 the ACRS review letter as expected be available before the
5 hearing begins --
6 (At 4:20, CoTILmissioner Gilinsky leaves room.)
I CHAIRMAN HENDRIE: -- But not hold at all of that.
8 We'll put that in. We would then -- we're probably going to
9 need that 60-day discovery completion, anyway, which puts the
10 prehearing conference at the first of January, overlaps the
1 1 discovery period, 30 days on the SER publication, which would
I
, 2 i I ll be December 1. From there on, it take 4.0 days to get into the i
. I 11 I - I hearing, ~nd 60 days through a hearing if things went well.
14 jl April 10, I make it.
1 15 i I.COMMISSIONER AHEARNE: To complete the hearing?
j 16 I I CHAIRMAN HENDRIE: To complete the hearing. Because
there has to be some reasonable.time, as pointed out, for people to look at the SER, prepare testimony, one thing or another, and: !
191 also to allow the ACRS to get its opinion filed so it can be
I 20 ! looked at. I don't know how much squeeze there is there.
I 21 i i From:there on, it takes 40, 50, 95, 130 days before 22 I I 1 there could be a restart if one considered appropriate conditions
23 were met. That includes 40 days for filing of proposed find-
- 241 ings, 10 for the reply, 45 for a board decision, and then the Ace-Federal Reoorters, Inc. I 25 35-day Commission look to see what all of that means.
pv2 72
Is there some contraction possible in there?
2 MR. BICKWIT: There may be, with respect to each of
3 these.- i terns. Chances are there won't be.
4 COMMISSIONER KENNEDY: Can you prescribe it?
5 MR. BICKWIT: Certainly, you can prescribe it. What
6 you've got in there now is an inst~~ction to the board to do
7 whatever it can to compress those. You considered at one point
8 that you would have a target date, and, as I remember, the way
9 you resolved it, that you wouldn't, that you would ask the board:
10 to set a target date. You can rethink that, but that's where
11 you were.
12 COMMISSIONER KENNEDY: In addition to this 335, then,
i3 the Commission now has it. *.,
14 MR. BICKWIT: The Commission has it, and we have
15 considerably collapsed the possible review process time prior
16 to restart, permitting a decision on lifting immediate effec-
17 :i,tiveness prior to final review. Commission time could be down
.I 18 to a matter of weeks. But our view was once you abandoned the i
19 two-hearing approach idea and rejected the severe tightening
20 on cross-examination and discovery, there wasn't much tighten-
21 ing that could be done.other than Commission time after receipt
22 of the board's initial de~ision, which you have done.
23 CHAIRMAN HENDRIE: 45 days for the board decision.
24 Other people have filed proposed findings. Could we come down Ace-Federal Reporters, Inc.
25 some on that and then the board decision time?
pv3
73
MR. BICKWIT: I gather this is an optimistic fore-
2 cast as to what the decision time is for a board. Again, you
3 have told the board to do it as quickly as it can. You told
4 them to take full advantage of the rule that allows them to
5 collapse time periods.
6 CHAIRMAN HENDRIE: I am very much afraid you may run
7 in the other direction, which is why one would look at the
8 schedule in some detail, to see if we aren't willing to put
9 some pressure on.
10 I Let me tell you what I 'had in mind about the schedule.
l 1 I don't think it's practical to write into the order and say
.12 the Commission orders that you do this in five days and that in
13 seven, the other in 12, and the whole thing, you know, and so 14 on and so on.
15 On the other hand, it seems to be practical to work
16 this kind of a layout to agree on some of these times in the
order, to say that the Commission expects parties and the board
to conform as fully as practicable to the attached tentative
schedule, which leaves it not a compelled matter which may in 1:
20 ii II some particular case just flatly be unreasonable, and people
21 !I would be - back to us for relief with an o::::-:der relieving it, but
22 does make it clear in a very explicit way that one wanted to
231' move and provides a pressure on the system to make it move.
- ,,\\.
e 24l If I could convince you that something like that is Ace-Federal Reporters, Inc. I 25 reasonable to do, my own view, is that it would be helpful.
pv4
74
COMMISSIONER AHEARNE: I have no problem with it.
2 CHAIRMAN HENDRIE: I would propose here to do no more !
3 I than put that explanation to my reason for discussing the matte~.
4* I COMMISSIONER BRADFORD: Joe, this would take the placJ of the proposition that the board should set its own target dat~. I 5 I
I 61 I CHAIRMAN HENDRIE: Clearly, it would.
7 COMMISSIONER BRADFORD: One alternative is to have
8 the board set the target date, and if it seems to us to be pre
9 posterous, to step in at that point and say, "No, no, we would
10 \\ rather you worked on this type of schedule."
11 i I would like to think about it, but my tentative i
12 j reflex is that as the board gets a sl_ightly better feel: for the*!
13 proceedings, they ought to set a target date; they will then 14 // have the incentive of having to obey it themselves, and obvi-
I l5i\\ ously, we can do that, anyway.
16 CHl\\IR;MAN HENDRIE: Well, I recommend it to your con-
17 11 templation over the weekend. !i
)1 18 I guess I would put one final comment on it. If I
10 I., i* could figure out where to take out five days here and 10 there,
!I ii 20 ii just pull it in. As it runs now, it comes out on the 20th of 1i
!I August 1980.
21 ll "
- 22!\\ COMMISSIONER BRADFORD: How does it get there?
i:
.I 1
23 1I MR. OSTRACH: 35 days for Commission review.
24 CHAIRMAN HENDRIE: It continues to seem to me that a
-Ace-Federal Reporters, Inc. I i I
25 \\\\ rreasonable examination of legitimate concerns could be completed!
I I
I I i pvS
75
a little quicker than that. So, I would look and see, in fact,
2 if it were possible to contract at least a few of those times
3 and without any specific recommendations, but only having warned
4 you that I will try that on you, why don't we end this?
5 MR. BICKWIT: I should say I don't have any problem I
61 with the legality of that, except when you're talking about
7 collapsing the SER portion, where there you would be directing
8 staff as to how to prepare its own testimony, in which case --
9! CHAIRMAN HENDRIE: Well, if I am going to urge the I
10 1 other parties by virtue of a thing like this, saying the Com-
ll mission expects, you know, parties A, B, and c 1 to get their
12 testimony file~ in, you know, five plus 20 days after the close
- 13 of discovery, I don't see why I can't tell the staff: Part E,
14, we expect you to get your SER out by whatever it turns out to be! !
15 MR. OSTRACH: I think that's all we're saying, that
16 the staff should be treated to the extent that you treat other
17 parties rather than being subject to special directions that it
18 had to meet certain deadlines.
CHAIR.MAJ.~ HENDRIE: I wouldn 1 t have written the staff
into the order. Just say: Attached hereto is the schedule!
MR. BICKWIT: But the SER portion --
CHAIRMJ\\.N HENDRIE: Would be in this, not in the order.
Ji
- I
,1 23 ii It would be just the same as the other parties.
I e 241 MR. BICKWIT: All right. Would you attach this
, Ace-Federal Reoorters, Inc. !
I 2s I schedule to the order and say this is --
pv6 76
CHAIR.L'VlAN HENDRIE: Yes.
2 MR. BICKWIT: I would just leave the SER portion of
it off. Well, reflect.
CHAIRMAN HENDRIE: If you see some good, reason for
5 that, okay. But I don't understand why. But don't tell me now.
6 MR. BICKWIT: You are directing
7 (Laughter.)
8 MR. BICKWIT: Well, okay, I will heed your last admo-
9 ni tion.
1 O I CHIARMAN HENDRIE: One last thing. It seems to me
11 that some of the other things we wandered back and forth across
12 and down the m~moran?a, and the meeting that proceeded fthat
13 memorandum, could.now be draft-ed up so one could see what some
14 I of this looks like. And I would ask that you do that. And
15 for the next meeting on this subject, sort of work it.in as a
i 16 diversion to t~e budget exercise. Anytime we discover ourselvesi I
getting bleary-eyed over staffing levels and budget, why, we'll
return.
We're about two minutes away when we now meet on the
next order.
COMMISSIONER KENNEDY: This is now a scheduling meet-
ing?
CHAIRM.Al.~ HENDRIE: That is right. We are now con
24 eluded, the TMI-1 meeting. A scheduling matter.
.Ace-Federal Reporters, Inc.
25 (Whereupon, at 4:35 p.m., the meeting,adjourned.)
end#ll