ML22230A104
| ML22230A104 | |
| Person / Time | |
|---|---|
| Issue date: | 07/25/1979 |
| From: | NRC/OCM |
| To: | |
| References | |
| Tran-M790725 | |
| Download: ML22230A104 (41) | |
Text
RITURN TO SECRffARIAT RECG,?D..,
NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
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PUBLIC MEETING BRIEFING BY STAFF ON TECHNICAL ISSUES RE RESTART OF TMI-1 Place - Washington, D. C.
Dote -
Wednesday, 25 July 19 79 Pages 1 _ 39 ACE - FEDERAL REPORTERS, INC.
Official Reporters 444 North Capitol Street Washington, D.C. 2000 l NATIONWIDE COVERAGE - DAILY Telephone :
(202 ) 347-3700
DISCLAIMER This is an unofficial transcript of a meeting of the United States Nuclear Regulatory Commission held pn Wednesday, July 25, 1979 in the Commission's offices in 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 ~ranscript is intended solely for general i~formational purposes.
As provided by 10 CFR ~.103, it is not part of the formal or in£ormal 'record of decision of the matte;s discussed.
Expr'essions' 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.
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25 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BRIEFING BY STAFF ON TECHNICAL-ISSUES RE RESTART OF TMI..-1 Room 1130 1717 H Street Northwest Washington, D.C.
Wednesday, 25 July 1979 2
The Commission met, pursuant to notice, at 11:10 a.m.
Before:
DR. JOSEPH M. HENDRIE, Chairman.
RICHARDT. KENNEDY, Commissioner.
PETER BRADFORD, Commissioner.
JOHN AHEARNE, Commissioner.
Present:
MESSRS. BICKWIT, OSTRACH, SNYDER and CASE,
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P R O C E E D I N G S 2
CHAIR.l'-1..P-~N HENDRIE:
The Commission meets this 3
morning to continue its discussion of the TMI-1 order.
As 4
per request, we have a draft in which the General Counsel's Offi e 5
has simply put together the pieces, although they have not 6
reflected the substantive or editorial changes in yesterday's 7
meeting.
But it at least provides us one piece of paper, so 8
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25 when we say page 3, we won't have to ask which document, and so on.
I would suggest that we continue with the discus-sion we ran down, I think, yesterday afternoon.
I think we could take that discussion back up.
Let's see.
Vic wanted to talk about the financial qualifications line in the order,. but I don't think he will make this meeting.
My understanding is he will not be able to come in until after noon.
COMMISSIONER AHEARNE:
What is the-~ what do you plan on accomplishing this morning?
CHAIRMAN HENDRIE:
I hope to continue the discus-sion,.we had started working down Peter's memorandum, and discuss some of those things, and work on through it,. and see how much closer we can get in terms of perfecting the draft toward a result which can be confirm.
In looking at the schedule, why don't we think a minute about where we are likely to be able to fit in what
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is almost certainly going to be a need for further Commissioner meetings on the order.
COMMISSIONER AHEARNE:
Could I ask the General Counsel a question?
CHAIRMAN HENDRIE:
I'd be glad to have you do that.
COMMISSIONER AHEARNE:
Len, when do you think you might be able to give us a draft which puts together the various points that have been made over the last couple of days, with regard to changes in the order, and including some that might have several alternatives?
MR. BICKWIT:
With respect to the agreed-on changes, I would think within a matter of hours.
With respect to the various alternatives th~t you have been considering, that would*take a bit longer than I've approached it.
From the standpoint perhaps it would be easi r for all concerned if we resolved in principle where you wanted to go on those alternatives, and then we could draft them for you.
But if you think it would help the resolution, I'll draft them up.
COMMISSIONER KENNEDY:
Could you just list those major matters at issue which you believe are not resolved for purposes of drafting~ and then see if we can address those one at a time, and give you some guidance.
To the extent that: in fact we have differences
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that seem unresolved, again it would seem to me useful to turn the differing views into alternatives language which would MR. BICKWIT:
I believe you resolved yesterday, although I am not entirely clear on it, the question of whether you wanted to go with a two-hearing process or a one-hearing process.
I got the consensus from you that you wanted to reject the two-hearing alternative, even though it means substantial savings of time in bringing this plant back up if it is to come up.
But if you have not resolved that, that would be issue No. 1.
If we were to draft up that alternative, yon would have major surgery on this.
CHAIRMAN HENDRIE:
Clearly it would have quite a different look to it.
MR. BICKWIT:
If you have resolved that in favor of going with a one-hearing approach, then alternatives that face you -- or do you want to in some way provide for limita-tions on discovery?
Do you want to in some way provide for limitations on cross-examination?
Do you want to in some way provide for an opportunity to bring the plant up after the Board's decision, but prior to the Commission's decision on the order?
Then there is the issue of financial -- the
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4 financial issue that Mr. Gilinsky has raised.
The question of immediate effectiveness with respect to the long-term actions.
The question raised by Commissioner Bradford with me of whether it would be easier not to list the specific 5
actions that ought to be taken, but to provide that staff 6
would come in with a list of actions.
7 I don't know whether you want to --
8 COMMISSIONER KENNEDY: I'm not sure I understand 9
that, what you meant.
6 10 11 COMMISSIONER BRADFORD:
After yesterday's meeting, I got to thinking about ways to conceivably disentangle 12 the process of getting this order out, one of which seemed to i
d 13 me to be for the Commission not to specify the sta~f actions, 14 15 16 but in effect to issue an order which says there is to be a hearing as to whether or not the plant could be operated in consistence with the public health and safety.
The staff 17 is instructed to file its position at an early date.
18 And then have the staff position be available to the parties 19 as they plan contentions and, of course, it would be the 20 position of the Staff in the hearing that the Commission would 21 not itself explicitly have gotten into this,. of whether this 22 list is our preliminary thinking of what needs to be done; 23 whether this list in any way is a commitment to reopen the A
24 plant once it's accomplished.
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25 I only mentioned that to Len a few minutes ago,
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7 and I would assume he hasn't had time to give it much thought.
MR. BICKWIT:
Then there's also the issue of who is to decide the completion of work, which was raised again at the last session.
5 And finally, an issue that we haven't discussed, but 6
have just touched on, as to whether you want to, in areas where 7
you are anticipating generic response to the accident, whether.
s you might want to provide for a later dropping-out of those 9
issues from this order.
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25 COMMISSIONER AHEARNE:
Could you explain that a little better?
MR. BICKWIT:
While.it-has occurred to us, we haven't really discussed it with you, but s*ince you are anticipating a generic response on some of the Lessons Learned COM...MISSIONER AHEARNE:
Generic response or generic directive?
COMMISSIONER KENNEDY:
Generic instructions.
Responses will obviously be plant-specific.
How does one respond to a --
MR. BICKWIT:
You're anticipating some kind of generic action on the part of the Commissioner.
I do not know-~
COMMISSIONER KENNEDY:
On the part of the Commission right.
MR. BICKWIT:
And Ed has mentioned to us that there
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25 are various options that are being looked at, and I gather the Staff has not come down on whether it wants to proceed generically.
8 But should the Staff so recognize and the Commission adopt that recommendation, it might be preferable to allow those issues to come out of this order at a later stage, and not single out this plant for special treatment.
So all of those issues, I think, are relatively major, and we can draft up alternative language on all of them.
In answer to your question how long would that take us, that's a rather substantial job, and certainly a job that would be made easier if you were to resolve the issues before we started drafting.
However, we will do the drafting.
COMMISSIONER AHEARNE:
By substantial job, I gather what you are saying is it could be several days, even if we were to make a set of decisions?
And if we don't make a set of decisions, it would be more like a week.
Is that --
MR. BICKWIT:
I think several days.
Alternatively, you could -- we could draft up one or two of these issues, bring them to the table, and you could make decisions on those, without doing the whole works, CHAIRMAN HENDRIE:
Well, it seems to me that our purpose here this morning is in fact precisely to work down
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some of these other things that remain that are to be thrashed out, and see what guidance we can give the counsel, although it seems to me we have --
MR. BICKWIT:
Another issue that Mr. Bradford has suggested that we might want to address in*this order, in the scope of the public health and safety questions that are being addressed --
COMMISSIONER KENNEDY:
In the order?
MR. BICKWIT:
Yes.
COMMISSIONER BRADFORD:
At least a procedure for resolving them.
COMMISSIONER KENNEDY:
Well, if there is a question, I think we are reasonably well agreed that it needs to be addressed and resolved early on,, which is different from saying what the scope is, but simply saying that is in question.
COMMISSIONER BRADFORD:
I meant really to raise the question of --
MR. BICKWIT:
Procedural resolutions.
COMMISSIONER KENNEDY:
How to get at it.
COMMISSIONER AHEARNE:
You're going to be asking General Counsel to address something that --
CHAIRMAN HENDRIE:
Why don't we crank down this list.
MR. BICKWIT:
We can proceed with the issue you were on,
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25 10 CHAIRMAN HENDRIE ;
Why don '* t we start the top and see where we are~
One hearing or two.
It's been proposed that a way to come more speedily to decisions in this matter would be to separate out conditions that might be required for restart into a less formal proceeding, that would go on at a faster clip.
It's been projected for a single hearing, and it seems to me that the confusion that is likely to arise from two proceedings, and which items are properly in one, and which properly in another, and there inevitably going to be some items that are properly in both, make that a very awkward configuration.
My own preference is to have a single NRC proceeding in the matter, but I'm very concerned over the time that it apparently may take to reach a decision.
It seems to me that the kinds of times which have been suggested here and which I've suggested gould run considerably longer, even, than* those scheduled, really are excessive, in order to develop a reasonable exposure of the matters at issue and allow them to come to the -- come to a decision.
But we do -- we have built in the Commission's adjudicatory system, I recognize, a long tradition of practices and so on.
And to a considerable extent, we are bound by these, if not fully and absolutely in a statutory sense,
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25 11 nevertheless, very strongly bound by the practice that we have used in our own regulations.
So I guess I would settle for a single hearing and try to include in the order such admonitions as we can to the Board to move it along, and some of the elements of the moving along we can discuss in a minute.
That's the next item down?
Are there other views on one hearing versus two?
COMMISSIONER AHEAR...l\\JE:
Len, since you raised the two-hearing subject, could you say a few words about how that second hearing might be able to address issues that at the same time would be being addressed in what clearly would be a more formal process in the longer hearing?
Do I tnterpret correctly that*you see no legal difficulty with doing that?
MR. BICKWIT:
That's right.
COMMISSIONER AHEARNE:
And so as far as you can tell from the statutes at hand, would it also be true of our regulations that that second hearing could address whether or not these actions are appropriate for the plant to start up; if they were to conclude that they are not appropriate, then the Commission could direct more to be done, if they were to conclude that they were adequate?
And the Board could recommend,. the Commission could agree~ and the plant could start up by the time-~ while this other hearing is going on, the more formal process?
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25 12 Is that correct?
MR. BICKWIT:
That's correct.
CO~L1/2ISSIONER AHEARNE:
This all relates to the fact that this is a unique type of situation.
It'*s not a construe-tion permit.
MR. BICKWIT:
That's right.
There is no right to a hearing at all on restart.
That is our view.
There is no right to a hearing.
If you decide to have a hearing, it is a matter of complete discretion how you structure that hearing*.
You could have a hearing that was legislative in its approach; no cross-examination, no discovery, no formality to it at all.
You could decide to bring the plant*~p in the middle of the hearing.
COMMISSIONER AHEARNE:
Do you know of any analogy in any of the other commissions or regulatory administrations for this kind of a proceeding?
MR. BICKWIT:
No.
There are many analogies from the standpoint of having legislative hearings.
They are mostly in the rulemaking context.
However, in some cases, in the Food & Drug Administration, for instance, hybrid hearings are held.
Hybrid hearings are held in the Federal Trade Commission, and in the Environmental Protection Agency on matters which are basically adjudicatory in nature~
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25 13 COMMISSIONER AHEARNE:
Have ::pu thought, or had your office thought through this to the extent of a tentative structure that such a hearing might have?
MR. BICKWIT:
Yes.
What you could do is to" have a Board or perhaps just one master or judicial officer take some contentions and intervention petitions and rule on them, in a similar fashion to what is contemplated under adjudicatory hearing rules.
But then --
COMMISSIONER AHEARNE:
What rules would he or she be applying?
MR. BICKWIT:
Any procedures that you prescribed, you could direct them to the rule that you've got.
You could apply alternatives, and you could apply alternatives without rulemaking.
You would not have to change your rules, because this would not be inconsistent with those rules.
Those rules apply to adjudications.
What we are talking about here is not a formal adjudication under the act.
What we are talking about is an ad hoc procedure for determinin whether this plant can restart.
You could have this judicial officer rule on pre-hearing motions, decide who is in, who is out, and how to consolidate oarties in a manner similar to a prehearing activity of a board in a rulemaking, and then have an abbreviated hearing before the Commission itself.
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25 14 You* could do without cross.,....examination, or provide that the parties would submit to the Commission questions that it would like to have answered.
COrL~ISSIONER AHEAR~E:
Eave you constructed a complete set of -- rather than possibilities, let us suppose that we were to say, all right, wetd like that; have you constructed something which is here is what would happen and the time involved, and the parties would have this amount of time for this, or this amount of time for that, similar to the schedule that Shapar outlined for the adjudicatory hearing?
MR. BICKWIT:
No, it's an easy job, since the opportunities are varied,' and you want a feel for what you coul live with and what you couldn't live with.
COMMISSIONER AHEARNE:
What I'm trying to ask is have you constructed a model in this area?
MR. BICKWIT:
To the extent I*ve just given it to you, that's the extent of our construction.
MR. CASE:
We could even work the problem backwards.
How much time would you like to spend on it?
MR. BICKWIT:
And what sort of ways would you go about it?
Do you want the hearing to be over in six months?
I'll give you that kind of estimate.
COMMISSIONER KENNEDY:
I'm not sure at all in my mind -- put it another way, I guess I share the Chairman's
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25 15 stated concern that the confusion that might arise may in the long run actually thwart the purpose for which you pursued that course.
That as the confusion developed, time would have to taken to sort it out and be sure that due process was being afforded, and that the rights of any of the participants were not being improperly accounted for.
When you get through, you have developed a number of additional procedural problems, each of which require time for resolution, some of which may equal the length of time be that you were trying to shorten from the more normal adjudicato y proceeding.
I don't know how to sort that out in my mind, betaus it would take more development than has been achieved so far.
Each step of that process needs to 'be examined; to say'if you'*
do this, now here are the kinds of problems that might arise, and these are the ways you could deal with them.
When you do that, then you'll have some notion of whether time is.really going to be saved, or whether it isn't.
And I'm not comfortable yet with the notion that it would be.
MR. BICKWIT:
Let me respond.
First of all, I'm not recommending this approach.
I'm simply putting it forward, and I share the Chairman's view that it would mean considerable confusion.
I guess I do not believe that there are any legal problems associated with it, and I do not believe that you
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would not be able to shorten the time periods considerably through its use.
16 COMMISSIONER KENNEDY:
You are confident that you could?
MR. BICKWIT:
I am confident that you could, that 6
you could construct a legislative hearing which would afford 7
fairness, and that could be accomplished in a considerably 8
shorter period of time than your full adjudicatory proceeding_
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10 11 12 COMMISSIONER AHEARNE:
The concern that I have is that as we talk about the full adjudicatory process, there is still an underlying concern of trying to get along and make it 13 move rapidly, and that at some point begins to perhaps 14 15 16 17 18 19 20 21 22 23 conflict with the effort to have complete and all open, and so forth, process.
The one major advantage that your alternative has~
is that then you would not have that time pressure sitting on top of you.
MR. CASE:
I guess my view, for what it is worth, you've never had one of these, and so that's why I think it's hard to say anything about it, because you have no experience.
I don't share the Chairman's or your view that there would be a confusion between the two hearings.
I rather 24 think that it is quite simple.
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The issues are the same in 25 both of the hearings.
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25 17 One is addressed in the legislative type frame, and the other is addressed in a judicial framework.
One has to be completed before start-up and the other doesn't.
I think the distinctions are rather clear.
The confusion is not there.
I'm just not sure of the full length of time, and time-saving issue that Len is sure of.
COMMISSIONER AHEARNE:
Let me ask another question.
We've been going through some questions about what is and what is not appropriate for the adjudicatory hearing, as well as issues.
Would there be similar constraints placed upon this other type of hearing, or would that be a -- have similar flexibility on what would be appr~priate for considering?
MR. BICKWIT:
I think you would have to focus in a __
similar fashion on what is usually considered.
COMMISSIONER AHEARNE:
But would it have greater flexibility than the constraints that MR. BICKWIT:
No, because you would have an order out saying these are the issues.
You'd also have --
COMMISSIONER AHEARNE:
As I understood it, one of the issues that we are trying to address, as far as this adjudicatory hearing, has to do with the reach of the general area of public health and safety.
Would we have a similar difficulty --
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25 should 18 COMMISSIONER KENNEDY:
The question is whether we what should be included when one is discussing public health and safety.
If there's anything to be excluded, or how far does it reach, and that question needs resolution.
Aside from whatever the results having an effect upon the hearing, the question itself needs resolution.
COYLMISSIONER AHEARNE:
I understand the question needs resolution.
Perhaps a different way of asking my question would be:
Is there any difference between the constraints placed upon the resolution of that question that Mr. Kennedy just talked about, and upon which of these two hearings one would be addressing?
MR. BICKWIT; No.
MR. CASE:
I think I have~ differen~ view.
It isn't as important to be specific as to the issues in the legislative type hearing~ if I can call it that, than it is the adjudicatory.
Because by its very nature, I think shorter in time, and the scope does not so much -- the length does not so much depend on the scope.
COMMISSIONER BRADFORD:
But in the end we have to make our decision under the same law in either process, and more or.less might be discussed in one framework or the other.
A decision that would be wrong under one would be wrong under the other.
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The plant cannot operate if you determine it's inimical to public health and safety to operate.
It's a question that you must address, in either case.
COMMISSIONER AHEARNE:
But it's possible it might be--
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the way the issues could be presented and discussed* in one 7
hearing versus another.
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25 MR. BICKWIT:
I don't see it.
In each case you must determine what issues you feel need to be resolved prior to restart in order to make your finding under the act.
COMMISSIONER AHEARNE:
If no one else has any interest in that, then I certainly will not ask the General Counsel to devote time to trying to constrribt --
COIV'.t..T'v1ISSIONER KENNEDY:
I'd be pleased if he would.
I'd like him to go over how the time-saving actually arises.
MR~ BICKWIT:
If you are willing to do without discovery, if you are willing to do without cross~examination.
right there you've chopped off,on the discovery item, you've chopped off 60 days.
On cross-examination, my guess is that you've choppe~
off somewhere from two weeks to a month.
If you are willing to do without an initial decision followed by a final decision by the Commission, you have chopped off four months.
COMMISSIONER KENNEDY:
Yes, but it 1* s possible to
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25 20 get some of each of those savings in any event.
MR. BICKWIT:
That 1 s true.
CHAIRMAN HENDRIE:
In the single hearing.
MR. BICKWIT:
It is possible, but it is certainly not possible to get all.
You cannot do without discovery in the adjudicatory hearing.
You cannot do without all opportunit~
for cross-examination in an adjudicatory hearing.
There is the possibility of doing without the four-month period under the one-hearing approach, and that is certainly something that I think the Commission ought to focus on.
It would be a departure from its normal way of doing things, but it would, in our view, be legal.
COMM:ISSIONER AHEARNE:
Doing without the 'four months.
MR. BICKWIT:
Yes.
Under what's contemplated, and in the order that you are now looking at, an initial decision would be reached by the Board and it take on the order of four months for the Commission to review it.
Consistent with the act, and consistent with a one-hearing approach, you can dispense with that --
CHAIRMAN HENDRIE:
That decision would be immediatel effective.
MR. BICKWIT:
You could do that, or alternatively you could say it's not immediately effective, but the Commission will take a look at what's been produced by the Board, and make a decision without waiting for briefs of the
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parties, on whether the plant can restart.
So there is that substantial time~saving.
CHAifu>v!AN HENDRIE:
The briefs of the parties are a right under the regulations?
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They are a right in the adjudicatory 6
process.
They are not a right with respect to your decision 7
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There are no rights there that correspond to your rules.
CHAIRMAN HENDRIE:
Other expressions on one versus two?
Peter?
COMMISSIONER BRADFORD:
I'm incli~ed towards one, possibly because I don't ~ully understand.
MR. BICKWIT:
In an effort to promote that under-standing, why don't I have Steve Ostrach simply to go through a model?
MR. OSTRACH.:
One possible model for a legislative hearing on the restart question --
COMMISSIONER AHEARNE:
Steve, could you put the mike on.
MR. OSTRACH:
One possible model for a legislative hearing on the restart question would be something on this order:
The Commission would issue an order to provide that 30 days following the order, any person, including NRC
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22 SEaff, would file their views on the restart question.
The order:_:would perhaps list a number of issues the Commission wished to have addressed.
It would provide the parties may address other issues at their pleasure, within certain broad parameters.
That would be 30 days from th"e date of the
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7.Commission order.
Any person would have 15 days after the receipt of those views in which to file replies.
These are both in writing.
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25 That would be 45 days.
15 days after the replies are received, there would be a hearing, at which witnesses whom the Commission chose to testify, would testify.
That would undoubtedly be NRC Staff.
I ~ould expect the Commission would have some consolidated group of outside persons also testifying.
That's 60 days.
30 days later, the Commission would issue a decision on the basis of what we've read.
CO~_MISSIONER AHEARNE:
How long are you counting that the hearing would take?
MR. OSTRACH~
On the order of perhaps two or three days, Commissioner.
No more,.
COMMISSIONER BRADFORD:
In the meantime, there is an adjudicatory hearing going on?
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25 23 MR. OSTRACH:
It either could go on concurrently, o it could wait.
MR. BICKWIT:
But I think the proceeding should --
COM1\\1ISSIONER BRADFORD:
Then what does the order in that proceeding then say?
MR. OSTRACH:
That order would be addressed --
that's basically the order youtre working on now -- would have all of the issues you wish considered, the procedures that you are deciding on, and that would be leading towards the ultimate resolution of what you want done with Three Mile Island No. 1.
MR. BICKWIT:
Including such things as long-term actions that have no relevance to this proceeding.
COMMISSIONER BRADFORD:
And the plant could starn up on the conclusion of the legislative type hearing?
MR.. OSTRACH:
Or if the Commission ordered that further actions be taken coming at the conclusion of those actions.
MR. CASE:
Conclusion and implementation of what-ever ""'...
COMMISSIONER AHEARNE:
I'm sorry, I think we cut you off before you finished.
After the hearings, what was your next?
MR. OSTRACH:
After the hearings, the Commission begins to write its decision.
It doesn't need to await proposed findings of fact~
It doesn~t need to get any of
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25 24 those materials.
It simply sits down and writes its decision.
I've listed 30 day that period.
I guesstimated 30 days for COMMISSIONER AHEARNE:
You say the Commission writes the decision on this particular model?
And then has the Commission holding the hearing?
MR. OSTRACH:
I would suggest that.
That wouldn't necessarily be true.
There would be no need will have to approve the decision, I think.
the Commission The hearing itself could be held for the Commission by a Hearing Board or by a presiding officer.
I MR. BICKWIT:
I guess I ought to say on the issue of confusion, there will be many of the same issues being dealt with in both of these proceedings, and that is what is going to lead to the confusion.
Somebody wants to present a position on an issue is told that there are two different forums you have to go before, I think he will have difficulty in grasping why that's so.
COMMISSIONER KENNEDY:
I have some difficulty, too, in seeing the end of that, whatever the decision is made by the Commission in the first phase.
If the same questions are again being litigated, I have some difficulty seeing where we would be legally, if the questions were significant enough to remain in litigation, what is it that we would have resolved in the first hearing?
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It would have made a preliminary resolution of issues ~hich were being dealt with in a formal fashion in the adjudicatory hearing.
Just as you made a preliminary resolution of such issues in~the decision to bring Rancho Seco and Davis,Besse back up.
You would acknowledge that you would make your final decision on those questions based upon the record of the full adjudication.
COMMISSIONER KENNEDY:
If,you could make my example work either way, I think, but if the Commission at the end of this legislative hearing concluded that in its judgment, the plant could start up and that this was a tentative conclusi n to be confirmed or reversed as the result of the.adjudication later, doesn't that immediately subject that decision to a cour test if, in fact, the question is the public health and safety, and the very questions which we have tentatively resolvea remai in litigation?
Wouldn't the argument be if you are going to continue the litigation of those very issues, ought you not to remain in a shutdown condition while you do it?
I'm not clear where we are when we make a decision.
COMMISSIONER BRADFORD:
You see, at that point in time, the Commission would be in the same position itts presently in on Rancho Seco, from a legal standpoint.
It seems to me that we would have had, and would still have,
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25 26 something of a three-ring circus going on, or a two-ring circus, at least, on the part of people who are raising initially-raised issues related to emergency response planning, say.
The Commission would have issued an order at that point describing what it thought were the necessary emergency response planning actions that had to be taken.
It would be a que~tion of compliance with them, and meanwhile, the same set of issues would still be being litigate before a Board.
Legally, obviously, if we can be in that situation in Rancho S_eco without having gone through this proceeding, we can be in it at Three Mil~ Island, with the legislative type of proceed-ing.
COMMISSIONER KENNEDY:
But I think there is a difference.
It's one thing to be in that position without having gone through a proceeding that is a hearing.
It's a rather different matter to have gone through it and taken all manner of testimony from parties, and still be in that position.
I think it is different.
MR. BICKWIT:
It is different.
COMMISSIONER KENNEDY:
I understand it is probably not legally significant, but it certainly is a different posture and leads to that very element of confusion.
As I think about it, even I get confused.
I'm not
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25 27 sure how the parties distinguish what it is they are presenting to whom, and to what conditions.
COMMISSIONER BRADFORD:
It does in some ways color the adjudicatory proceeding from that time on.
The Commission has made a finding to conclude the one proceeding.
It's very hard to see how that'won't have considerable influence in the adjudicatory proceeding.
COMMISSIONER KENNEDY:
And that cuts all ways, also.
The Commission has reached certain conclusions, obviously if contending parties wish to deal with those, they're going to presumably bring greater weight to bear in an argument on those issues in which they see the Commission holding a some-what different view from their own, and it's going to color the whole proceeding.
COMMISSIONER BRADFORD:
Not to mention the complexit'es with regard to this question of what the scope of the public health and safety finding is, if in fact we decide that needs toJ:e briefed and decided separately.
Then we'd have to have some common proceeding to decide that question as opposed to th two proceedings.
MR. BICKWIT:
If that ts the way you want to go.
COMMISSIONER BRADFORD:
Yes.
CHAIR'l\\ffi.N HENDRIE:
Well, the discussion has been helpful.
I understand it a lot better now.
COMMISSIONER KENNEDY:
I must say now that I think
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25 28 I do understand it somewhat better, I tend to believe that a single proceeding is more desirable.
MR. BICKWIT:
That happens to be my personal view also.
I 'just wanted to make sure that the Commission doesn't go that route because it feels it is legally compelled to.
I believe it is not.
COMMISSIONER KENNEDY:
I understand that.
CHAIRMAN HENDRIE:
Let's get on to decision points.
MR. BICKWIT:
Since the major time-sav£ng would be post-board action, I think it would be best to focus on the possibility of making the Board's decision in essence immediately effective for doing something on that order.
That is what w~ have t~ suggest, that is 0 the only substantial time-saving we think is possible.
COMMISSIONER BRADFORD:
And in one of the areas you discussed, aside from the simple immediate effectiveness, was the possibility of having a Commission decision which in effect there would be a stay of immediate effectiveness until the Commission decided whether or not to institute it.
Is that a context in which one can --
what would the criteria be for a decision like that?
Would you be proposing in effect a petroleum jobbers' standard?
MR. BICKWIT:
No, the decision is not immediately effective unless --
COMMISSIONER BRADFORD:
Unless we make it --
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25 29 MR. BICKWIT:
-- unless we make it so.
COM..MISSIONER BRADFORD:
But on what kind of standards can we use in deciding whether that decision can become immediately effective?
Normally these things come up to us from Licensing Boards, and they are immediately effective.
MR. BICKWIT:
You can use any standard you want.
That is entirely up to the Commission.
COMMISSIONER AHEARNE:
Do you see any inconsistency in that, in the phrase that we have in our order of 2nd July, which was that the unit shall remain shut down until further order of the Commission itself?
MR. BICKWIT:
No, I don't see any inconsistency with that statement.
There may be some inconsistency with your concept in putting that statement to paper, but what would be contemplated would be on looking at the record, or upon the Board's decision, the Commission would then order -- would then give its further order, which would allow the plant to restart.
COMMISSIONER AHEARNE:
But you would still see the Commission giving that order?
would then based upon et cetera?
MR. BICKWIT:
That's right.
COMMISSIONER AHEARNE:
But I gather that order be given based upon whichever way it came out, but the Board's recommendation, rather than the briefs,
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4 30 MR_.* BICKWIT:
Yes, that would be the option.
COMMISSIONER KENNEDY:
That does not go to say that that excludes further action on the part of the Commission as having ordered that, too.
It could be in the nature of a 5
tentative conclusion, provisional conclusion, to be confirmed 6
by the Commission's further examination of the record, 7
briefing by parties and any appeals which may be taken to that
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decision.
9 10 1 l 12 13 14 15 16 17 18 19 20 21 22 23 24 MR. BICKWIT:
In fact, it would be required that the Commission do that.
Under the statutorily required proceedings.
COMMISSIONER KENNEDY:
If the Commission itself issues that order, rather than having the Board's decision become immediately effective, does that have any effect?
MR. BICKWIT:
As rar as prejudgment is concerned?
COMMISSIONER KENNEDY:
Yes.
MR. BICKWIT:.No.
It would again be in a situation where you would determine that this was a preliminary decision and you would be making your final decision on the record.
COMMI~SIONER KENNEDY:
And thus, as in the case of any immediately effective order, the plant owner or operator would be essentially proceeding at his own risk, as he would put it in shape and put it in operation, with the full un~er-standing that the Commission might well reverse that decision.
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25 MR. BICKWIT:
Exactly.
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25 31 COMMISSIONER BRADFORD:
It's hard to say just what would be at risk in this particular context, but youtre right, the logical --
COMMISSIONER KENNEDY:
Well, whatever costs would be incurred in modifications to the plant, in movement forward to actually bring it back on line.
Some expense, and that would be lost.
CO.Iv".... Tl1ISSIONER BRADFORD:
I guess I was assuming for it to be in a position to actually put the plant into opera-tion immediately after the Licensing Board decision.
You would have had to have made the decision to do the modifications at some time earlier.
COMMISSIONER KENNEDY:
Yes, but, of course, they're all -- well, affecting this little discussion is that other subject we haven't discussed, which is the law -- the immediately effectiveness question as it applies to the long term incident.
MR. BICKWIT:
Now I think the Commission --
COMMISSIONER KENNEDY:
I have the feeling we are making this enormously more complicated than it need for, for whatever that observation may be worth.
COMMISSIONER BRADFORD:
Well, as to this one position, will we actually have a Board decision before us?
I don't have any objection to indicating that we would enter-tain motions at that point and do whatever was necessary to air
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 25 32 those motions and make a ruling as quickly as we could as to whether the plant had to remain closed pending the final Commission decision.
I would not make the Board decision immediately effective.
MR. BICKWIT:
I think to make the Board decision immediately effective.would be inconsistent with your first order.
To do what you just suggested.
COMMISSIONER KENNEDY:
I'm not sure what it implies when you say entertain motions.
Are you not then into a full briefing schedule?
COMMISSIONER BRADFORD:
You can brief a motion a lot more quickly than you can brief a --
COMMISSIONER KENNEDY:
Yes, you can brief the entire
- matter, But again it is a briefing schedule, and we are talking another 30 days at minimum, it seems to.me.
You're not really saving anything.
MR. BICKWIT:
Well, you have the opportunity to construct that any way you like.
You can put any time periods in you want, whereas without a rule change at least to make a final decision, you're going to have an 80-day briefing period, and a rather lengthy, I think, obviously a lengthy process in reaching a final decision based on that.
CHAIRMAN HENDRIE:
Is there a way -- there's bound to be a way -- what's reasonable and practicable could be --
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25 33 could we indicate in the order, now when we issue it, that we at least contemplate -- and perhaps have everybody on notice in making a speedy -- what should I call it? -- preliminary determination on restart, following initial decision of the Board.
MR. BICKWIT:
- Yes, CHAIRMJtN HENDRIE:
Now that would go beyond simply saying we will entertain motions or be willing to entertain motions, maybe further than you'd like to see us go.
But my own preference would be to try to save, if indeed the thrust of the Board decision is acceptable condition have beenEEtablished, and a res~art is reasonable, that what is certain to be four months and could very well be longer, that that would not necessarily be the time in which the plant has to sit there, and the costs accrue.
Now, if I were having my druthers, I guess I'd see if I could find a way to write that in, and sort of say that's indeed what we will do, but it certainly would provide --
but another thing to do would be to back away from that and just simply to note that the Commission at least will give thought at about the time the Board's initial decision to such a course,not to commit either to do it or not to do it.
I wonder if that would be a configuration which would be possible.
COMMISSIONER KENNEDY:
Let me go back to an earlier
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25 34 point.
We're making this thing so complicated, a number of permutations, we're practically exceeding our capability to deal with it, other than by computer.
It seems to me that maybe a way to attack this problem -- we've discussed a lot of these issues now, and fairl well clarified differences in approaches.
It would seem to me that it might be useful to sit down and construct a couple of models, saying, you know, pursue this course, you do these things, there are a couple of alternatives here that you can choose in this course, you follow this course, these are the kinds of things you are going to do, and here are the choices you can make.
I don't tnink we're going,to advance this exercise very far otherwise, if we don't get something concrete to look at and think through.
COMMISSIONER BRADFORD:
Mr. Chairman, when you stated your second alternative, somehow I understood it to be exactly what I understood you to be suggesting in your first, and so I must have --
CHAIRMAN HENDRIE:
No, no.
The first one would be, you know, if I could gather you all together in a great burst of enthusiasm for my thought, why, I would say, mindful of the economic costs that occurred in the service area of the licensee and so on, that the Commission will, upon receiving initial decision of the Board move to order a restart if the
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25 35 Board's decision is in that direction~ and the Commission finds no reason from a rapid review of the record to disagree with it.
And that there will follow then the briefing periods and so on.
Now, okay, so that's the druthers.
Now that may be more than I can get people to go with.
Okay?
COMMISSIONER AHEAR...~E:
Yes, I think it certainly is.
CHAIRMA_N HENDRIE:
Point two is to say, you know, mindful of these costs, the Commission will consider the possibility --
COMMISSIONER AHEARNE:
It's entirely possible that one of the conclusions,that the Board may reach a different conclusion.
CHAIRMAN HENDRIE:
If the Board recommends that the plant should not restart, or that there is some extended set of things which should be done before a restart is con-sidered, it is_inconceivable to me that we would then hold a one-week review of the record and say never mind, go ahead.
You know, it seems to me --
COMMISSIONER AHEARNE:
We might say yes, they should do these things.
CHAIRMAN HENDRIE:
I'm sorry?
COMMISSIONER AHEARNE:
The Board may have reached the conclusion that here's a set of things that have to be done.
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36 In addition to those already done.
COMMISSIONER AHEARNE:
Yes.
And it's possible we might say yes, do that rapid review, yes, tentatively we agree, they ought to be done.
CHAIRMAN HENDRIE:
That's certainly a possibility.
I think it's of considerably less interest to people who favor electricity in Pennsylvania than the other one, but that's certainly -- and if I could gather support for the proposition, I would simply like to include in the order so that people can be aware that this is in mind, that we would consider at that time taking this action.
It does appear to me, as Len said, to be the one*
place that you might cut substantial ti.me off the thing.
It seems to me that if it seems a rapid reading of the record, tha we'd find no difference with an initial decision that says okay, now they've done all these things, and they ought to be allowed to restart, that we could do that.
Now, indeed, there would follow then the regular briefings, the briefing period, assorted filings, I suppose, and more extended review by the Commission of those things, and so on.
And it certainly is within the realm of possibility, as has been pointed out, that you would say, well, you know, on further consideration we believe there's merit in the argume t that says these additional things should be done, or whatever,
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25 37 and we now impose those in addition.
COMMISSIONER BRADFORD:
Well, the second proposition didn't seem to me to be very different from the one that I had suggested earlier, that is if we --
CHAIRMAN HENDRIE:
Well, I was asking --
COMMISSIONER BRADFORD:.-- and then we' 11 have,
- I would think, virtually the same appraisal.
CHAIRMAN HENDRIE:
What sort of time scales attach one way or the other, by your instincts?
COMMISSIONER BRADFORD:
Well, as far as I'm concerne,
they'd be about the same, because whether we were doing it on the basis of our own commitment or on the basis of a motion, I'd still want the views of the par.ties as to what particular parts of the record were significant to that decision, and what arguments flow from it, so we could get about the same set of views in whatever timefrarne we set out.
a set of CHAIRMAN HENDRIE:
You would in fact ask for ----
COMMISSIONER BRADFORD:
Ask reviews of the parties.
CHAIRMAN HENDRIE:
I guess that's right.
COMMISSIONER BRADFORD:
At that point there will be a fairly substantial record that we would be reviewing and guiding ourselves.
I wouldn't want to get into that.
COMMISSIONER AHEARNE:
Well, obviously there are these two alternatives that the General Counsel might draft up.
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25 38 MR. BICKWITi I missed the last sentence.
COMMISSIONER KENNEDY:
It was the first sentence, actually, the suggestion that there were a couple of alternatives that it might be worth while drafting up.
COMMISSIONER BRADFORD:
Is it so much that you're after the alternatives, though, that youtd want, as the quickest estimate of the times, and the pros and cons?
COMMISSIONER AHEARNE:
It's obvious both are needed.
MR. BICKWIT:
Fine. I'll do both.
(Commissioner Bradford left the hearing room.)
CHAIID'"J..AN HENDRIE:
I think we have gone as far as we can go at this point.
I think to launch on another subject, we won't get out of it in less than half an hour, and we have a meeting this afternoon.
COMMISSIONER KENNEDY:
Would you, Len, please, re-do your original time estimate, 'indicating preliminarily or however, the effect of various options that we have discussed?
MR. BICKWIT:
Yes.
COMMISSIONER AHEARNE:
Could I also ask Len to write them, if I could?
We seem to have a slight difficulty~-
at least I do -- keeping track of what are the major issues that we are trying to work through here.
And if you could jot those down on a piece of paper, it might be helpful, CHAIRMAN HENDRIE: I'm sorry to hear you say that, John, because I made a list as you read them off, and as long
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25 39 as I have the only list, well, Itve got a pretty good grip on things here.
adjourned.)
(Laughter.)
But if you must, you must.
(Commissioner Bradford returned to the hearing room.)
CHAIRMAN HENDRIE:
Okay.
Thank you very much.
(Whereupon, at 12:18 p.m., the meeting was