ML22230A109
| ML22230A109 | |
| Person / Time | |
|---|---|
| Issue date: | 09/27/1979 |
| From: | NRC/OCM |
| To: | |
| References | |
| Tran-M790927 | |
| Download: ML22230A109 (63) | |
Text
@"URN TO SECRETARIAT RECORDS NUCLEAR REGULATORY COMMISSION IN THE MATTER Of:
PUBLIC MEETING BRIEFING ON SECY-79-473 -
CEQ-NEPA REGULATIONS Place -
Washington, D. C.
Date -
Thursday 1 2 7 September 19 79 ACE - FEDERAL REPORTERS, INC.
Official Reporten 444. North Capitol Street Washington, D.C. 20001 NAT10NWIDE COVERAGE
- DAILY Pages 1-61 Telephone:
(202) 347-3700
1 DIS CLAir-1ER This is an unofficial transcript of a meeting of the United States Nuclear Regulatory Corrrrniss ion held on Thursday, 27 September 1979 in t....1-ie Corrrrnissions's offices at 1717 H Street, N. W., Washington, D. C.
The meeting was open to public attendance and observation.
This transcript has not been reviewed, corrected, or edited, and it may contain inaccuracies.
The transcript is intended solely for general informational purposes.
As provided by 10 CFR 9.103, it is not part of the formal or informal record of decision of the matters discussed.
Expressions of opinion in this transcript do not necessarily reflect final determinations or beliefs.
No pleading or other paper may be filed with the Connnission in any proceeding*as the result of or addressed to any statement or argument contained herein, except as the Corrrrnission may authorize.
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25 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION PUBLIC MEETING BRIEFING ON SECY-79-473 -
CEQ-NEPA REGULATIONS Room 1130 1717 H Street, N. W.
Washington, D. C.
2 Thursday, 27 September 1979 The Commission met, pursuant to notice, at 11:10 a.m.
PRESENT:
VICTOR GILINSKY, Commissioner (presiding)
RICHARDT. KENNEDY, Commissioner PETER A. BRADFORD, Commissioner JOHN F. AHEARNE, Commissioner ALSO PRESENT:
Messrs. Malsch, Bickwit, Kenneke, Cunningham, Hoyle, and Gossi ck.
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P R O C E E D I N G S COMMISSIONER GILINSKY:
The subject before us deals with CEQ NEPA regulations, Proposed Revision Part 21, and Related Conforming Amendments, having well, why don't you tell us, Mr. Cunningham.
MR. CUNNINGHAM:
No, thank you.
of to 10 do CFR with MR. BICKWIT:
This was a matter that was prepared by OELD, by the Deputy General Counsel when he was a member of OELD.
MR. CUNNINGHAM:
He has graciously agreed to make the presentation this morning.
MR. BICKWIT:
That was a condition of his corning over.
MR. MALSCH:
I had to agree to present the paper.
COMMISSIONER GILINSKY:
Let me mention also, I understand a letter has just come in from CEQ addressed to Mr. Shapar, which deals with the subject under discussion, and you may want to comment on that.
I don't know whether vou have had a chance to look at it.
I have, and I can give some comments on it.
We also have some extra copies.around tha:we can distribute, in* case people haven't gotten copies.
COMMISSIONER GILINSKY:
Good.
-7' I I i I You can tell us how that affects our discussion here MR. MALSCH:
Okay.
Let me begin by giving some
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4 background.
In May '77, the President issued Executive Order 11991,..which directed.the Council on Environmental Quality to issue regulations to federal agencies to implement all the procedural revisions of the National Environmental Policy Act, usually referred to as NEPA.
In the same order, the President also directed all federal agencies to comply with regulations issued by CEQ, except where such compliance would be inconsistent with statutory requirements.
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'78.
The CEQ published proposed regulations in June of It received numerous comments on the draft regulations, 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc.
25 including some *,from*,the NRC.
And then the CEP published final regulations in November of '78.
Those regulations become effective on July 30, '79.
COMMISSIONER KENNEDY:
Will you at some point then, refresh our memories as tothe relevance of the final rule as it reflects or does not reflect NRC comments?
MR. MALSCH:
Okay.
The regulations by CEQ said that the current guidelines would remain in effect until that date, July 30, 1 79.
Following publication in November, the NEPA regulations were studied closely by the NRC staff, and in May
5 rnm3 of this year, the Staff submitted a paper to the Commission, 2
SECY 79-305, which informed the Commission of its analysis of 3
the CEQ's final NEPA regulations and asked for guidance from 4
the Commission as ta..,how it should approach the matter of 5
implementation.
6 The Commission met on the paper, and in response 7
the Commission prepared a letter to the Chairman of CEQ, which 8
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And that letter expressed a view that a soundaceommodation could be reached between NRC's independent responsibilities and CEQ's objectives of establishi l uniform interprocedures, and the letter stated that the CommissionvDuld develop regulations to take account of the CEQ regulations voluntarily, subject to certain stated reservations.
Now let me add here in response to Corn.missioner Kennedy's comments, that the Commission submitted several l6 kinds of comments.
The most significant comment dealt with the 17 18 19 20 21 22
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25 issue of the authority of CEQ to issue regulations binding an independent regulatory agency.
In its final regulation the CEQ adhered to its posi-tion that it could adopt regulations binding an independent agency and did not respond to the arguments made on this subject in any detail in its preamble to its final regulations.
My.understanding is that the approach that the Commission took, namely to say we undertake to comply voluntaril.
is the approach which most and maybe all independent commissions!
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.1 are also following; adopting a view that CEQ cannot bind them, but that they will as a matter of policy undertake to comply 3
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COMMISSIONER AHEARNE:
The Justice Department tended to agree that they couldn't bind them.
MR.. MALSCH:
That ' s correct.
There were several.memoranda
- COMMISSIONER.GILINSKY:
- They could* or could not'?
So that it was not just. the Comn1ission who felt --
MR. MALSCH:
.* Oh, no, that's right.
There was always some considerable doubt about this 13
. proposition.
And in fact, even beyond that the Executive Order 14
.only authorized*CEQ to put.out regulations of limiting so-15
- called procedural provisiona whereas it is quite clear, and 16 17 18 19 20 21 22 I think our comments noted to. CEQ on** the draft regulations mad it clear that they go far.* beyond. purely procedural kinds of regulations. *
- COMMISSIONER KENNEDY:
Given the Executive Order, the Justice Department's views, and our own views in the matter, our willingness therefore I assume.to comply voluntarily* does extend only to those matters which are 24 MR. MALSCH:
Yes~
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25 As a matter of fact, *in the substantive areas we
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25 either looked at them and treated what they.were doing as a good idea, or expressly reserved.
In fact, all the reservations that we have and have stated, all go into substantive areas.
So the reservations are clearly solidly based as a legal matter.
7 MR. BICKWIT:
Have we not agreed* io comply with some substantive --
MR. M-~LS.CH:
We have agreed to comply with some substantive, because they -- ih the most part they conform with present practice and didn't appear to cause any difficulties.
Where they appear to cause difficulties,we reserve.
We are not --=-
CO.MMISS IONER KENNEDY:
We are not, therefore, complying with the regulations. We are simply codifying our existing practice in this regard.
- good idea.
reasonable own, not a MR. MALSCH:
Or modifying existing practice COMMISSIONER KENNEDY:
Modifying.--
MR. MALSCH: Where we believe ourselves it is a COMMISSIONER KENNEDY:
-- where it is a good idea, idea.
MR. **MALSCH :
Correct.
COMMISSIONER KENNEDY:
So it is a decision of our compliance with the regulations.
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MR~ MALSCH:
Absolutely.
In fact, the paper and the regulation which we are urging the Commission to publish for comments says so expressly, that we are undertaking to comply voluntarily.
COMMISSIONER KEN1'1EDY: Fine.
MR. MALSCH: Well, that brings us to this paper which.is intended*to*do just that.
The action*requested here is Commission approval to publish these proposed regulations for-comment.
- We also need a decision on designating a responsible official that will serve as chief contact person Within the agency. And that is also discussed in the paper.
What I-thought I would do is discuss, first of all, the scope.of the regulations; mention a little about the overal
.plans for *Part 51; discuss briefly the reservations that the Commission-has. had.in these regulations; items it has had problems with and wanted to reserve for further study.
I will quickly go over a couple of areas where
- these proposed r.egulations do represent a departure from practice, and*then r;un over quickly the recent CEQ comments that we received just this morning.
COMMISSIONER KENNEDY:
As to those *comments, I would
- so-licit **the *views -of my colleagues.
I can. assure you that I have riot yet had time-to do more than give them a cursory reading; certainly have not had time to take them fully into
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- 12 13 14 account and therefore I wish to note here that whereas I do want the briefing to go forward, I do not intend to register a vote at the end of this meeting until after I have had time to review the CEQ views which we received this morning.
MR. MALSCH:
Let me say I only had a chance to look at them thoroughly because I didn't attend the 9:30 Commission meeting.
Otherwise I would not have read them even myself. I just got them this morning.
9 COMMISSIONER,AHEARNE:
My only comment then on that would be, I am not* sure why we should view them in any way different than any other comments we might receive where we publish them.
MR. MALSCH:
Let me say just.as a sort of preview to what my*reaction to the comments was.
The comments do not --
15 the letter does not say, do not publish. They do raise a couple 16 of objections.
And, in fact, in the recent Federal Register 17 publication which listed the status of all agencies' compliance, 18 they listed us in a category which they made it clear they 19 expected us to publish regulations by October 10th.
20 So the only inference you could draw from both: 1. the 21 letter and the listing is that they really expect us to publish 22 the regulations for comment, and I think consider their comments 23" during the. normal. commenting process.
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COMMISSIONER AHEARNE:
That was my initial reaction.
MR. MALSCH:
In fact,they say in the letter*these are 25
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25 10 preliminary and their final comments will only be given until then.
Okay.
First, let me discuss briefly the scope of the regulations.
The regulations here proposed deal only with the NRC's domestic licensing and related regulatory functions. They expressly do not apply to export licensing matters within the scope of Part 110.
They do cover imports, however.
Nor do they apply to any effects which NRC's actions might have on the environments of foreign nations or the global comments.
And this approach is consistent with the approach taken by CEQ itself in its regulations where it said it is not the purpose of these regulations to resolve the question of whether NEPA applies abroad.
That was reserved to what was then an ongoing process to --
(Inaudible.)
So in this respect, the scope of Part 51 as proposed is consistent with the CEQ regulations.
Now also the regulations say that Commission actions relating to initiating o~ carrying out judicial or civil or administrative enforcement actions are not subject to NEPA.
An 1
that is consistent also with the CEQ regulations which say thal.
So thatwo.uld mean for example that there was no requirement to. do EISs or assessments on enforcement proceeding~
like shutting down power reactors or issuing notices of I
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25 violation.
Also, on a fairly minor matter.the regulations don't address limitations on our authority derived from the Water Pollution Control Act.
That is dealt with separately.
COMMISSIONER KENNEDY: There is no environmental
- impact then assumed* on the shutting down of a power reactor?
MR. MALSCH:
- . There would be.
It is just they are excluded from the NEPA process. :iThere is no need to do an EIS.
COMMISSIONER KENNEDY:
I understand.
It is an interesting anomaly.
11 MR.: MALSCH:
. I think the concern on the part of CEQ
- is that you impose NEPA.*
-enforcement action.
obligations,.you would*discourage COMMISSIONER KENNEDY:
Of course.
MR. MALSCH:
Let me mention also the plans for the parts.* What we have got here is proposed regulations to implement NEPA in a Subpart Aof Part 51.
The old Part51 dealt only with NEPA.
The plan here is to have.a greatly expanded Part 51. At*least eventually a
. greatly expanded Part 51 p in which NEPA would be covered in*
Subpart A.
Other environmental statutes would be covered in other *subparts.
Now there are a lot of.other.environmental laws that affect the way the Commission*exercises authority which
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25 are not dealt with in our regulations.
And the theory was the time had come for us to codify some of these laws, and some of our procedures.
And that will be done in other subparts.
12 Here, for example, we would add regulations dealing with Section on Coordination Act, Clean Air Act, Historical Preservation Act and all these other environmental statutes.
So that we would have in one place, one part, the vast bulk of NRC's so-called environmental regulations.
Thirdly, let me mention the items we had reserved on for further study.
Items wher we chose not to comply with certain parts of the CEQ regulations pending further consideration of them.
These items were all the ones as noted in the Commissions letter to CEQ which they prepared in response to the early Commission paper.
The regulations say, proposed ~egulations say that we will follow the CEQ regulations with certain designated exceptions.
And these exceptions are that we would first devote further study to the requirement that we consider each alternative, give substantial treatment to each alternative considered in detail.
That we give further study to the provision which dealt with our obligation to gather information where*:there are information gaps, and our obligation to do so-called worst case analyses.
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9, 10 11 12 13 14 15 16 17 18 13 And it would also give further study tothe requirement that we prepare -- NEPA impact statements in circum-stances. where we had failed to-act rather than took positive
,action.
This latter category-deals with such things as request-for enforcement action.and petitions for rulemaking,
- where the CEQ regulations arguably would :.,at least arguably
.have required us to do EISs in all rulemaking petition denials.
Which would have*caused soi:ne problems.
We are reserving on"t-hese*for further study.
COMMISSIONER KENNEDY:
Would you take a moment and explain the logic.
It escapes me.
MR. MALSCH:. _ Behind the CEQ requirement?.
-- COMMISSIONER *KENNEDY:
Yes.
MR. MALSCH:
I think what they had in mind was situations where the law requires an agency to act, but it fails to do so._ - Arid that failure has significant adverse environmental impact.
The regulations are not so clear on -that point, and l.9
.our problem is as.written,.whatwould we do for example if some 20 21 22 24
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25 one filed a petition to shut down all currently operating nucle r-power reactors.* Obviously, if we granted the petition it would *have a significant environmental impact.
- **Therefore, argualb1y th_e
- CEQ regulations would have required us to do an E*rs before we denied or granted such a petition.
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25 14 But if we conceded*_that proposition then we would be committing large resources every time someone filed a petLtion.
So we have got to have some discretion as to how do we treat these kinds of things.
The same is true for 2.206 requests for enforcement action.
What we did is, we did not expressly acknowledge the CEQ requirement, but we made sure that in drafting our own regulations, we reserved flexibility to do EISs in any case in which we thought we ought to do one, and that would include rulemaking petitions, and enforcement actions if we really thought we ought to* do one.
But we didn't expressly adopt the requirement.
COMMISSIONER KENNEDY:
The decision as to -whether either it is required or desired rests with us?
MR.* MALSCH:
That's correct.
If we had adopted this particular provision, we would have lost a lot of discretion to do or not do one in these kinds of,circumstances.
COMMISSIONER GILINSKY:
Is it clear that they really intended that EISs be prepared in these situations where the Commission felt that, or is that just a possible reading of the way it was MR. MALSCH:
It is a possible reading.
We discussed it with them and it was* just very
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I think what they had in mind are a fairly limited j class of situations in which, as I say, there was an obligatio to act and the agency should have acted but did not, and the failure to act was more of an action-than an inaction.
COMMISSIONER BFADFORD:. But let's see, if the agency acknowledged that it should have acted and did not, then once you get over that threshold the first thing that ought to*
happen is the preparation o,f "an EIS.
MR. MALSCH: That's right.
Whenever we discussed this with them it was very unclear exactly what they had in mind.
They raised this issue again in their comments and they say some situations you will be required to do one.
I guess I agree, maybe there are situations we*
ought to do one, but the regulations the CEQ put out was not sufficiently discriminatory.
It would have removed a lot of 18
- our discretion.
So we elected to study it further, but then 19 20 21 22
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25 res;rved authority we always have to do EISs whenever we want to.
COMMISSIONER BRADFORD: I suppose the kind of situation thee.might arise is one in which someone petitions us to take an action rather than *continue to tolerate either
.a. certain l.evel of risk or a certain possibility of a certain type of emission.
So the argument could be once.we have made the
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MR.MALSCH: The only problem is, you could almost single out any area in which something the Commission is doing is having an environmental impact.
-_ And if all* you need to do to, trigger an obligation to do an EIS.,is to say. change it, then we.are talking about a lot of *resources.
C0MM:I.SSIQUER.,,BRADEORD:,I,am,not a¢lyocating it,*. I'm just *.trying to make sense of* it.
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Itis hard.
I mean everyone can see that there may.be some* situation in which you really ought to 13 do one. *But to put your finger on exactly when that is, is
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15 I think CEQ may have tried to and not been too 16 *.-successful in the regulations. They tried to in: discussions 1-,
' f 18 19 20 21 and wer.e not much more successful.
I think we. just felt.that
- .the -area was so** uncertain. that we really couldn't in good conscience simply adopt the. language they *had. We had to
- reserve.on it.
C0MMISSI0N~R GILINSKY:
Well, just deciding to 22 prepare an elaborate EIS is in itself a* major* commitment of 24 MR. MALSCH: Oh, yes.
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25 Particularly so called programmatic statements which I
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25 17 have taken an enormous amount*of resources.
- COMMISSIONER.GILINSKY: Unless-you draw.the line, there is no end to.it --
MR. MALSCH: That's the problem.
COMMISSIONER GILINSKY: -"- to the statements.
_You get statements on other statements.
MR. $LSCH: *Right. *You get statements tiered upon
- statements.
COMMISSIONER GIL.INSKY:
Yes.
MR. MASLCH:
Three other*things we reserved on.
One we simply said we wanted to reserve the right to examine_ future changes to the CEQ' s regulations to see
- whether or not we would adopt them.
We reserved the right to prepare an EIS whenever we had _jurisdiction over an activity, and we reserved the right tomake final. decisions.. on matters within our jurisdiction even-though another agency had requested-a so-called predecision referral to the Council.
The CEQ. regulations had provisions whereby there is
-a. dispute-solving mechanism set. up within CEQ and the Executive Branch.
And had*we agreed to adhere to-the outcome oi that kind of process -- we coul-d not agree to the outcome* of that
. *kind *of process without doing something. that was inconsistent
'with our -- the concept: of NRC as an independent agency..
- Bowe reserved on that.
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25 18 Okay, let me briefly run over the-~ where the proposed regulations amount to a signficant change in prior practice.
First, the regulation lists additional activities where we will do EISs beyond the ones that are presently listed.
This includes away-from-reactor spent fuel storage facilities and virious kinds of licensing actions dealing with high~level waste repositories.
We also have additional areas-where we are required to do environmental assessments.
And this includes spent fuel pool expansions on existing reactor sites, backfilling repositories and a few classes of materials licenses.
So we have reviewed the existing categories in present Part 51, and in many cases expanded them, in some cases narrowed them down.
COMMISSIONER GILINSKY: Could you briefly state the difference between a statement-and an assessment?
MR. MALSCH: Well, the idea is in the regulations that an agency does three things:
Either an action is categorically excluded, in which it does nothing.*. Or, it does a full environmental impact statement.
Now it does a full EIS, if it is listed as requiring 0one in its regulations or if the agency decides purely as a matter of discretion to do one, or if the agency after having done a so-called appraisal, decides that this is
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The primary purpose of-the appraisal is to handle
. the.doubtful cases, cases in which you are not sure whether or not you need an.EIS, and you will need to document whether 19 6
or not
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will need to.doc.ument why not.
Ano. that is the primary *purpose 8
of appraisals, to document the analysis.that the agency makes 9
- whether or not t.o do ari EIS in these doubtful cases.
10 COMMISSIONER KENNEDY:
How much shorter than an 11 environmental impact statement is this appraisal?
12 MR. MALSCH:
.Well, in concept it should be a lot 13 shorter.
14 15 COMMISSIONER KENNEDY:
How about in reality.
MR. MALSCH:
In reality they have been a lot shorter.
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- . COMMISSIONER GILINSKY:
- Do you use appraisal and 18 MR. MALSCH:. Yes.
19 The old regulation~ used the word ~appraisal."
I 20 think the *newterrninology would be "environmental assessment."
21 There is a looseness in terminology here.
22 There is a problem though, because assessments.are
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25 that apply. to agency actions even when the action :....,. a:
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20 doesn't involve an EIS.. For.example,*NEPA imposes. an obligatiol to.look at alternatives*in all cases involving.unresolved I
conflicts concerning al terna ti ve uses of available resources, 1
even though the agency isn't doing *an*EIS.
So the appraisal also~- the-assessments also 6
- perform a subsidiary* function.
- They are going* to take care 7
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- of an agency's NEPA obli_gations in situations where they do riot have to do environment.al impact !3tatements.
.For example, on an amendment to a license in which we are doing.an appraisal, the appraisal or assessment would, A, document the.fact that this doesn't result in a significant adverse environmental impact,. and also contain the agency's
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COMMISSIONER AHEARNE:
Marty, is it correct the universe now" has three ty :r;es in it?
You have EIS, EIA and categorical exclusions?
MR. MALSCH:
That's correct.
- COMMISSIONER ARE.ARNE:
So tha tthe finding of nega ti v
.declaration,* that*_*s out?
MR., MALSCH:. *That's out.
It i~.replaced *by a finding c,f no.* significant impact which must follow, which only follows an appraisal.
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. COMMISSIONER AHEAR..'l\\fE:. So that everything.that is.
not excluded, must end up*with either an.EIA*or: an EIS?
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That's corr.ect.
'Which.is whywe had to be* very careful in dra*fting the categorical exclusion categories.
And this is different in.the present.regulations
. 4 which. pretty much say unless it.is listed in these. categories,
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don't do an appraisal or an 'EIS.
6 COMMISSIONER*AHEARNE:
I understand that.
7 What is the philosophy underlying that?
Is it 8
philosophy that* there were no.t enough cases where a true findin
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. of a* negative dec:laJJation.. was,,appropriate?
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I think the concern* was* that a lot of actions were falling ~nto the cracks ih the sense that they were just never looked at.
- . COM.l'-USSIONER AHEAR..'t\\TE: But that could have been taken 14
- care of by a fourth category which would. have* been after 15 review of a negative declaration.
16 MR. MALSCH:
- Okay. Except I think what.would have 17 happened would be that* you would have, ih that scenario, sort 18 *. of.two categories. of assessments. You know, real big assessment
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- .* instead of mini-assessments.
20 And I.think thatis probably still feasible to do 21 in sort.of minor actions that are~. you know, sort of one 22 little r1otch above categorical exclusions.
I think it would.
..,,-23.. ** still be quite _reasonable to do very abbreviated assessments 24 or appraisals.
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25 The regulations are quite clear that you,don't ha~
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22 to spend a lot of time addressing issues that aren't significan and alternatives that aren't viable.
is, The conclusion you reach upon looking at an action if it is not categorically excluded, it is not really a 5
big deal, there don't appear to be any impact, there are no 6
feasible alternatives -- or the ones that do appear £easible ar 7
clearly not warranted. And I think we are talking about a brief 8
kind of assessment or appraisal.
9 In cases where it is more.doubtful, we are talking a 10 much more expanded document.
11 So,.while there is no formal division into little 12 mini negative declarations on the one hand and appraisals or 13 14 15 16 17 13 19 20 assessments on the other, I think as a matter of practice that there will be variations in the depth ~nd details of these*appraisals depending upon the action.
And there should be nothing wrong with that under our regulations.and the CEQ's regulations.
Okay, the next change I want to mention is the
.scoping process.
This is a new concept which CEQ introduced in its regulations.
And the idea is that in cases wle:'e the 21 agency has decided to do a full impact statement, it s.hould 22 very early in the process conduct a scoping process which
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of the federal action, identification of the significant issues that need detailed consideration, identification of the*
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23 issues which are not significant.and you won't want detailed
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.consideration, consideration.of who is going to prepare which 3 *.. portions of the statement, and consideration of timing in 4
rel a ti on ship to.* other federal actions.
5 It is really intehded to be an open planning process 6
which will get the agency to make early preliminary decisions 7
on basic questions of scope and detail, and will get the 8
- public *involved early on in these kinds of decisions.
9 We implemented this concept. in. o,ur. r.egtilations 10 which would call. for a scoping process and would call 11 for the director of the appropriate staff off ice or his
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designee. prepare a concise summary of the scoping process 13 just after it is completed*. And that* su:mmary would,
- in theory, 14 15 16 17 18 guide later statement preparation.
"The'.*next change'! want to mention is the relation-ship between EISs and :public hearings~
Under our present regulations, the impact statements are considered in the *NRC hearing process. If the statements 19
- made* by the staf.f in its **statement are changed in any. way in 20 the initial decision or* in.the Appeal* Board 1 s decision, then 21 that decision itself is regarded as an amendment to.the staff 22
. impact statement.
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So in,co,r:1cept in, let's say, a power reactor 24
- licensing case you have a staff impact statement and an initial Ace-Federal Reporters, Inc.
. 25 decision which the statement modifies or reaches different I
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12 13 14 15 16 17 18 19 20 21 22 24 conclusions than the staff, is also a kind of impact statement, and so on up through the line.
That concept is now changed in these proposed regulations. Instead we have built upon the CEQ's new concept of a record of decision.
The regulations require that there be a record of decision in all EIS cases. And what we have done is said that the staff will prepare a proposed record of decision in situations where either the Commission has.final authority or the matter can be subject to hearing.
COMMISSIONER AHEARNE: That was a term that I was unfamiliar with, and running into it in your paper for the first time.
Could you explain a little bit what change that makes in what now the staff would do?
'What -is a record of decision?
MR. MALSCH: Well, it is not much of a change.
I think the record of decision will, under these regulations, look very similar, maybe identical to the up-front summary of conclusions tha:you ordinarily see in a staff final impact statement.
Now the CEQ objective was iomake sure that EISs
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- became*- decisionrnaking documents.
There were some_ agencies 24 which separated out the EIS process from the decision proce*ss.
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25 And the two never clearly came together.
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25 25 We've never had that problem because we have always cons~dered EISs as a part of our decision process.
So it is not that big of a change for us.
All it would require really would be some separate attention given to, if not a separate document, at least a separate page that would be labled "Record of Decision."
And it*would be essentially a summary of the ultimate decisions reached in a NEPA review.
- What.we did 'Was, we just built upon that concept in our regulations and said, hey listen, why have the initial decision modify the EIS, which is this big, fat document and pretend that initial decisions, appeal board decisions, Commission decisions are impact *statements, which they really don't look like at all.,Instead, we will simply have them modify the record of decision which makes a lot more sence, because that is really what they are.
So we abolished the idea of modifying the EIS through the decision process and introduced the concept of modifying the record of decision for the process. And I think that would be a lot simpler, and it is more conceptually in tune with what happened.
But it is a new concept in the CEQ regulations.
It is in theory a new concept for us, but it is very similar to our practice to having summary conclusions in EISs.
We also adopted parallel procedures for having
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25 26 proposed findings of no significant impact. These would parallel records -of decision so that for example if there were an amendment proceeding and the staff concluded after doing an appraisal, that there was no significant impact, that finding would be subject to review through the review proce*ss, which again is a new concept, but is pretty much in tune with what the present practice is.
The next item I wanted to mention, and I guess the last item that I want to mention, is 'the change in present practices, the one that I just discussed with Commissioner Ahearne.
That is the concept of categorical exclusions.
It is a different concept..
Something falls into either one of the three categories, and if it is not categorically.excluded, it must be either the subject of an assessment or appraisal or a full impact statement.
We have -- this was probably the most difficult part of the proposed regulations to draft.
COMMISSIONER AHEARNE: Because it did away with the previous ability to make a finding of no --
MR. MALSCH:
That's right.
The prior regulations simply say if it is not listed, as it requiring an appraisal or an EIS, Bssentially fotget it.
You needn't do one unless there are unusual circumstances.
Also~ you know, in allhonesty wheri those regulation
ezs were put out, revised,* they.were pretty much picked Up from 2
the initial Calvert Cliff response regulations in 1971-72.
3 And I don't think-it has been since '72 that the staff has 4
,taken a,carefu.L look at the various categories of actions
.5 to see which ones might or might not require environmental 6
reviews.
7 They did take a much more careful. look this time, 27
-8 so the listings you.have are n6t only as a result of the*CEQ
.:9 regu'latd:ons, but *also a':::tesult of the staff '.s own reexamination 10 of the various categories of actions.
11 An effort was made to. bring *out and put at ieast
- 12 in.the. assessment category, some kinds of. licensing actions
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.. where the staff.really felt they *ought to. do appraisals and 14 perhaps ought to do impact statements.
- 15 Now I have.to say. that it is a difficult process 16
. because there are many a*reas, particularly areas dealing with 17 mater:j.als licensing 1.actioris.
The staff was unable* to point to 18
- a whole* series of documented environmental reviews.. And so
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- the decision to put them in a categorical exc_lusion category 20 is based upon essentially just judgments of*the people involved 21 in the process.
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.25 this is based upon experience. We cari '*.t confirm this absolutely But to do so would require an enormous amount,of resources, and
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I frankly the reason why we have this category is we would j
rather spend the resources on the problems we see as significan.
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and not. spending th_e resources doing a lot of assessments.
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So our problem was highlighted in a very candid fashion in the preambles of the rules.
The idea was, let's see what happens. Some of them, reasonable minds Can differ about, and let's find out. But at least let's propose them, get comments out and then make a final *decision.
COMMISSIONER AHEARNE.: Caul d I ask one or two que s tio s?
MR. MALSCH: Yes.
COMMISSIONER AHEARNE: I notice on page 33 where you are talking about the licensing of fuel cycle plants, et cetera, and you say if there is no significant construction impact.
Now that *seemed to be -- the other three items were listed early in the general description as part of the categorization.
And that similar point is picked up again on page 35 in number 12.
Now by construction impact,
- are you.* talking about the physical environment?
Is that what you had in mind?
MR. MALSCH: That was the idea, moving equipment in, knocking down trees, building new walls, these kinds of things. That'.s what we had in mind.
COMMISSIONER AHEARNE: Why.would that then be listed back in the previous area where you had the other three as
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25 29 being the major characteristics?
MR. MALSCH: The previous three?
COMMISSIONER AHEARNE: Yes. In.an earlier section you talked about the criteria will be no increase in the effluents, no increase in occupational exposure, no increase in the potential for radiological accident.
The emphasis is all on that, which is more on the radiological effect.
Now you have introduced the physical environment construction.
I am not questioning why it.is introduced,;
more why isn't it in the earlier --
MR. MALSCH:
In the earlier ones we tried to draft them so as to rule out construction impacts as a p~actical matter,. I think.
For example, nUI'[).ber 9, that says:
"Issuance of an amendment to a permit or license for a reactor which changes the requirement with respect to.
II This is on page 30.
II
.installation or use of a facility component located within the restricted area.
The theory was that changing a component within the restricted area, which is the plant boundary, would not likely to see any significant construction impacts. That
- ,was the the0r,y *underlying, for example in number 9, why we didn't have :the same qualification in 9 as we did in the other one.
ernm28 30 1
And I think we tried to draft the other ones in a 2
similar fashion so that we in some other fashion ruled out 3
- construction impacts.
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Hopefully we did it right.
That was the intent.
consistent.
COMMISSIONER AHEARNE: You, at least, tried to be MR. MALSCH: We tried to be consistent, that's right.
COMM.I,$S.I.ONER.AHEARNE: In the question of radiographer,s where you have categorical exclusion, is there an underlying concept there that an impact upon a small set of individuals doesn't require an assessment, whereas impact if it is on a larger set; there is some threshold on the number of people?
MR. MALSCH:
I think that is a doubtful proposition.
15 I don 1 t think we can itemize something like that.
16 COMMISSIONER AHEARNE: Well, given that we know that 17 a number of radiographers end up getting overexposed, I was 18 just curious as to the justification.
19 MR. MALSCH: The justification I think relied upon 20 the fact that for the most part exposures were within licensed 21 limits.
22 Now let me mention that we were very careful,
.23 thoµgh, in defining this whole category of categorical exclusions.
24 We reserve ourselves the authority to do either appraisals or Ace-Federal Reporters, Inc.
25 EISs.
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25 31 COMMISSIONER AHEARNE: I understand.
MR. MALSCH: And frankly, I think that will be essential to save a lot of these categorical exclusions, b~cause there are clearly going to be some items in a lot of these categories where anybody is going to look at them and say, "Oh, my God, you have got to do at least an appraisal."
And that may be true for some radiography licenses.
I don't know. And because of that and only because of that, we thought we could get along with a justification that was general. We relied upon general practice or general compliance or generally a good record. Otherwise there wouldn't be any hope because in almost all these actions there is going to be at least some licenses for whichthe justification is not going to hold true.
COMMISSIONER AHEARNE: Was the general philosophy to try to provide a list which would encompass all of those cases where under the previous Regs you would have made a finding of no significant impact, and so therefore at least you have got all the cases where you might want to reach that conclusion and you always have the provision you mentioned, that you could do an assessment.
MR. MALSCH: Well, with the exception -- you know we did review all the old categories, and we immediately removed from the old catchall, do-nothing category, anything that the staff really thought might be significant.
We then
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for the remaining.categories. And we clearly hadnot got as
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5 But I'd say most at the.actions which we previously 6
had. put in this do-nothing ca-tegory are picked up in the 7
listing here.
- However, for the first time* you see an attempt a
to.justify the exclusion; There was no attempt to justify that 9
under prior regu1a-ti:ons.
- 10.
The.other one that -- exclusion that might provoke 11
- . a lot of controveisy is *the one on Section 274 agreements.
12 Just entering into or. amending agreements ~'11. say is cat-13 gorical]y excluded.
14 The justification we gave there is the argument 15 the staff at least has always used to say it wou1dn' t do 16 assessments or impact statements. And in fact when I think we 17 made an effort to do a kind -of assessment on the recent 18 Rhode Island. agreement arid what we came up with was essentially 19
- the same* as what we come* up with
- here as a categorical 20 justification.
21 The difficulty is that the justification you come 22 up with under an agreement is a very general kind of thing that
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25 make any sense not to make some kind of generic decision.
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25 33 But again, if something came up and there was
~eason to do one in a. particular case, the regulations give us that flexibility.
Interestingly enough, CEQ didn't comment adversely on that particular exclusion.
I would have thought they might have in view of their prior involvement in some litigation on uranium mills. But they did not.
COM.~ISSIONER BRADFORD:
The inclusion of it at this point I assume does no mo:r;-e than. continue the existing practi c until we have the comments-back and decide what to do about it?
MR. MALSCH: Correct.
COMMISSIONER AHEARNE: Yes, the recommendation is continue with existing regulations until the final action MR. MALSCH: That is right~:
But also, on this particular one,the idea that this.is excluded is consistent with our present priorities.
COML~ISSIONER BRADFORD: Marty, how would that apply to a decision not.to continue to concur in an agreement, in effect to withdraw an agreement?
MR. MALSCH:
We didn't address that.
I thinkthe idea was that would be in the nature of some kind of enforcemen
- action, probably be excluded altogether.
But I think we would have to face that when we did it.
I'm not sure whether we really would want to do an assessment of something like that or not.
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. If yo~ had a particular infraction situation confronting.you, which you probably would in a situation, it would be a lot e~sier to do an assessment than you would 4 **looking_at a program prospectively and trying to decide what 5
the. impacts a:re. So that. ma:y be a* 1i ttle more amenable to an i
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assessment than just entering into an a,greement or amending one.
7 So I don't know.
8 But the idea was that that would probably be co \\ered 9
by the. overall exclusion for.. en,forcement* type. action~
10
, Of course if we took over, if we revoked an* agreemen,
i1 and took it over, then we would be issuing the l.icense and 12 they.would all be federal actions and the whole licensing area
- 13.
in the -state would now be subject to this Part 51.
14 SJ you could probably argue that quite apart from 15 the fact*this is kind of an enforcement action, the*net 16 effect of a takeover can't be any adverse environmental 17 impact because then it brings into play the whole federal 18 legal process.
19
-Okay.
Let me just conclude by mentioning, going 20 briefly over the comments.we got from the Council on 21. Environmental Quality.
The ones we just got.*
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COMMISSIONER KENNEDY: The ones we received today?
- . MR.,.MALSCH: Today.
We had sent paper over to them I think in early*
25 August. You know, they have had the paper for some time.
We
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12 13 14 15 16 17 18 19 20 21 35 had been.calling and asking --
COMMISSIONER KENNEDY:
I don't suppose there is any connection between the fact that we were going to have this meeting today and the.fact that we got the letter today?
MR. MALSCH:
I can't imagine why there would be.
COMMISSIONER KENNEDY: I am sure there isn't.
COMMISSIONER AHEARNE: I trust your insight into the development of the regulation is a little bit better.
COMMISSIONER GI LINSKY:. Te.11. us.about the letter.
MR. MALSCH:
Okay.
They had ten spe~ific comments.
The most important thing I think generally about the letter is.that they did not tell us not to publish the regulations for comment, which is what the propoaal was. And as I indicated before, they do apparently expect us to publish the proposed regulations by October 10th.
They did say as a general matter the staff did a good job.
They did say these are preliminary views, and they would only offer final comments after we publish the proposed regulations.
Now specifically 22 COMMISSIONER llliEARNE: May I ask you a question on 23 that,,Marty.
24 They really say that they won't provide comment Ace-Federal Reporters, Inc.
25 until we do our final action.
I was a little puzzled by that.
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25 36 I had thought that they would be one of the groups providing comments when we put these out for public comment. But their sentence is that 1 Council final review ill be made after the public review and comment process.
MR. MALSCH:
I think that their plan is to become involved wiili~evelopment of the regulations on a consulting basis, given these comments, which is to consider as a comment in the comment process.
And I guess *the plan would be that what we ought to do is do pretty much what we have done. with this paper, namely receive comments, analyze them, prepare a revised regulation with a preamble and a comment analys.is,. and send it to the' Commission; at the same time send it to CEQ for comment.
And I think we would get a comment right back that would look something like this, I suppose.
I think that is what they have in mirid.
I think they generally do want to be* helpful, and.they would like to see us come up with this collection of regulations that are --
implement as many of their regulations as possible. And they have in mind a*grand de~ign whereby all agencies are subject to this uniform set of regulations, which as a general objective is.a good idea.
And they would like to pursue that.
COMMISSIONER AHEARNE:
Yes.
MR. MALSCH:
Let me briefly go over the ten
mm35 37 specific comments.
2 The first one is* they had difficulty wit~ ciur
- 3.
reservation regarding 1502.14 which requires substantial 4
treatment to each alternative considered in detail.*
5 Now the reason why we reserved on this was explained in the prior Com:mi*ssion paper.. Namely,* we.were concerned that 7
this was not consistent with existing case law on the rule
- 8 of reason and wo.uld require us to change our* present 9
,,practice*of do'.ing alternative site reviews for power plants
.10 based only on reccinnaisance-level information.
11 Now the Commission has before it a separate paper on*
12 the subject, a whoJe new collec.tion of regulations that would 13 deal with th.e alternative site review process.
14
- And I* think that is the place to take up this 15 particular kind of issue.*** It is. my belief.that given: what 16 CEQ says here, namely that they do intend this statement 'be 17 read along with the existing case law and rule of reason, that 18
- what the staff has proposed in this other paper is* probably 19 20 21 22 consistent with the requirement to give !!substantial treatment to each.alternative considered in detail.*"
But, it is.. an issue treated in some depth in.the other paper.
I think the*recornmendation in the paper here is
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- I,think in the end we will -come out by saying that
38 eun36 the.regulation on this point by CEQ should not cause us*any 2
difficulty.
. 3 The second *and third comments deal with 01.1r 4
reservations dealing with information gaps and the obligation 5
to do a,worst-case. analysis.
6 We don~t think that their regulations on this point 7
are consistent with existing case law despite th~ir saying to 8
the contrary here. But beyond that, the* staff had a lot of 9
- difficulty imagining exactly what a worst-case analysis is in*
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- some situations.
And further, this is all tied up with the I'
issue of ~hould we consider Class Nine accidents
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And the. thought in the paper here was we just 13
- couldn't decide *that generic question in this paper. We would 14 just have to reserve on it.
And I think that is still a good 15 recommendation.
16 It is a matter* that 1.s addressed directly in the 17
- Muller Siting*Policy *Task Force, for example.
18 COMMIS'S IONER AHEARNE:
- . I would like to get back
- to 19
- that. after you have finished these ten.
20 21 22 MR. MALSCH: Okay.
Number four is a comment that we should provide for discretionary preparation of an EIS in all cases where we
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ha:v:e. ino,ependent authority and not maridate that in all cases.
24 And in fact,
- looking at the letter we sent to CEQ --
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25 COMMISSIONER AHEARNE:
I was puzzled by our letter
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5 39 where in two places there we said we reserve the right. Where the regulations end up saying we will.
M.R..MALSCH: I think frankly we ought to modify the regulations to say we reserve the right.
That would not only accommodate the CEQ comment but also be more consistent with 6
the letter we sent to CEQ.
I think that was inadvertent on 7
8 9
10 i 1 12 13 our part, we should have reserved the right rather than impose on ourselves the obligation.
COMMISSIONER AHEARNE: And there was a second one also, wasn't there?
On making the final decision.
Similarly in the letter we sent it was more reserve the right.
MR_- MALSCH:
I'll have to check.
14 COM.MISSIONER AHEARNE: Yes. We said in our letter, 15 NRC reserves the right to make -- and what we say here in 16 the Reg is, the Commission will make a final decision.
17 18 19 20 21 22 23 24 M.R..MALSCH: I think there again we should modify the paper to be consistent absolutely with the letter.
Number five is just the CEQ comment that they really wish you would adopt their regulation on any action requiring an EIS, and we discussed tpat a little bit here before.
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Number six is a criticism of our proposal to categorically exclude all Commission actions related to safeguards and physical security.
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25 40 Now two comments on that.
First of all, we did not I
exclude all actions. We only excluded license amendment actionsJ I
We clearly -- the regulations clearly require at least appraisa~s, and depending upon the appraisals,impact statements for generic safeguards regulations, like amendments to Part 73.
So we are only talking about license specific safeguard actions. Fer example approval of safeguard plans and the like.
Now again I think that the Council's views dating back to '75 which they refer to are probably reference to the very early letter we got on GESMO back in '75,saying you need to do a full environmental impact statement, and don't split it up and look at socio-economic and civil rights kind of impacts, which would go directly to a proposal if we had made one, to exclude safeguards regulations, which we are not excluding.
I don't think that their comment in '75 is clearly applicable to the kind of exclusion we have here, which is much more limited in nature.
Now beyond that, again this is one of those areas in which I think reasonable minds might differ.
I think what we have got here is a reasonable, rational basis for an exclusion.
And the proposal is, let's publish it for comment and see what we get back and then reevaluate it then.
For the rnost part, the kinds of actions here would
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social kinds 6f effects.
And seems it does say in* the 3
regulations that these kinds of effects _alone are never grounds 4
-for doing a full EIS, it may presumably be grounds
- for 5
6 doing some kind of an appraisal.
So, -at least on those grounds the kinds-of amendments we are talking about here:.are slightly 7
- different than the usual kinds of amendntents you would see a
dealing with effluents or power l_evels or accidents or designs.
-9 or construction.
10 Pretty much the same goes for the comments on I'
number seven.
I -think we have got a rational basis for 12 excluding them, but reasonable* minds_ might differ on this.
13 14 15 16 And-the recommendation was, let_' s put it_ out for comment and see what we get back*and reevaluate it on the basis.of comments Number e*ight, r think is a misreading of the regulation.
The ~xclusion they are talking about*here is one 17 that only *deals with materials licenses, and it is quite clear 18
-that we are not excluding any reactors-in_ any-of the categorica 19 exclusions..
In*.fact, under our regulation -a research reactor 20 21 22 is specifically_subject to a minimum appraisal.
So.I think they just, misread the regulations~;
Number nine, again it is a little misleading.
We
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25 What we ~aid was that they would be subject to an
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And the idea was that as usual you do appraisals to see whether you want to do an In any case, in these categories if on the basis of an evaluation there appear to be significant adverse environmental impacts, we do an impact statement.
The staff wasn't prepared to say that in all cases every action in these categories require a full EIS.
42 But it isn't quite accurate to say we are excluding these from the NEPA review. We are clearly not doing that.
MR. KENNEKE:
Marty, may I ask a question?
1 1 Why is it clear that environmental assessments 12j might be done?
Is that optional?
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.COMMISSIONER AHEARNE: - You only have three categories 14 15 16 1-,
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.23 24 It is an EIS, and EIA or it is categorically excluded.
MR. KENNEKY:
It is categorically excluded.
There is an option, nevertheless to do it.
MR. MALSCH: There is also an option-in the sense that if you look at something, the record for whichthe regulations require an appraisal, ~ou decide right away it is an EIS, you can go directly to an EIS and not go through the trouble of*doing a separate document.
And that would be true in these categories also.
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COMMISSIONER AHEARNE:
I think Al's point was, why not put it down in the categorical exclusion and then look at i to see whether you need an EIA. And I would imagine the 25
43 1
answer is that this is. an *area that falls on the other side 2
3 of that gray area.
MR. MALSCH: The thought was, these are the kinds 4
-of things-that are highly controversial. It would just not 5
be reasonable to pretend that.these things normally do not
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would.
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The idea was if you put them in the category which would require an EIS, it will be impossible to downgrade it to an appraisal. But you can always upgrade an appraisal to an EIS.
So there really is not much *harm in listing actions and requiring appraisals. for them as opposed to requiring.full EISs.
I think we only require full EISs in cases where we really are sure that that is what we would be doing.
COMMISSIONER GILINSKY: - Al--does that_ pretty well cover your presentation?
Al, you had some remarks.
COMMISSIONER KENNEDY:
I had a couple of questions.
COMMISSIONER.AHEARNE: So did I.
COMMISSIONER GILINSKY:
I wonder if I could let Al
- have a chance to.make a couple of comments.
- MR.
- KENNE KE : The most significant point we were making was, our thought was that you, *-the Commissioners, Ace-Federal Reporters, Inc.
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25 44 your feeling was that they were excluded at the right point, or perhaps some.more should be added or dropped from the list before. going to*public comment.
COMMISSIONER GILINSKY: Even at the proposed rule stage?
MR. KENNEKE:
Right.
You tend to bias the outcome.
COMMISSIONER AHEAFNE: I agree with Al in the sense it is certainly true, it would b~ a lot harder to add categorical exc1usions at a later stage.
It is a lot easier to take them out.
COMMISSIONER GILINSKY: You believe certain
. categories should be excluded at this stage?
Is that the point you are making?
MR *. KENNEKE:
There was some serious doubt, I think, in some people's.minds.
State* agreements, the amendments, the safeguards, transportation -- in light of other things you have on your agenda, you might wish to decide COMMISSIONER GILINSKY:
You would exclude them now?
MR. KENNEKE:
I think that is the proposal. And, as Commissioner Ahearne says, you can go back and drop the exclusions, depending on adverse comment.
COMMISSIONER GILINSKY:
So that is your proposal?
MR. KENNEKE:
Right.
I COMMISSIONER KENNEDY,: Marty I s proposal is to drop them i
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MR. KENNEKE: Marty's point is that you propose them and if somebody seriously objects,-you can drop your exclusions.
first.
COMMISSIONER KENNEDY:
I understand that.
COMMISSIONER AHEARNE: If you agree.
COMMISSIONER KENNEDY: But your point was MR. KENNEKE: You would want to think about it COMMISSIONER KENNEDY:
Your point is suggesting they be dropped now?
That's the way I read the paper.
45 MR. KENNEKE:
Dropping thqse exclusions or added?
COMMISSIONER KENNEDY: Drop.
MR. KENNEKE: Dropped.
Right.
MR. MALSCH: The difficulty with dropping them is, you have got to get comment on putting them back in. So you can always drop them, but if you want to add one, you have to go through another -round of public comment.
In the meantime, the.staff is going to have to do appraisals and devote the resources.
You know, we tried to be careful and it was really a struggle to come up with these categories.
I think what we have got is _,something that is reasonable. Some of them are going*to be controversial, and maybe the Commission on reevaluation might not-want some of them. But our thought was,
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I let's at least put them out for comment and find out what happe~s.
MR. KENNEKE:
And I think all you have to do is qualitatively look through the list and make that judgment.
COMMISSIONER BRADFORD: Do you two agree or disagree?
MR. MALSCH: Disagree.
COMMISSIONER GILINSKY:
I must say I'm not clear either.
MR. KENNEKE: We differ. in the sense that we would suggest that you all look at the qualitative list of categories and decide whether you feel they should be on the list now or not.
COM.MISSIONER GILINSKY: But, do you have any view?
MR. KENNEKE:
What I think Marty is saying, rest assured, you can go with the list --
MR. MALSCH: Oh, no, I*m not suggesting you shouldn't look at them.
I think you ought to look at the categories and see whether you feel comfortable with them.
I guess what I am suggesting is you adopt a kind of medium threshold for decision and not refuse to publish a category just because you have a few reservations about it.
.If you are really un6omfortable with a category, I think it is certainly within your authoiity to drop it.
COMMISSIONER KENNEDY: As we discuss these categories, can we.refer to page 7.
Any revision in those categories to eliminate some i
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47 of them is going to have an effect on that 56 manyears, per year.
COMMISSIONER AHEARNE: Could you first explain, on the 56, is that what NMSS estimated prior to any of the categorical exclusions, and therefore with the existing categorical exclusions that number is now some lesser number.
MR. MALSCH:
I think-that is right.
Maybe there is someone from NMSS here you could ask. Lee Rauss, I,think he helped us put together some of these figures.
MR. RAUSS:
Lee Rauss, Division of Fuel Cycle.
The answer is yes, the numbers on page 7 were if all of the categorical exclusions were croS§ed*out.
COMMISSIONER AHEARNE: With them. in; what is the right number?
MR. RAUSS:
That is still under assessment, particularly with the radioisotope licensing.
COMMISSIONER KENNEDY: This is referred to on page 13 where it says we just don't know.
COMMISSIONER AHEARNE: But the approximate feel is half of that?
MR. RAUSS:
I have with me Danny Miller, chief of the radioisotope licensing.
Perhaps Danny could help you.
COMMISSIONER KENNEDY: Is it half of the 56 or a 25 third, three-quarters?
In round numbers.
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25 48 MR. MILLER:
Would you state the question again, sir?
COMMISSIONER AHEARNE: The question is, we have got on page 7 a question that it would be 56 manyears associated with doing the environmental assessments.
And as was pointed out a minute ago, that's assuming there were not categorical exclusions.
The question is, with the categorical exclusions that are now in these proposed regulations, what is the number?
In just round numbers, is it half of 56?
MR. MILLER: It is a small fraction of that, sir.
I don't have that right at my fingertips.
COMMISSIONER AHEARNE: Would you say something like a qu~rter, then?
MR. MILLER:
I would say it is something about ten
- less, ten manyears less.
COMMISSIONER AHEARNE: Less than 56?
MR. MILLER:
Right.
COMMISSIONER AHEAR.~E:
So you are saying it would be like 46?
COMMISSIONER KENNEDY: It would be 46 anyway?
MR.. MILLER:
Yes.
. COMMISSIONER KENNEDY:
Then if all the categorical exclusions now in the paper were eliminated, there would be 10 more, so it would be 56.
49 mm4 7 MR. MILLER: That is counting -- now-I am only
.2 speaking*formaterial licensing for the 50.
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to do about 40 manyears even :With these exclusions?
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. MR. MILLER: That Is' correct, sir.
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COMMISSIONER -KENNEDY:. So it *should be recalled for 7
the record that we are talking.about 46 manyears~
a Now I have another question for the Executive
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10 How many of those 46 inanyears or 56 manyears,.
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whichever the number may. turn out to be, are now devoted to 12 that purpose?
13 COMMISSIONER AHE2\\.RNE:. Or. are budgeted.
14 MR.*GOSSICK:
I'd*have to turn back to Danny Miller.
15 Do you know?
16 MR. MILLER: No.
17 COMMISSIONER KENNEDY: Let me put the question 18 differently.
19 How mu*ch of an increase in manyear expenditure does 20 this represent over our present way of doing business?-
21 MR. MILLER:
I'd have to do a* little calculation 22 *there, sir.
I would have to-count the number of reviewers I 24 COMMISSIONER KENNEDY:. Sort of l'."oughly'?
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25 MR. MILLER: Sort of roughly, I.would say maybe 30
50
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- COMMISSIONER AHEARNE: Increase?
3 MR. MILLER: Yes.
4 COMMISSIONER AHEARNE: Are those in. the budget?
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- . That is prospective budget?
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. 1l 12 13 14 15 16 17 18 19 MR. MILLER:. Prospective budget, *not* counting doing.any EISs at the moment,* just to do our normal license review.
COMMISSIONER AHEARNE: *How**aboui; th:i.:s
- increase?
I think you just said this* would represent about
- a 30-manyear increase over** what you --
MR.*. MILLER: Counting. my present staff, yes.
COM!.vIISSIONER A HEARNE: In the FY '80 budget, or the
.py '8lbudget, are*those 30 in.there?.
MR. MILLER: Yes.
COMMISSIONER*KENNEDY: The extra 30?
- MR. MILLER: No.. It is just now current staffing.
- So we have not included --
COMMISSIONER -AHEARNE:
- So FY '80 or 1 81 budget has.
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- not got enibeddedin it the assumption: about these regulations?
21 22 24 MR. MILLER:
That is correct.
COMMISSIONER KENNEDY: So we are somewhere between
,30 *or :40.*,people; *short, a not inconsiderable number of' manyears.
.I think the record should be very clear on this that whatever Ace-Federal Reporters,* 1 nc.
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25 51 noted in the statement of considerations tha:. goes out with this proposed rule, that those additional costs are going to be incurred under the current proposition in this rule in terms of manyear expenditures.
COMMISSIONER GILINSKY: What does that stem from principally?
MR.. MALSCH: You mean which kinds of licenses?
COMMISSIONER GI LINSKY:. Yes.
Where-are,the principal increased requirements-that lead to these instruments of manyears that would be required if the rule were adopted?
MR. MALSCH:
I'm not sure.
All the ones that I would have thought -- as far as I am aware, we have excluded all the major kinds of license -- typical kinds of license activities in the categorical exclusions.
There can't be that many left.
COMMISSIONER GILINSKY:
I wonder -- sorry to cut you off there, *but there seems to be a certain amount of uncertainty and confusion on this point.
I wonder if we could get it resolved soon by having the persons involved calculate in the calm of their office.
I don't think I want to --
MR. GOSSICK:
All right.
COMMISSIONER AHEARNE: That's true.
COMMISSIONER GILINSKY:
I don't want them to work
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COMMISSIONER KENNEDY:
There are detailed estimates stated here in the paper and they include other categories of activity.
COMMISSIONER GILINSKY: But let me ask you, would that affect your decision about publishing the rules for comment?
COMMISSIONER KENNEDY: Not at all.
Well, I said that I want that included.
I want the public to understand when it is commenting on these rules,. the impact the rules have in terms of workload and costs. Because it is the very public that is being asked.to comment on the rules who is going to pay those costs. And they ought to understand that.
And they ought to further understand if they don't like the categorical exclusions, that that will represent an increase, a further increase, and therefo~e a further cost.
If that is what they want to pay for, splendid.
But I think they ought to understand that and they should not be under any misapprehensions in this regard.
COMMISSIONER GILINSKY: I think we ought to develop estimates that we feel are sound.
COMMISSIONER KENNEDY: Exactly.
COMMISSIONER GILINSKY: And that we are prepared to Acs-Federal Reporters, Inc.
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25 53 COMMISSIONER KENNEDY: Exactly.
COMMISSIONER GILINSKY: I am inclined to break at this point.
COMMISSIONER AHEAR..T\\TE: I have a number of questions still that I. at some point wish to get addressed.
COMMISSIONER KENNEDY:
I have a number.
COMMISSIONER GILINSKY:
Why don't you state them and let's see where it takes us. But, I would like to -- us to have an opportunity to have lunch.
- I.developed that bad habit somewhere along the line.
(Laughter)
COMMISSIONER KENNEDY: Since all the partiesrere are going to be here, I suspect, physically in the building this afternoon anyway -- isn't that correct that the meeting is this afternoon -- except you?
MR. CUNNINGHAM:
If requested I'll be here.
COMMISSIONER KENNEDY:
All the others are going to be. here anyway.
Maybe we could just break now and open the meeting this afternoon with just a continuation for l5 minutes of this one.
COMMISSIONER AHEARNE: I think we have a budget.
COMMISSIONER GILINSKY: We have a meeting at 1:30 with the Executive Branch.
COMMISSIONER KENNEDY: I don't have any other
- options.
rnm52 54 COMMISSIONER GILINSKY:
Raise your questions.
2 COMMISSIONER AHEARNE: You don't have to answer 3
, them. I will just give them to you.
4 There isa comment on.the July 30th date on page 10, 5
and then referenced later. And I really don't -- page 12, 6 rather -- I really don't understand what your July 30th, '79 date being embedded in there is for, and I don't really 7
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.understand why you retain that date at this stage.
The worst case issue. I do have a problem in some sense that I think that in light of the Three Mile Island series of events,the statement that you have under NRC's current risk analysis practices, the consequence of accidents, this likelihood of occurr~nce is remote,* are not given
.detailed consideration except in unusual cases.
At some point we might want to rethink that kind of phrasing.
The relationship between the emergency exemptions of.51.13.
And then there is a very broad exemption authority in 51.16.
I'm not clear on how those two relate. And it almost seems like one is subsumed in the other, and I am not really sure why they are both sitting there.
- You have a statement that our policy would be to follow.CEQ regulations insofar as: Subpart A doesn't specifically cover areas that are different. And I am not really sure what Ace-Federal Reporters, Inc.
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Discussion on the criteria for the EIAs, given the. fact that the universe consists of only three things, I'm not sure what is added by then going down through a list of various things on the EIAs.
And I guess a final comment on EIAs, we have in here that we will do EIAs in amendments to rules.
We list the
. specific sections o.f. the.rules :lo.which these are amendments as part of them. And I am not sure if there is some circular process we should be following.
Do we have to do an EIA on these amendments?
I guess that's it.
COMMISSIONER KENNEDY: I had one or two.
COMMISSIONER AHEAlli'lE: I guess I will write them all down and give them to you.
MR. MALSCH:
Okay.
COMMISSIONER KENNEDY:
I won't have to.
The bottom of page 4 of the memorandum, it says though Subpart A does not include certain implementing procedures, since there appears to be no reason not to follow CEQ procedures with respect to legislative proposals, special
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My understanding has been: that although we may accept their view as a reasonable one from our perspective for those purposes, we have included the language-verbatim from their own proposals in our regulations.
This suggests to the contrary.
This suggests that we have not included in our regulations -- we simply say we are following the CEQ regulation and that is not consistent with my understanding.
COMMISSIONER AHEARNE: And.that's part of my problem in understanding what it means by when we say that insofar as it is not addressed by Subpart A we will follow the regulations.
MR. MALSCH:
On that one we did review all the re.gulations, and the idea was that insofar as we said, insofar as we were incorporating them at that point, that was a voluntary decision on our part and we really intended to mean the same thing on the bottom of page 4.
COMMISSIONER KENNEDY:
But my understanding was that when we voluntarily incorporated, we incorporated-them in our regulations.
That's what I thought we were saying.
MR. MALSCH:
Okay.
COMMISSIONER KENNEDY:
That's what I thought all this time our intention was.
MR. MALSCH: And in fact we did that for the most part.
The general -- the footnote on page 4 and the one that
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had not -- there. were some provisions in here that we just
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did not repeat.
. 4 COMMISSIONER KENNEDY: Why not?
- 5 MR. MALSCH: Just for brevity purposes.
6 It was already getting to be 135 pages long.
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How many additional pages would that have meant?
MR. MALSCH:
Probably about*.. another, just a guess, 50 pages, perhaps.
COMMISSIONER KENNEDY:
50 pages?
MR. MALSCH: Yes.
COMMISSIONER KENNEDY: Then my understanding about 14 the character*of these regulations is totally different.
15 Totally different than what I came in here this morning with.
16 So I will have to discuss that further.
17 COMMISSIONER GILINSKY:
Let me ask, do you feel a 18 need for a further meeting on this?
19 CO~USSIONER AHEARNE: I don't need a further 20 meeting.
What I will do is write down my questions.
Now, *do they go to ELD?
57 1
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I would propose that Marty -
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it involves a certain conflict of interest, but I think it might be simpler if Marty dealt with the Commissioners' 25 offices individually, and also received from the Executive
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.* Director, an* estimate of the resources required to carry out these comply with.these* regulations.and suitably incorporate that in a*statement of considerations.
COMMISSIONER BRADFORD:
I have one short request.
There are three other items in the.OPE memo, and it notes at the end that OGC concurs* in them.
If you do I assume.that there.would be modifications in order in the draft reg itself in those.areas.
.:oo. yo:u,waht _to.* inc::qrpqrate those?
Well, beyond categorical exclusions, NEPA review, official *public involvement and.distribution.
MR. KENNEKE: *
- There it was a question of choices, as I recall, whic~;ones~you preferred.
- 'MR~ MALSCH.: When I read the OPE account I didn't feel strong one way or the other*about some of those comments.
COMMISSIONER AHEARNE: What specifically are these 17 ', now that you are referring to,.Peter?
18 19 20 21 22 COMMISSIONER BRADFORD*: Well, page 2 and 3 of the OPE memo, and then a notation at t.he end that OGC,concurs in it.
COMMISSIONER KENNEDY:
Is that you or somebody else?
(Laughter.)
MR. MALSCH:
I asked someone who was not involved,
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5 59 COMMISSIONER AHEAR..'l',rn: But what changes would* be made*as*the result of the --
MR. KENNEKE:*we would recommend that a staff person
.be*the NEPA reviewer, and that you might want to consider
- involving*. the public at an earlier time than the rules seem 6
to suggest.
And we note that CEQ 7
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When_you say a staff person -
MR.* KENNEKE: Well, there is.an alternative where someone*at H Street-,-
COMMISSIONER AHEARNE: By staff you mean --
COMMISSIONER AHEARNE:
I thought s*imilarly that was essentially where_ this other paper was.coming out.** So that.is not~ difference.-
But on the public involvement, what change were you recommending?
MR~ KENNEKE:
I don't think we are recommending a
. change other than to suggest that you would want to consider 19
- !Whether or not this was early enough. a time to involve -the 20 21 22
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COMMISSIONER AHEARNE: I guess my question is, I thought Peter was saying in~orporate. And I am not sure
.what*it is your are incorporating.
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MR. KENNEKE: The memo refers to the*comments from.the earlier part of the paper,.rather than the lesser 25
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25 60 comments, the categorical exclusions at that time, rather than these others which are less significant.
COMMISSIONER AHEAR..~E:
I am just having ~ifficulty coming to grips.with what it was that was going to be incorporated.
MR. KENNEKE: I think we are basically talking about these categorical exclusions.
COMMISSIONER BRADFORD: What are you talking about I.-
you are also talking about a -di-,ffe.rence -between the CEQ regs and our regs on distribution.
And you are suggesting an accelerated effective date.
MR. KENNEKE:
Right.
COMMISSIONER BRADFORD:
Or an accelerated rulemaking leading to,an earlier effective date.
MR. KENNEKE: I must say I hsve to go back and read that memo again.
COMMISSIONER GILINSKY: I wonder if these could be discussed individually with Commissioners' offices, and possibl we will be able to handle this by affirmation if the changes caribe agreed upon.
COMMISSIONER AHEARNE: But, what would be incorporated:
I would appreciate seeing the changes that are
- being --
COMMISSIONER GILINSKY: Certaihly.
COMMISSIONER KENNEDY:
I also would like a much
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25 61 fuller explanation of this 50 page exercise. Thct:represents something like 40 percent, and that is a pretty high number.
It is my understanding, certainly from what I had read -- a misunderstanding, I recognize -- that we were talking about a paragraph or two that was being excepted, and even there I thought that was odd because that was incon-sistent with our basic posture.
Now I find we are talking about 40 pages, or 40 percent, rather.
MR. MALSCH:
I would say it is only 40 pages, because the regulations of CEQ are very verbose in places.
COMMISSIONER GILINSKY: Well, whatever the reasons.
Thank you very much.
COMMISSIONER KENNEDY:*: I would like to know what it would take to put them.in ours, where they ought to be.
MR. MALSCH:
Okay.
(Whereupon, at 12:30 p.m., the hearing in the above-entitled matter was adjourned.)
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