ML22230A117

Tran-M790731: Public Meeting Continuation of Discussion of Issues in Restart of TMI-1

ML22230A117
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Issue date:	07/31/1979
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RETURN TO SECRETARIAT REC l=lD~

NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:

PUBLIC MEETING CONTINUA~ION OF DISCUSSION OF ISSUES IN RESTART OF 'TMI-1 Piece - Washington, D. C.

Octe -

Tuesday, 31 Jul y 1979 A.CE - FEDERAL REPORTERS, lt'l"C.

Official Reporters 444 North Capitol Street Washington, D.C. 20001 NATIONWIDE COVERAGI: - DAILY Pcges 1-4 2 Teleohon9:

(202 ) 347-3700

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• DISCLAIMER This is an unofficial transcript of a meeting of the United States Nuclear Regulatory Commission held on* Tuesday, 31 July 1979 in the Commissions'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 Commission in any proceeding.as _the result of or addressed to any statement or argument *contained_here;i.n, except as the Commission may authorize.

• UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION PUBLIC MEETING 2

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7 CONTINUATION OF1>1DISCUSSION OF ISSUES IN RESTART OF TMI-1 8

Room 1137 1717 H Street, N. W.

9 Washington, D. C.

10 Tuesday, 31 July 1979 11 The Commission met, pursuant to notice, at 1:10 p.m.

12 BEFORE:

13 DR. JOSEPH M. HENDRIE, Chairman 14 VICTOR GILINSKY, Commissioner 15 RICHARDT. KENNEDY, Commissioner 16 PETER A. BRADFORD, Commissioner 17 JOHN F. AHEARNE, Commissioner 18 PRESENT:

19 Messrs. Bickwit, Ostrach, and Crane.

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P R O C E E D I N G S (1:10 p.m.)

CHAIRMAN HENDRIE:

Why don't we kick off.

The subject is the TMI-1 order.

We have some comments from the general counsel to assist us in getting on with the discussion of the order.

I think, Len, do you want to tell us where you have gone here, and then we will move on from there?

MR. BICKWIT:

Yes.

In this memo, we have attempted 10 I to summarize the results of Friday's discussion and draft 11 some la.nguage in accordance with agreements that were reached.

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2.5 Where no agreements were reached, we tried to draft up the options.

We have also included some options for the items that were not addressed on Friday..

As the first order of business, we suggest that a draft order which would extend the period of time for issuance of the supplementary order to the July 2nd order, on the assumption that you won't finish up by the expiration period or the required period for a new order, which is tomorrow.

The draft order is Attachment A to the memo.

And we have a few proposed additions to that draft order, if the Commission is included to go ahead with something of that nature.

COMMISSIONER GILINSKY:

Was that on the assumption that we continue with the research briefing, that you didn't

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4 think we could make it?

CHAIRMAN HENDRIE:

I'm not sure whether we will make it by going through the afternoon.

I have had some expression of interest and a little time to think about some of these things, and we might or might not reach a majority decision on an order if we cancel the briefing.

But I don't have any place to take the budget.

I think we need to go ahead with that briefing, to have such discussion as we can reasonably have between now and 2:30, and to continue with TMI-1 meetings, which I will sandwich in.

There may be some further work the counsel could do for us leading out of today's discussion, just as the memoranda in hand flowed out of the last discussion.

COMMISSIONER GILINSKY:

It seems to me there's a good deal to be said.

We ought to try to make these deadlines if we possibly can, end I think there is as much money involved here as in the research budget.

It would seem to me not inappropriate to push on.

CHAIRMAN HENDRIE:

Well, since I have reason to believe that there won't be a unanimity of view on the Commission, and since on other occasions and on other subjects we have all variously deferred to one another where somebody 23 wanted more time to mull over circumstances, why, I don't reall 4I 24 feel that we can make it.

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25 What I do have in mind -- I don't know whether we

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can manage the meeting tomorrow or Thursday -- we will if we can manage it.

But in particular, what do people's schedules look like on Friday afternoon?

Now, Peter has got to go away Thursday afternoon and Friday morning, but could be back.

COMMISSIONER AHEARNE:

I would suggest tomorrow, if we could.

We're scheduled tomorrow afternoon for a preliminar budget markup.

And I would suggest, as far as I am concerned, before doing any preliminary budget markup, I would at least like to take a half a day to think through, having heard all of the budget reviews.

So I would suggest tomorrow afternoon is good.

COMMISSIONER BRADFORD:

I can't do that.

I've got to be in East Lansing tomorrow night -- no, I'm sorry.

That's Thursday night.

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CHAIRJYlAN HENDRIE:

So tomorrow: afternoon, as I reca11i it is Wednesday afternoon.

don't we try that?,

I think everybody is here.

Why Dick, we're talking about further meetings on TMI and an expression of interest on pressing forward.

It looks as though we could put in some substantial time tomorrow afternoon by doing without that markup session or all or a good piece of it. Is that too soon for you?

COMMISSIONER KENNEDY:

I don't know what my calendar shows.

Otherwise it's fine.

CHAIRJl.1AN HENDRIE:

I think if you can manage it,

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Peter, let me know as soon as you can what the difficulties are on Friday.

COMMISSIONER BRADFORD:

If the rest of you can be here, I can get back.

CHAIRMAN HENDRIE:

Okay, let's try and do that.

Sam, let us note here that we will go to TMI-1 tomorrow afternoon and Friday afternoon.

Now, I guess the Friday afternoon session, Sam, why don't we put budget markup session or TMI-1, because if we don't *need it for one we will need it for the other.

And if you have trouble with that, Peter, why, give me a holler.

Vic, you are going to be away Thursday afternoon as well, but you are going to be back on Friday?

COMMISSIONER GILINSKY:

I don't think so.

CHAIRMAN HENDRIE:

Well, why don't we go ahead.

I think it would be useful as a first step, since, as I say, I am not inclinied to think that it will take us a couple of more days discussion.

I think we ought to amend as we see fit the extension order to the 10th and agree on the language of that, and turn to the other issues back in the base order.

Len, did you say you had things to add to it or subtract from it?

MR. BICKWIT:

Yes.

As drafted, the reference in the first sentence to "further order" may be confusing when it's put together with the reference in.the second sentence to

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further order, since we mean something different by that.

So to differentiate, we would say at the end of the first sentence, "further order of the Commission itself permitting restart,"

period, and then strike "further" in the second sentence.

So that the second sentence would read:

"Provided that it would also issue an order within 30 days."

And in the third sen-tence strike "further" again.

COMMISSIONER KENNEDY:

I would have struck most of the sentence. It doesn't even necessarily represent an adequat description of the facts.

MR. BICKWIT:

Our feeling was that it did.

COMMISSIONER KENNEDY:

I think all it says is the Commission has not yet completed resolution of all the legal and technical issues involved, accordingly.

I don't wish to characterize the progress or lack thereof, nor do I think it relevant.

COMMISSIONER AHEARNE:

I have no problem with striking that out.

CHAIRMAN HENDRIE:

Any objection to doing without "substantial practice"? "'I'he Commission has not yet completed, accordingly," et cetera.

Good enough?

Let's see.

Can I ask for a decision of the Commission?

COMMISSIONER KENNEDY:

Are we finished with that sentence?

I have another change.

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Go ahead.

COMMISSIONER KENNEDY:

I think verbosity is not needed, either.

I think the last sentence need only say:

"Accordingly, the Commission hereby extends the period of time.'

CHAJS.RMAN HENDRIE:

What would you recommend now?

"Accordingly, the Commission" --

COMMISSIONER KENNEDY:

"Extends the period of time until Friday, August 10th.

CHAI.RMAN HENDRIE:

Objections from anyone?

The legal staff, Commmissioners, what have you?

MR. BICKWIT:

No, that is perfectly legal.

COMMISSIONER KENNEDY:

So now it is not only factuall correct, but legal.

CHAIRMAN HENDRIE:

Let's see.

Do we have any other additions or subtractions?

(No response.)

CHAIRMAN HENDRIE:

Let's see.

We will need this order -- I think we're going to need this order, because by the time you get there, even if we were in complete agreement tomorrow afternoon -- I think we ought to just vote for it with the understanding that if it becomes unnecessary because we all agree with one or another of this this afternoon in 15 minutes, why, it won't go out.

On that basis, I would ask us to -- all those in favor of the extension in the order as amended, to indicate

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by saying aye.

(A chorus of ayes.)

CHAIRMAN HENDRIE:

So ordered.

Now, back to substantive matters.

Let's see.

Of the issues listed we have hacked away at, we had a sort of tentative agreement on the language involved in the Commission review of licensing board decisions on cross-examination.

On discovery it was kind of a split proposition.

It was a 2-1-1 division of the house.

Why don't we review that and see if we can either confirm in the way that came out or come to another decision?

Len, would you help us distinguish between the 9ptions, and let's see where people would like to move.

MR. OSTRACH:

There a.re three options on discovery.

COMMISSIONER KENNEDY:

Before we get to this, one minor thing.

In passing by the language which is included in A and B of Roman II, I assume that we are not signifying assent to or acquiescence in this as language.

I am not prepared to. give that.

CHAIRMAN HENDRIE:

Certainly not in any finally and irrevocable sense.

COMMISS[:ONER KENNEDY:

Fine.

That's all I wanted to know.

That's fine.

COMMISSIONER AHEARNE:

But Dick, do you have some significant substantive matters?

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10 COMMISSIONER KENNEDY:

I want to have the opportunity to look at it, which I have not had.

MR. OSTRACH:

There are three options for discovery.

The first would be to compile a repository of all information about the Three Mile Island accident and to require parties in the TMI proceeding to resort first to that information compilation before resorting to any discovery against one another.

Any party who then does wish i'r.to employ the 9

discovery process against another party would have to satisfy 10 1

the licensing board that the information he or seeks is rele-ll vant to the proceeding, is not available in the data compila-12 13 14 15 16 17 18 19 20 21 22 23 24 I Inc.

25 tion, and that permitting the discovery will not result in an undue delay or impose an undue burden on any party.

And at the last session we discussed that our intention in using the word "undue" there was delay or burden out of proportion to the relevance of the information sought.

The second option would be to provide that the Commission's normal rules for discovery in adjudicatory proceedings would apply to this TMI-1 proceeding.

It would also create a compilation which would be available for the parties, and it would also provide that it would be an adequate response to a discovery request to say that the information sought is available in the compilation, provided the person asking for the request provides sufficient information to locate the document.

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25 11 This would then be concluded by saying the licensing board may, and when appropriate should, in the interest of justice, limit the extent or control the sequence of discovery to prevent undue delay or imposition of an undue burden on any party.

That is a power that it already has under the Commission's regulations.

COMMISSIONER GILINSKY:

Is that a direct cite to the regulations?

MR. OSTRACH:

It is not a direct quotation from the regulations.

I believe each of the words is in the sections of the regulations that we refer to.

We move them around a little bit.

COMMISSIONER AHEARNE:

Could you explain that a bit more when you say you move them around?

MR. OSTRACH:

I.can read you the regulations.

2740(c) provides for protective orders.

It says that" "In a discovery proceeding the presiding officer may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense" COMMISSIONER BRADFORD:

How has "embarrassment" been defined?

No, donlt worry.

That is just an example that comes to mind.

MR. OSTRACH:

The licensing board has power to provide the discovery, except certain matters may not be inquired into.

The scope of the discovery may be limited to

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12 certain matters or the discovery won't be on certain subjects.

2740(d) provides that:

"The presiding :officer, for the convenience of parties and witnesses, and in the interest of justiice, may control the order by which methods of discovery or the sequence by which methods of discovery may be used."

MR. BICKWIT:

I think the short answer is when we use the word "may" that is parroting the order; when we say "should" that is going a slight step beyond.

COMMISSIONER KENNEDY:

What's the difference between the second and third?

MR. OSTRACH:

The last sentence.

CHAIRMAN HENDRIE:

No. 3 simply lacks the admonition that the licensing board may and when appropriate, et ceterla, et cetera.

COMMISSIONER KENNEDY:

I know.

But I'm asking if that is really a difference, because the regulations call for that anyway.

MR. BICKWIT:

The regulations say "may."

This says "where appropriate, should."

COMMISSIONER KENNEDY:

You visualize that as a significant difference?

MR. BICKWIT:

No.

MR. OSTRACH:

Its only significance might lie in the fact that in normal practice licensing boards, like federal courts, do not participate at all in discovery proceedings

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13 unless the parties really bring an issue to them, and they view their role as essentially passive.

By pointing out to a licensing board the availability of these alternatives, it might be more willing to take an active role in monitoring discov,ery.

But certainly it already has each of these powers and there was no intent here to give it any powers that it otherwise would not have.

COMMISSIONER GILINSKY:

It seems kind of odd to be reminding them of the rules, unless we are in fact instructing them to take certain a:::tions.

I mean, do you interpret this as an instruction or just a reminder?

MR. BICKWIT:

An instruction, where appropriate.

COMMISSIONER BRADFORD:

Where appropriate in the interest of justice.

COMMISSIONER KENNEDY:

There's an interesting column in this morning's "Washington Post" concerning the word "appropriate." It is instructive in itself.

CHAI.RMAN HENDRIE:

Other comments?

COMMISSIONER AHEARNE:

Someone writing in to us, bringing the board in into the issue of trying to decide ques-tions of when discovery should be allowed and to what extent would, rather than expedite, could very well just bring on a new morass of paper and slow things down.

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7 14 MR. BICKWIT:

We addressed that in our previous memo, and it does add and subtract.

In our view, it would speed things up rather than slow them down.

It is not as if the board played no function in discovery and the rules are no motions or pieces of paper in the absence of this.

It deals with it at a different stage.

COMMISSIONER GILINSKY:

Let me ask:

If this is in 8

fact not a reminder, but an instruction, why would you give 9

different instructions to this proceeding than in other 10 I proceedings?

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My answer would be that, first of all, it is an instruction that I would be comfortable giving in every proceeding.

Secondly, in this case there is no denying that there is sentiment on the Commission to move as quickly as possible, in light of the fact that this plant is down and there is feel-ing that if it should operate, the proceeding ought to move as quickly as possible to so allow it.

MR. OSTRACH:

There is the point that this is a plant shut down subject to an immediate order.

These people have not had the benefit of a hearing before the order ordering shutdown was conducted.

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it should keep that fact in mind.

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25 COMMISSIONER KENNEDY:

That reinforces my thought

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15 that the counsel's acceptance of that principal as a general principal is a wise one.

I couldn't imagine distinguishing this from other cases in the interest of justice.

COMMISSIONER BRADFORD:

That was exactly my diffi-culty.

It really does seem to me that unless one is somehow underlining this proceeding and saying, in this one we want you to emphasize this section more than you normally do, there just isn't any reason for including it.

Now, I do see it working both ways.

That is, if you pick through the right phrases you get something to the effect that the board may, when it's appropriate in the interest of justice, prevent burdens in discovery of any party against any other party.

And there are obvious situations where they shall.

That doesn't speak to the question of whether the hearing will move more or less quickly, but whether one or more parties will be more or less burdened.

But that too is already in the rules.

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I think there are distinguishing 2

features that make the promptness aspect, bring it a little bit 3

more to the fore here.

The normal CP case or OL case, why, the 4 parties are well aware when these things will arrive* at appro-5 priate stages for hearing.

So, discovery could be carried out 6 over a reasonable period while other things are going on.* That 7

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We are sort of starting from scratch, and I at leas~

have expressed on several ocoa~ions concern over the length of time that apparently is required in this,proceeding or will be required in this proceeding to come to a decision.

It seems to me that whether it is up, down, or sideways, that we owe I as:J l3 expeditious a decisionmaking process to the parties as is con-14 15 16 17 18 19 20 sistent with fair and adequate treatment of the issues.

Let me resound the 2-1-1 split, since there is an additional vote, and see if I can devleop a direction out of this.

Vic, you didn't get your two cents' worth in before.

COMMISSIONER.GILINSKY:

Well, I would think the usual rules would apply.

I certainly don't object to a general state-2l ment in the order saying we would like this to be a proceeding 22 which is handled with some discipline, but as for the specific 23 questions of discovery, I would treat it as we have handled 24 other proceedings.

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So that would put you at three or

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17 perhaps two.

Okay, we have managed, then, eithe_r a 2-2-1 or 2-1-2.

Could I encourage, in the interest of seeing whether we could move this point, would people be interested in converging on 5

Option 2, since it is in the middle?

6 COMMISSIONER KENNEDY:

I would not.

7 CHAIRMAN HENDRIE:

Let me sample the other side of 8

the thing.

9 10 11 12 13 COMMISSIONER BRADFORD:

What were you doing?

CHAIRMAN HENDRIE:

I was trying to see whether people would be interested iB moving off the extremes toward the middle COMMISSIONER BRADFORD:

Toward Option 3?

CHAIRMAN HENDRIE:

Toward Option 2.

You're trying to 14 count me into a corner.

And Commissioner Kennedy will continue 15 16 17 18 19 20 21 22 to feel that the first option is the right one.

Do I get any other sentiment?

John has stood there since the beginning, so I guess he will continue.

Vic, did you ever decide between 2 and 3?

COMMISSIONER GILINSKY:

Well, I would go with 3.

COMMISSIONER BRADFORD:

Are either of you interested in moving up to 2, to see if I can develop a consensus in the 23 middle?

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COMMISSIONER BRADFORD:

I would be intersted in know-25 ing what John is considering.*

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I 18 CHAIRMAN HENDRIE:

If he goes away, that could develop 2

a majority somewhere else.

3 COMMISSIONER BRADFORD:

I guess I should have met with 4

him before the meeting.

5 COMMISSIONER AHEARNE:

Yes.

2 still seems to me to be 6

the appropriate approach.

Perhaps Peter and I can meet after 7

the meeting.

But I would still think 2 is the right way.

8 CHAIRMAN HENDRIE:

Well, let's see if I can't pry 9

somebody loose to move toward the center.

10 I COMMISSIONER GILINSKY:

Well, it's obviously going to 11 be 3, with -or wi,thout,*that sentence.

We just have to work it 12 out.

13 14 15 isn't it?

16 CHAIRMAN HENDRIE:

Or the first option.

COMMISSIONER GILINSKY:

That seems kind of unlikely; CHAIRMAN HENDRIE:

I don't know.

It is 2-1-2.

If 17 you have a reason why it should more. likely move down than up, 18 why, help me along.

19 Well, let's leave it 2-1-2, 'for the moment.

20 How about the satisfactory completion of required 21 actions.

We agreed last time that the condition that qbtains 22 for an OL is a reasonable way to leave it.

And this is counsel's 23 version of the right way to reflect that.

A 24 The immediate effectiveness question

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25 MR. BICKWIT:

Mr. Chairman, before you move on, let

pv4 19 me just make two points about that language so you are clear.

2 In the draft there is reference to the fact that this satisfac-3 tory completion shall not be an issue in the hearing, and we 4

understand this language as modifying that language, so that it 5

would be possible for this to become at issue at*the hearing at 6

the board's discretion.

7 And secondly, it is not precisely the same as OL 8

treatment, the way we had drafted it, because the OL rule that 9

we are referencing allows for operation prior to satisfactory 10 ! completion of some items, and we had understood in your previ-11 ous discussions that you wanted completion as a condition to 12 operation.

13 COMMISSIONER KENNEDY:

That's not what I visualized.

14 As a matter of fact, I wrote in my notes that we were going to 15 proceed on the same basis as with an OL.

16 MR. BICKWIT:

It was unclear to us.

That is why I 17 raised the point.

It was unclear to us exactly where the Com-18 mission was.

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COMMISSIONER KENNEDY:

At least now my view is clear.

COMMISSIONER BRADFORD:

In the case of an OL, they can 21 proceed without satisfactory completion; that is, completion 22 satisfactory to the staff.

So, you' re talking here not about 23 !having -- or in the OL case, not about having the board be 24 satisfied, but having the staff be satisfied?

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25 MR. BICKWIT:

Yes.

Unless the board wants to be

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2 Let me read from 50. 57 (b).,-, It says:

"Each operating 3

license will include appropriate provision with respect to any 4

uncompleted items of construction, and such limitations or con-5 ditions as are required to ensure that operations during the 6 period of the completion of such items will not endanger public 7 health and safety.

It is contemplated that operation would be 8 allowed prior to completion."

9 COMMISSIONER BRADFORD:

The way I understood where we lO I were last time is that we were putting the board on the same 11 12 13 14 15 16 17 18 19 relationship to operations as a board in an OL proceeding, but that as a separate matter we have said that the staff had to be satisfied as to the completion of the acti!ons.

And in that sense, it would be different from an OL proceeding in which the staff would have some option to permit operation as long as the staff were satisfied that interim steps could be taken.

MR. OSTRACH:

In one sense, this is different from an operating license proceeding, but in another it isn't, because in a sense, the world of actions is divided into short-term 20 1 actions and long-term actions.

And with respect to the long-2l term actions, those are like the actions during which opera.;..

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23 COMMISSIONER BRADFORD:

What you're saying is that 24 decision is being made at the point at which we can't --

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Yes, where the licensing board cuts that

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And once you analyze it that way, I think the parallel wi:th the OL stage is exact.

The board approves the taking of certain requirement of certain actions, long and short term.

As to the short-term ones, the staff says they are completed, and then with the Commission's review that we discussed, prior operation can begin while the long-term actions are being completed.

So, I believe the language is essentially consistent with the OL procedures.

COMMISSIONER BRADFORD:

Was there any particular lO I reason for saying the board "shall have authority to require 11 12 13 14 15 16 17 18 19 20 21 22 23 A

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25 staff," as distinguished from requiring all parties to perform detailed steps?

MR. BICKWIT:

Only that, in the normal case, staff would be the ones certifying completion.

naturally turn to staff for such advice.

The board would MR. OSTRACH:

Actually, there is another reason, as well.

We were considering a situation where the board was going to order certain actions to be taken, contingent only on staff.

certification, and the board might want to know, since the staff would have that authority, what staff was going to view as the steps that it was going to approve.

For comparison purpose, the parties might want to com-ment on what staff proposed as the detailed steps necessary to effectuate it, but it is only the staff, it is describing what they intend to require.

That*is why it is only the staff that

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be enough. "

3 COMMISSIONER BRADFORD:

The only reason I think it 4

may matter is:* In this case, it's at least possible that emer-5 gency preparedness could play a larger role than it does in most 6

OL situations, and you have at least a possibility of parties 7

such as the surrounding towns or the state or others who are 8

going to have a role to play in the programs.

That might be 9

of value, too.

10 MR. OSTRACH:

We did not intend to prevent those par-ll ties from giving their views on what they thought would be 12 sufficient steps.

We thought that would be best done in terms 13 of commenting on what staff felt it was going to accept as 14 satisfactory completion.

15 MR. BICKWIT:

In the second sentence it says:

"With 16 respect to any uncompleted items, the board shall have authority 17 to take such actions or impose such limitations or conditions."

18 By this reading, it will be capable of going to anyone it wants 19 in order to guide it in the imposition of such limitations,and 20 even to have a hearing on the question.

21 22 CHAIRMAN HENDRIE:

Other comments?

(No response.)

• 23 A

24 CHAIRMAN HENDRIE:

If we leave the last phrase on there, indeed, the short-term actions which are specified in

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25 the order are aimed at comple:tion before restart.

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9 23 COMMISSIONER KENNEDY:

Those are consistent with the actions from the other B&W reactors.

COMMISSIONER AHEARNE:

Except in that table.

CHAIRMAN HENDRIE:

They are consistent, Dick, provide, I

we ~ecognize that there has been a sort of an ongoing develop-ment, and that because this one comes later it has more in the initial stages.

The other plants will have to do the same things.

COMMISSIONER KENNEDY:

I thought that the words lO ! "short-term actions" had a generic sort of mea~~ng.

I.

l 1 12 13 14 15 16 17 18 19 20 21 CHAIRMAN HENDRIE:

The short-term actions here are not limited to an identical with.

There are some more of them.

COMMISSIONER KENNEDY:

But if an order ala the Rancho Seco or Davis-Besse or any other is going out in this case, it would have,included those, anyway.

CHAIRMAN HENDRIE:

Yes, except for such specific ones that show that you don't get mixed up with TMI-2.

COMMISSIONER KENNEDY:

But they are the sort of class I I

of short-term actions that we talked about in the past.

So that\\

I seems to me to be wholly appropriate_, and, indeed, necessary.

CHAIRMAN HENDRIE:

I will note the short-term actions 22 include complying with the A regulations of NUREG-0578, and I 23 24 1-u:e-Federal Reporters, Inc.

25 think it is clear enough from the table, but I will point out that, for instance, that one of the Category A items in that table is a commitment to a relief and safety valve testing

pv8 24 program, which-is going to take an extended period of time.

2 And the requirement for completion before filling, checking this 3

box on a possible restart decision is that the cormnitment to the 4

program, a program description and schedule, and commitment to 5 it, be made and not that the relief and safety valve testing 6

be completed.

7 COMMISSIONER AHEARNE:

Is that what the words would 8

mean, Len?

9 MR. BICKWIT:

Now, you're saying, under these words, 10 I you are saying that completion of the short-term items is a 11 condition.

12 CHAIRMAN HENDRIE:

Well, that's why I bring it up.

13 I had better point out that the so-called "short-term items" in 14 Table B-1 include specimens as follows:

Short title emergency 15 power supply requirement, position description, complete imple-16 mentation.

That is unambiguous:

You do it before you check 17 that box for restart.

18 Next,, relief and safety valve testing is the short 19 title.

Position description i~ submit program description and 20 schedule.

It appears to me that one conforms with Table B-1.

21 Category A items if you submit the program showing a program 22 description and schedule and commit to a program that you are 23 indeed not under this language required to complete the testing 24 of the valve.

But I think we need to understand that.

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25 MR. BICKWIT:

Yes, I think that is a reasonable

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• -Federal Reporters, 25 interpretation. It could be read otherwise in.this language.

2 But I think that is a reasonable interpretation, if that is your 3

understanding.

4 COMMISSIONER KENNEDY:

If it could be otherwise, then 5

I suggest that we fix the language so it can't.

6 MR. OSTRACH:

Actually, Commissioner, the short-term 7

actions that are defined here, the short-term action that the 8

licensing board is going to order, which may well differ from 9

the short-term actions as describ~d in the notice of hearing 10 I and to the extent that the licensing board, the staff presents 11 to the licensing board that issue that the Chairman was just 12 describing, I am sure that they would present to him such terms 13 as "submit a recommendation," arid the licensing board would then 14 order that there be some bidded such proposed plan that was 15 taken care of.

16 COMMISSIONER AHEARNE:

Steve, are you saying then that 17 the board, when it says there, "short-term actions," it does 18 not refer to the term "short-term actions" as referenced" in the 19 order?

20 MR. BICKWIT:

No.

It may change the actions.

21 MR. OSTRACH:

These are the ones the Commission. is, in 22 effect, proposing but the ones the board orders will depend on 23 how the hearing turns out.

24 CHAIRMAN HENDRIE:

I must say I don't see a need to Inc.

25 change the words. I think:th.~y are all all right.

I just want

pvl0 26 to make sure we all understand.

2 COMMISSIONER KENNEDY:

I am getting confused about 3

what kind of an order this is. This order appears to be an order 4

by the Commission we are sitting and discussing now,reads:

"The I

I I

5 licensee shall take the following actions with respect to TMI-1,~

6 and then it lists all of these things.

7 I assume, since one of them was that the licensee 8

shall comply with Category A recommendations as specified in 9

Table B-1, that he was being ordered to do it and that the 10 licensing board wasn't going to change all that.

Yet, that is l 1 12 13 what I thought I was just hearing.

MR. BICKWIT:

You were just hearing that.

COMMISSIONER KENNEDY:

What is it he's supposed to do, I

14 then, during the process of the hearing?

15 MR. BICKWIT:

I Ultimately, what he's supposed to do 16 are these actions plus or minus those recommended by the board I

17 and ultimately approved by the Commission.

He must do those 18 actions as a condition to restart in his plant.

If he chooses l9 to do those that are in this order now, it may be that he is I

20 doing the wrong actions.

21 We will not know that until a conclusion 22 COMMISSIONER KENNEDY:

That's the same discussion we 23 had with respect to the long-term actions.

A 24 MR. BICKWIT:

That's right.

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25 COMMISSIONER KENNEDY:

Well, why don't we just go back

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9 10 l l 12 13 27 to my earlier statement?

CHAIRMAN HENDRIE:

It may be a more agonized situation here in many ways, but it's not all that different from either the CP or OL stages.

At the CP stage, the applicant has pre-sented an application, he's done a lot of engineering work and invested a lot of money and engineering hour~, if not hardware, on the basis that he understands what is required of him, and I

that he is carrying out those things he understands to be required.

And he believes that he can make~ case for that.

And at the OL, he has built a plant on the basis that he believes meets the requirements and will be licensed for operation.

But after all, in neither case does the permit of a i

14 license issue in fact through a.proceeding, if there is one at 15 the OL stage.

There always is one at the cP:stage.

Until the 16 proceeding in question is completed, the ini-t;:ial decision is 17 18 19

issued, out.

and, in fact, until whatever appeals.are made are worked I I

COMMISSIONER KENNEDY:

I think there is a difference.

20 The Commission has just said -- the Commission which is appoint-21 ing the board has just said -- in order -- he must do these 22 things.

23 MR. BICKWIT:

We haven't said that.

What is contem-24 plated is it would not say that.

It would say as a condition

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25 to restart, do whatever the following tells you and whatever the

pvl2 28 Commission ultimately says, you do.

2 COMMISSIONER KENNEDY:

I am glad we have extended to 3

August 10, because we have a good deal of discussion to go 4

through here.

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MR. BICKWIT:

It says these are our best estimates as I

to what you must do as a condition to restart.

COMMISSIONER KENNEDY:

Okay.

CHAIRMAN HENDRIE:

Recognizing discussion to come 9

further on this point, with regard to the language;under com-10 1 pletion of required actions, I guess it still looks all right.

11 12 counsel COMMISSIONER KENNEDY:

Except for the fact that the suggested that the words might have oeen read differentlt 13 from the way we understand them.

And my sug~estion, in that 14 case, they ought to be rewritten so they will be understooddin 15 the way we understand them.

16 17 18 19 MR. BICKWIT:

That can be done, bu~ I just want to add that that may not have any consequence in the end, because, as Steve points out, it will be the board and, flinally, the Com-mission that determines what actions are required and what 20 constitutes completion of those actions.

21 COMMISSIONER KENNEDY:

That is a d~fferent question I

22 that we come to.

But first we ought to get these words corrected.

23 CHAIRMAN HENDRIE:

I think we ought to have a little 24 tag-in with regard to the B-1 table, just to avoid the implica-

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25 tion that where the B-1 table, says "commit to a program," the

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25 29 order isn't read as saying "complete the test program."

Okay.

Immediate effectiveness of long-term actions.

Now, let's see, Len, would you or Steve revi~w the bidding for us?

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30 MR. BICKWIT:

You've got two optiops before you as a result of the last meeting, a third that our office is put-ing forward.

The first would not require the li~ensee to begin work immediately on implementing the long-term actions and I

would permit the board to set a date for their completion based on the time after restart allowed to other B&W facilities The second would be the most immediately effective:

an order requiring the licensee to implement'.all long-term actions that are now required of the other B&W facilities, and would provide that when other long-term ~ctions are required of the other facilities, they would 1 be required at TMI-1.

Now, our option is in the middle of those two, but clearly not squarely in the middle.

It is much closer to the second option, but it would differ slightly.

We would not require the licensee to begin work on the long-term actions, I

but we would make restart conditional on a board finding that the licensee had implemented those actions as promptly as practicable, and would permit the board to recommend that the restart be delayed an appropriate amount of time if those actions had not been so implemented.

This would avoid placing the Commission in the posture of actually ordering work done while at the same time it was deliberating on whether to pe~rnit the facility to

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25 31 operate again.

It would allocate risks between the licensee and the public in a manner similar to the way in which it would be allocated for the short-term actions, except that the stakes would be higher, in that we assume that the long-term actions would take a longer time to implement.

So that if the licensee chose to wait in the hopes of persuading the board and the Commission that it did not have to perform these long-term actions, it could significantly put off the restart of its plant if it were ultimately determine~ that those actions had to be required as a condition to:restart, or that implementation had to be far along as a condition to restart.

So that in each case the licensee is free not to perform, and in each case if he fails to persuade the board I

and the Commission, in the last analysis, that he ought not ever be required to perform, then the penalty for him would be a delay in restart.

CHAIRMAN HENDRIE:

Well, your memo notes that, at first blush, at least, Commissioners Kennedy,pand Bradford lean toward the first, Corn.missioner Ahearne toward the second, and as I remember my own position, I leaned both'ways,although not at the same time.. There is no thing equi "1ocal about my position.

I Are there druthers?

Vic, you missed this the first time around.

This was one of the high points: of the day.

COMMISSIONER GILINSKY:

I think the general counsel's

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25 32 proposal seems all right.

CHAIRMAN HENDRIE:

Let's see, 2-1-1.

I have to sample up, because we have a third option.

We have to choose one, two, or three.

Peter, you initially chose one.

why don't you think about it while I query the other end of the ~able.

What is the feeling down here?

COMMISSIONER KENNEDY:

I have already expressed mine.

CHAIRMAN HENDRIE:

You are still oh the first option.

John?

COMMISSIONER AHEARNE:

I still like two..

COMMISSIONER GILINSKY:

If I understand what you're I

saying, the Commission is not ordering these; long-term actions to be undertaken, but at the end of this proceeding the board will consider the progress on these long-terk actions in deciding.

MR. BICKWIT:

Yes, whether the plant can restart.

COMMISSIONER GI LINSKY:

Assuming o;ther actions have been taken and the board is otherwise satisf1ed.

MR. BICKWIT:

Yes.

COMMISSIONER GILINSKY:

Which it would do in any case, isn't that right?

I MR. BICKWIT:

If the order were not immediately effective, my_ guess is in many cases the licensee would not do that.

He would contest the order, and only*when he lost the

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25 33 contest would he get going on these required actions.

COMMISSIONER GILINSKY:

Wouldn't t e case taken into account what progress is beilg I

dealing with the long-term issues?*

board in any made toward MR.* BICKWIT:

Not if none has been required.

If all you have out',.wi th respect to long-term issue is, in effect, a proposed action, which is an order which is fl ot made immediatel effective, and an invitation to the licensee to contest that proposed action, I would think it would be highly unfair for the board to condition restart on performancl of that action.

I MR. OSTRACH:

I would expect the b0ard would look to I

the amount of time it would have to decide hrw long a time can be allowed for long-term actions to remain outstanding.

If it had seen that the applicant had not be!un them, then it could say the Commission allowed.other licenlees, to the extent that long-term actions were similar for theml a certain period of time, say from whenever the orders were ilsued until 1

1981 h

h I

. 1.

January st,

, we oug t to give a somew at simi ar amount of time to this licensee.

l That would be because the board wo,ld not count the orders were contested.

COMMISSIONER BRADFORD:

That is wh t they do between I

options one and three.

Three says to the 1.board, you can't do that?

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1 25 MR. OSTRACH:

Three says the board* can do that.

COMMISSIONER BRADFORD:

I thought three said you can't start up again -- can start up again?

MR. BICKWIT:

Three says you can't'. start up again unless you have completed these actions.

COMMISSIONER GILINSKY:

it says the board will take into account.

COMMISSIONER BRADFORD:

So,:tWhat is, the practical difference between one and three?

MR. BICKWIT:

You mean between two and three?

Three is very much closer to two than it is to one, in that under two you are actually formally required to get going.

COMMISSIONER BRADFORD:

Right.

MR. BICKWIT:

Under three you are not required to get going, but you risk -- your risk is substantial if you I

don't and you do not persuade the board in the end and the Commission in the end that you should not have been required to do it.

COMMISSIONER BRADFORD:

But under one you are also not required to get godi.ng.

And the penalty, it seems to me, under one and three is the same, that is, at :the point at which the board tells you you could restart.

MR. BICKWIT:

I have been assuming under me that there really is no penalty.

COMMISSIONER BRADFORD:

Unless the board thinks some

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7 35 of the long-term actions should be precondit~ons to restart.

MR. BICKWIT:

There is always that.

I COMMISSIONER GILINSKY:

I guess I am troubled about requiring that long-term actions be completed unless these are Commission requirements.

MR. BICKWIT:

But you are not making the short-term actions Commission requirements, either.

Yof are treating 8

this -- this proposal is to treat the long-term.actions very 9

similar to the way you treat short-term acti6ns, which is to 10 !

say you don't have to do them, but if you don't do them either l l their completion or their implementation on route to comp.le-12 tion may be made a condition.

13 14 15 16 17 18 19 COMMISSIONER GILINSKY:

The board can take them into I

account, depending on how it regards their importance.

COMMISSIONER BRADFORD:

I must say) I think one and I

three are very much alike, at least as I intended one.

COMMISSIONER AHEARNE:

Then you should have no trouble with three.

COMMISSIONER BRADFORD:

Exactly.

I'm not having 20 trouble with three.

I 21 CHAIRMAN HENDRIE:

In that case, let's see if I can 22

. get John to split a vote here.

Where would ~ou like to take 23 up a stand on this one?

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COMMISSIONER BRADFORD:

I. guess I s,till prefer one 25 as I understood it.

But three is acceptable..

I may be missing

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25 36 something, because Dick once agreed with me on one and now he I

doesn't agree with me.

0OMMISSIONER KENNEDY:

I don't think they are the same at all.

COMMISSIONER AHEARNE:

It may be that both of you had agreed on one, seeing one differently.

COMMISSIONER KENNEDY:

I don't think so.

It is that I

I don't believe one and three are all the same.

They are quite different.

MR. BICKWIT:

I agree with that.

COMMISSIONER BRADFORD:

Counsel agrees with you.

Well, what do you see the licenseeidoing under three?

MR. BICKWIT:

I see him, in all probability, doing the action, starting right away to complete the actions.

And under one I see him not doing so.

In two I ~ee him doing so because he's required as a matter of law to do it.

COMMISSIONER BRADFORD:

But even though under one, first of all, there's a certainty he's going ito have to have them done, or a strong likelihood he's going 'to have to have them done some day.

COMMISSIONER AHEARNE:

At least my lreading of one is that his clock on the long-term actions starts at that point that the board says, all right, do these short-term.

COMMISSIONER BRADFORD:

Well, his clock is what the board says it is.

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2.5 37 COMMISSIONER AHEARNE:

But at leasF my interpretation would be that is the way you would read number one.

MR. BICKWIT:

We may have drafted ~his harder than you intended it.

We have it drafted as there being virtually I

no penalty for doing nothing.

COMMISSIONER AHEARNE:

In a sense, it is a deferral.

COMMISSIONER BRADFORD:

Okay, but you do have more time.

A licensee who has a presently shut down plant that 1

he hopes to start, faced with the possibility when he restarts I

it, he could**.:get;* a timetable which could conceivably require 1

that he shut it down again in order to take some particular i

steps in it, that if he seriously thinks he's going to restart it, it would seem to me that he would be very likely to take at least those actions that he didn't violently object to taking, while the plant was shut down.

MR. BICKWIT:

Unless he thought he : could persuade the board that they wouldn't be required.

COMMISSIONER KENNEDY:

The prospect which it seems to me is highly remote, given the fact that every other plant of that type has been ordered to do the same thing.

Now, what could motivate this guy to think that he would be unlike all the others in respect to the need to do these things?

Now, he might wish, just because he's got an excess of legal fees and too little other monies, to go spend his money on his lawyers to protest these particular matters

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9 38 and contest them with the Commission.

COMMISSIONER GILINSKY:

Why do you think one and three are different, then?

Aren't you making the case that they are the same?

COMMISSIONER KENNEDY:

No, I don't: think so.

MR. OSTRACH:

Commissioner, I think the difference is in the timetable.

If the licensing board.does order the long-term actions, makes them required, it would allow a certain amount of time.

Now, it can either -- there are two 10 1

main time periods to choose.

One of those time periods is the 11 12 13 14 15 16 17 18 19 20 21 amount of. time which other B&W plants would be given to complete the long-term actions.

COMMISSIONER BRADFORD:

Three is okay for me.

CHAIRMAN HENDRIE:

Let me ask about three.

COMMISSIONER BRADFORD:

I'm sorry,,I thought you said 3:00 o'clock for the research briefing.

In that case, I would like to have:Steve explain to me once more the difference between one and three.

I CHAIRMAN HENDRIE:

Peter has to decide whether it is really a one or really a three.

COMMISSIONER BRADFORD:

If you will just let me 22 I listen to Steve for a minute, I might be able to do that.

23 Start again.

ederal Reporters, ~n~.

MR. OSTRACH:

The board is going to order a decision requiring that long-term actions -- to be long-term actions 25

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25 are to be complete.

There are two dates, two logical dates that it could choose.

One is the date at which the Commission required the long-term actions to be completed by other B&W plants.

I'm assuming that they order essentially the 1 same long-term actions as were imposed in the other one.

That would be a date, i

perhaps, let us say, January 1st, 1981, 17 months from now, 15 months from now.

That would, assuming the hearing doesn't finish until March or something like that, that would mean the licensee would only have nine months in which to complete those actions.

Other plants were given 17 months to handle them.

The board might also choose a different date. It might choose a date 17 months after its decision, believing that, just as the Commission gave these peop+e 17 months I

after imposition of the requirement, so it should give 17 months after imposition of requirements.

I believe that under the first option that would be the way the board would most likely go, since it would not assume that the licensee was obligated or should be held to have been obligated during the period of time it was contesting the provisions. So the difference is in three the board would be told basically, to the extent applicable i:n the circum-stances, use the date the Commission selected for those long-term actions to be completed as the date that you're

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40 going to hold the licensee to, which means that right now the I

licensee should be moving as promptly as practicable.

In the first option, the board would choose the amount of time the Commission gave, which would mean the licensee could begin then.

That is the main; distinction I

between one and three.

COMMISSIONER BRADFORD:

It really would be a matter -

I think that is probably right.

Depending upon, A, what the 9

board did with its discretion, and, B, what ~he license chose I

10 !

to do in anticipation of the situation, that the two really 11 12 13 14 15 16 17 18 19 20 21 22 23 could work out quite similarly.

If you've stated the extremes, the extreme for one is further out and the extreme for three is probably further in.

Well, three is acceptable to me.

CHAIRMAN HENDRIE:

Is one still ac8eptable?

COMMISSIONER BRADFORD:

Review the bidding for me.

Do we have two votes for one and two for three?

CHAIRMAN HENDRIE:

Yes.

John, will you withdraw from two?

COMMISSIONER AHEARNE:

Sure.

CHAIFMAN HENDRIE:

John had origin~lly said either two or three are all right.

But he slid down to three because he sees a force gathering there.

24 You had indicated that either one or three were okay,

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1 25 and that leaves me the dilemma, if I go up and vote with you

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25 41 on one, I can't tell whether I've got a split Commission 3-3.

(Laughter.)

CI::IAIRMAN HENDRIE:

Which is going to be hard to explain in some quarters; or whether it is 3-2.

And if you've got a preference between the two, why, that helps settle it.

COMMISSIONER BRADFORD:

I have a preference for deciding the question.

My intellectual pref~rence is one.

But I would much rather get this settled.

So I would vote for three.

COMMISSIONER KENNEDY:

Let's not let principle get in the way.

COMMISSIONER BRADFORD:

If it were'a principle, I would stay with one.

CHAIRMAN HENDRIE:

If you will stay with one, I will vote for one and we will outvote these folk.*

COMMISSIONER BRADFORD:

I will stay with one.

CHAIRMAN HENDRIE:

I'm just trying to find somewhere, if I leap in, it will be a clearcut majority.

And I can' tell.

COMMISSIONER KENNEDY:

You just did.

COMMISSIONER AHEARNE:

3-2 seems to be a clearcut majority.

COMMISSIONER KENNEDY:

There's only five.

Whichever way you voted, you're the swing vote.

CHAIRMAN HENDRIE:

I will vote for one because it

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25 42 seems clearer-cut to me.

I still have some problems with the language in three, which seems to run back and forth.

"Be performed as promptly as practicable as a condition to restart.

I don't know, I will vote for one and declare that Peter will still stand there, and we have a quavering slight edge for option one.

And I will furthermore declare we have gone as far as we can reasonably go today.

And the Commissioners are asked to please return in 15 minutes, i.e.,

at 20 minutes to 3:00, to hear the Research budget.

(Whereupon, at 2:25 p.m., the meeting was adjourned.)