ML22230A121
| ML22230A121 | |
| Person / Time | |
|---|---|
| Issue date: | 09/14/1979 |
| From: | NRC/OCM |
| To: | |
| References | |
| Tran-M790914 | |
| Download: ML22230A121 (45) | |
Text
RETURN TO SECRETARIAT RECORDS NUCLEAR RcGUL.ATORY COMMlSS!ON IN THE MATTER OF:
PUBLIC MEETING CONTINUATION OF BRIEFING BY H. DENTON ON CONCLUSIONS OF TMI LESSONS LEARNED RECOMMENDATIONS (Continued from 9/6/79)
Place -
Washington, D. C.
Date -
Friday, 14 September 1979 ACE - FEDERAL REPORTERS, INC.
Offici,a1 Reporters 444 North Capitol Street Washington, D.C.20001 NATIONWIDE COVERAGE* DAILY Pages 1 -
42 Telephone:
(202) 347-3700
r, I
CR 7038 AR
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25 UNITED STAT.ES OF AMERICA NUCLEAR REGULATORY COMMISSION PUBLIC :MEETING CONTINUATION OF BRIEFING BY H. DENTON la ON CONCLUSIONS OF TMI LESSONS LEARNED RECOMI'JI.ENDATIONS
[Continued from 9/6/79]
BEFORE:
Room 1130 1717 H Street Northwest Washington, D.C.
Friday, September 14, 1979 The Commission met, pursuant to notice, at 2~12 p.m.l DR. JOSEPH M. HENDRIE, Chairman.
PETER A. BRADFORD, Commissioner.
VICTOR GILINSKY, Commissioner.
JOHN AHEARNE, Commissioner.
ALSO PRESENT:
Mr. Bickwit Mr. Malsch Mr. Snyder Mr. Denton Mr. Gossick Mr. Rosenthal Mr. Lazo Mr. Englehardt
CR7038 1
DISCLAIHER This is an unofficial transcript of a meeting of the United States Nuclear Regulatory Cormnission held on Friday, 14 September 1979 in tl1e Corrnnissions'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 ~FR 9.103, it is not part of the formal or informal record of decision of the matters discussed.
Expressions of opinion in this trahscript do not necessarily reflect final determinations or beliefs.
No pleading or otheY paper may be filed with the Commission in any proceedin~ as the result of or addressed to any statement or argument contained herein, 2xcept as the Commission may authorize.
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P R O C E E D I N G S
[Chairman Hendrie not present.]
MR. GILINSKY:
The Chairman will be delayed for a few minutes and asked us to get going, and he will join us shortly.
The subject before us are the choices for the Commission in getting more deeply involved in the licensing process and in taking a -- having the Commissioners themselves decide on the issuance of reactor licenses.
General counsel will lead the discussion.
Mr.
Bickwit.
MR BICKWIT:
You have a paper from our office dated August 3rd, in which we responded to a ouestion from Commissioner Ahearne on if the Commission wants to involve itself more deeply in license participation, what procedures should it use.
And we recommend a given procedure which I 17 can outline briefly for you.
'.S II It is really the procedure that was discussed at i= !
1 last week's meeting, at least at this end of the table, and i '
20 it constitutes our best judgment as to how to procee*d.
21 Basically we would recommend that you bifurcate 22 proceedings, ongoing proceedings, into TMI and non-TMI 23 A
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25 issues, issue a p6licy statement to say that.
Ask the Licensing Boards to make a record on both parts of the bifurcated proceeding.
Issue an initial decision on the
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non-TMI issues.
Issue a recommended decision on the TMI issues, and.refer up to the Commission those issues, those latter issues.
By dividing the issues and making clear that the Boards are not to issue a full init1al decision, you will not trigger the immediate effectiveness of this rule, and therefore licenses will not issue until the Commission has considered the TMI issues.
The understanding would be that when the Commission has reviewed the TMI portion of the proceeding and decided whether or not to follow the Board's recommendation, decides that the license can issue on the basis of this review of the Board's rec6rd.
The license may issue at that point.
The Appeal Board would be involved in the following With respect to the TMI issues, there would be no review of the initial decision.
The Commission would be making the initial decision.
We believed it would be irregular for the Appeal Board to review the Commission's decision on those issues.
With respect to the non-TMI issues, the Appeal Board I
would review the decisions of the Licensing Boards in the way that it now does and in the way that now is the case.
No license would be held up during the Appeal Board's review of the non-TMI issues.
So if you had a situation where after
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this bifurcation the Commission decided that a license should issue, the appeals process was running on the non-TMI portions of the decision, the license would issue after the Commission acted and during the Appeal Board review which could lend itself to ultimate Commission review of the non-TMI issues.
COMMISSIONER AHEARNE:
So immediate effectiveness would be suspended only until such time the Commission has acted on the TMI issues?
MR. BICKWIT:
That's right.
And technically there would be no suspension because by its own terms, it is not triggered until you have a full initial decision, which you would not have-until the Commission actually acted on the recommendations.
COMMISSIONER (:;ILINSKY:
May I just interrupt you for a minute?
Is there a clear division between so-called TM.I issues?
COM.M.ISSIONER AHEARNE:
You'll have to draw that to the best degree that you can.
It will be -- there will obviously be some difficulty in the Board's fitting in the categories that you described which particular issues you had in mind for your issue, and which you did not.
v:e anticipated that review of the Board's decision on that particular question would be taken
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immediately by the Commission, and the consequences of a mis-characterization by the Licensing Board would be anomalous under this procedure *or under this procedure, a record would be required to be made on both sets of issues.
If the Board errs in its view, you simply tell them that they err and change -- and tell them to.change the recommended decision to an initial decision, or vice versa.
COMMISSIONER GILINSKY:
Do vou have any sense for how much would be in each basket?
MR. BICKWIT:
It's entirely within your discretion.
We have envisioned that you might, as a starting point, look at the Lessons Learned report and the Emergency Task Force report, Emergency Preparedness Task Force report, and say those issues are TMI issues and we want -- we want to have a look before any license issues, based on decisions on those issues.
But what you are really talking about here, the breakdown needn't be between TMI issues and non-TMI issues, just any issue that you want to have a look at before the license issues should be designated under the terminology we've been using as TMI issues.
And maybe issues related to TMI that you don't feel you need to look at.
COMMISSIONER AHEARNE:
Len, what would be the advantage of that process over one in which you still kept
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the Appeal Board in, but you had them do an initial review of TMI issues and forward that up?
- MR. BICKWIT:
That was the major alternative that we addressed and the advantage of this is basically one of moving the process along quicker.
If you ask for Appeal Board review of the TMI issues prior to the issuance of the license, then however long it takes the Appeal Board to consider those issues in its review process, the licensing process is delayed by that degree of time.
Offsetting that as a competing consideration, you lose the advantage of Appeal Board review.
Not only do you lose it before the license issues, but under this scheme, you lose in part because based on the judgment that you don't want your mm decisions reviewed by the Appeal Board.
Losing it before the issuance of the license is not terribly significant, since* the reason for this procedure in the first place is that the Commission is not entirely clear on what its policies ought to be on issuance of licenses.
The Appeal Board theoretically is designed to apply Commission policy,- so that to ask the Appeal Board to nake those policy judgments would be anomalous.
Losing it after you've made your :1:)0licy, I think, is the major down side to this proposal.
We have discussed this matter with the Executive
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Leg~l Director's office and Tom Englehardt today offered us a suggestion which we'd like to adopt, which is instead of dividing it into initial decision and recommended decision, that you divide it into --
[Chairman.Hendrie entered the conference room at 3:22 p.m.]
-- initial decision and partial decision on non-TMI issues and partial decision on TMI issues.
The partial decision on TMI issues taking the place in the procedure that I have just outlined of the recommended decision on the TMI issue.
The advantage of doing that* is that then exceptions 13 when exceptions are filed to the partial initial decision, 14 15 16 i7
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I 11 11 you retain the option of considering only the exceptions; whereas if you go with our original suggestion of a recommended decision on the TMI issues, it is not clear that you can simply consider the exceptions and base your judgment on your consideration of those exceptions.
Most probably you would have to consider the entire record and the recommended decision having no force in and of itself, so that with that modification which if you adopt it would require a rules change because if you adopt it then, you are no longer in the position of delaying a full initial decision until the Commission considers-the matter, and the immediate effectiveness rule would therefore be
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triggered by the two partial initial decisions which added up to a full initial decision.
So if you go this route, we would recommend a change in the immediate effectiveness rule so that you would be able.to carry out what is in essence this proposal.
COMMISSIONER AHE.A_llliE:
In the review process you hav described, which would have the -- I guess the Commission staff providing the review of the ~icensing Board's hearing as opposed to the Appeal Board going through it the first time for the TMI-type issues, do you see that there would be a doubling of the effort required if the Appeal Board was in that
-- what I'm asking is does the Appeal Board, going through those -- just focus on the TMI side -- going-through those issues once and scrutinizing the record, go through a lot of the process that in the absence of their doing it, your staff would have to do, so that would it be correct to say that it's not a doubling of the time that the Appeal Board is in it, but maybe some lesser factor increase?
MR. BICKWIT:
I don't really see that.
In each case you have a decision coming to our Staff.
In one case it is a -- under this proposal it's a recommended decision or partial or initial decision of the Licensing Board, and we look at that decision and attempt to advise you on that.
In the other case, you've got an Appeal Board decision coming up and I see it as the time given to the
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9 Appeal Board to review it as total time lost.
I don't like to use the description "lost" --
[Laughter.].
-- because it is obvio.usly very helpful to have the Appeal Board review it.
But your tradeoff, really, is that is your tradeoff:
Do you want the benefit of the Appeal Board's review enough to justify the delay in licensing that you have to pay to get it.
COMMISSIONER AHEARNE:
Alan, what kind of delay or I guess "delay" is the wrong word -- what type -- what amount of additional time do you think would be required?
And I recognize that it can be a large spectrum, because it depends upon the case and the range of issues that are TMI.
But are we -- should we be thinking in terms of half a year, several months?
MR. ROSENTHAL:
Well, under the present procedure, there is a time allotted.for the filing of exceptions.
There is a period allotted for the filing of briefs.
The Appeal Boards normally, although not invariably, choose to hear oral argument on some or all of the issues that are presented by the appeal.
And then there is a decisional process.
By the time oral argument is held, it normally runs -- the interval between the filing of the Licensing Board's initial decision and the oral argument is around four to five months.
v7hat time is consumed in the
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I 10 decisional process after that depends, and there is nothing that says that the Appeal Board cannot factor out for early consideration and disposition those issues labeled."TMI issues.'
So that they can be then considered by the Commissioner while the Appeal Board is considering the balance of the case.
I think I can assure you that if the Appeal Board ended up in so-called critical path which has not been normally in the past, except in those few cases in which stays have been granted, everything would be done to move the cases along at a pace which is expedited, but still recognizes the importance of, among other things, allowing a reasonable time for the briefing of the issues.
If I may just say one other thing in this line, I can't agree with the General Counsel that the time that the Appeal Boards would spend in these cases would be totally duplicated, if then you had Commission review, I would doubt it I may be entirely wrong that what the Commission would have in mind if it went through the two-tier review would be a re-examination, cover to cover, of the entire record.
I In other words, going over once again following the Licensing Board and Appeal Board reviews of those records, the entire record to make its own independent determination on every factual matter that's raised.
I tend to think the Commission's intended involve-rnent is a little bit different.
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25 11 Now if that is the thought of the Commission, that they wish to substi'tute themselves, the Commissioners, for what the Appeal Board does now, I would submit with due respect that you're not presently staffed to do that.
Facing this matter perfectly realistically, the Appeal Panel at full strength has five full-time panel members, plus one half-time panel member, plus a full-time legal counsel a full-time technical adviser, and two full-time law clerks or legal interns.
Our single mission in life in the employ of this Commission is carrying out appellate reviews.
The Commissioner themselves and obviously the members of the Office of General Counsel, as well have many other demands made upon their time.
And so that I think that it's easy enough to say, as Mr. Bickwit does,. that the Commission just steps in here and we're out of the act.
I think before you got that suggestion, you might want to consider whether you have the resources at present now.
I suppose it's possible to go out and not obviously employ additional Commissioners
[Laughter.]
-- but employ members of the Office of General counsel.
COMMISSIONER AHEARNE:
Well, there are a lot of
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25 12 suggestions that.are going to be raised in the next few months.
MR. ROSENTHAL:
But I think that is something that when you are deciding what you want to do, I think that's something you have to bear in mind, and I think also you have to consider, if I fully understand the desire of the Commission, to be involved itself in at least the TMI issues, if they can be compartmentalized, and that is.something I have some doubt :about.
I can see that their desire to be involved in the consideration of those issues before licenses issue, but I think there has to be some consideration as to*
just what that involvement should be.
Whether it is really the kind of involvement that the Appeal Boards have and again whether at least as matters now stand, you are equipped, with the support that you have, to carry out that mission.
COMMISSIONER AHEARNE:
Alan, can I ask another question, and also, Bob, I'd be interested in your comment:
One of the concerns, at least that I had, was that reference by.Len in his comments that in some of these areas, the Commission has not really reached clear policy decisions.
It has not laid out very explicitly what its position is, its emergency planning, as an example, siting policy as another example.
And given that fluid situation with respect to some of those areas, to what extent do you believe that either the Licensing Board or the Appeal Board could go through its
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25 13 normal procedure and address those which are very explicitly TMI-related issues?
MR. LAZO:
Well, of course; from-the Licensing Board's position, they are in a position of having to make certain that the regulations as they *are presently written have been complied with, and as the regulations are -- I may not be on.
COMMISSIONER AHEARNE:
It has to be very close.
MR. LAZO:
As the regulations are amended on a day-:--to-day basis, from time to time, then the Boards, of course, apply the new regulations.
We are always very alert to Commission policy and watchful for it, so they are in a position to change.
But they would have to they would have to use the regulations that are presently in place.
MR. ROSENTHAL:
I would agree with that.
The Appeal Boards, in their review of Licensing Board decisions, obviously are called upon to apply existing Commission policy as articulated in ~egulations or other source~.
I think there may be some modest problem presented, no matter who is conducting the appellate review.
If a case is tried before the Licensing Board on the basis of the dictates of existing Commission policy as derived from whatever source, and then when it gets up on the appellate review, either first or second stage Commission appellate review,
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25 14 either as a substitute for the Appeal Board or as the next step in the chain, the rules of the game are drastically*
changed.
Now it's nothing, I suppose, that is unlawful about that.
I think what it's going to mean in a lot of cases is that the proceeding will have to be remanded to the Licensing Board unless the Commission itself wishes to take evidence for the introduction of additional evidence on the matters which are -- nave come to the surface for the first time as a result of new Commission policy.
And again I think you have recognized that, but that, it seems to me, you have really --- it's true that if the Commission reviews the Licensing Board decision in the first instance, it can plug those new policy decisions in at an earlier stage than if the Commission steps in only after the case has been through the Appeal Board.
On the other hand, I suppose if the Commission does reach some new policy conclusions along the way, those conclusions can be articulated and they can be plugged in by a Licensing Board or an Appeal Board.
It wouldn't have to wait until the case reached the Commission level.
MR. BNGLEHARD~:
If I may interject a point, there is another possibility in terms of an alternate that could be considered by the Commission, in addition to the one that's been presented in the General Counsel's paper.
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15 That would be to simply suspend the immediate effectiveness rule and allow the hearing record to take its normal course through the hearing and to the appellate process, but preserving the Commissio_n,'s full discretionary options prior to the decision becoming effective, to inject the TMI issues as necessary, and policy and remand as appropriate to the Licensing Board or the Appeal Board, again as appropriate, for further consideration, reopen~ng*i the record on such issues as the Commission feels appropriate for the Boards to hear before the license becomes effective.
That's another possibility.
COMMISSIONER GILINSKY:
Where would you have the Commission step in?
MR. ENGLEHARDT:
The Commission could step in at the end of the review process, after the Appeal Board has seen the whole rec*ord, the normal record, and the matter comes before the Commission for its normal review period.
The Commission has full control, they can say, "We will now review this," and hold*it there as long as they elect to do so, in order to ensure that they have incorporated all of the TMI-related issues in that record, or considered them all, and as appropriate dealt with then.
This would have the effect of somewhat simplifying this process.
In other words, you can suspend for a specific
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25 16 purpose the immediate effectiveness rule, which can be done procedurally quite rapidly, because it is a procedural change, it doesn't necessitate public comment.
You can just make a change of that sort and proceed to hold the record open until you are satisfied that e,ierything' s been incorporated before the decision is made effective and the license -- or what-have-you issued.
COMMISSIONER GILINSKY:
This would mean in effect a plant can't start construction or operation until the proceeding is gone through all the MR. ENGLEHARDT:
Unless the Commission decides to reach down and direct that the record be certified to it according to the present rules.
You always have that option.
CO~.MISSIONER GILINSKY:
Is it possible or practical to have the Commission step in after a Licensing Board decision and examine the decision in the case, deciding which aspects it would like to review, and have others proceed onward in a way similar to the way General Counsel was suggesting?
That possibly of the ones that it decides to take up, it might also there decide that it would like special questions to be examined by the Appeal Board?
The Commission would simply decide at that point whether a construction permit should be -- or operation should be delayed or not, depending on how what importance it attached to the issues?
CO:tvT.MISSIONER AHEARNE:
v-7ould you propose this be
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25 17 done as a result of the review of the record or monitoring of the progress?
COMMISSIONER GILINSKY:
Well, a review of the decision certainly in a check against certain points that the Commissioners are interested in.
But my question is really this:
Could the Commission do that and yet serve as the final Appeal Board, in effect?
MR. ENGLEHARDT:
To a certain extent, you run into the difficulty Mr. Rosenthal has described, in that you have established a fairly substantial workload for yourself and a separated staff that you would have to provide for yourself to deal with some of the technical issues, if that's the depth that you wanted to get into the matter.
But the present rules of the Commission provide the Commission with a broad discretion and scope in how they want to deal with these things, and I think the General Counsel's paper has made an excellent point in trying to define that degree of discretionary latitude that the Commission does have, and in the proposal that I surfaced as an alternative thought, under the suspension of the immediate effectiveness rule, you would have the same kind of freedom of action to deal with the issues as you saw them, provided, as you always must be concerned with, that due process was availabJ:.e to all the participants in the proceeding, and that the APA was not
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25 18 violated, and that you ultimately reached your decision, what-ever that may be, based on a record.
That's the key to this whole matter, is that.it's*
based on a record, and that all the participants be afforded due process*to contribute to the making of that hearing record.
COMMISSIONER GILINSKY!
I wouldn't expect such an initial Commission look to be comparable to what the Appeal Board does now, except possibly in selected areas.
MR. LAZO:
May I comment on that?
It seems to me that with a very minor change in the immediate effectiveness rule, simply providing that after a decision had been issued, that no decision would no license would issue until the Commission authorized it, that it's perfectly possible for NRR, for example, to come before the Commission and say, "No, the Licensing Board has issued an initial decision in a construction permit proceeding which is favorable to the Applicant.
The cri,gical issues that were resolved in that decision are 1, 2, 3, and 4.
Now may we have permission to issue the license?"
And at that time the Commission could decide there are one or two of those issues, or perhaps none, perhaps all, that they would like to have a look at, and so they*
would withhold permission to issue the license.
The same thing really could happen very easily in
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25 19 the 9perating license proceedings, because there ag.ain the Commission staff in NRR coul*d come. before the Commission and say, "The license has -- the initial decision has been issued; we 1,ve completed o.ur review on all other matters that were not in controversy.
These are the key issues."
COMMISSIONER AHEARNE:. We couldn't question NRR, could we, so it.'s really --
MR. LAZO:
They could identify the issues.
MR. ROSENTHAL:
You make allowance for the input of the parties, you see.
This is not simply the Staff, the Licensing Board, the Appeal* Board and the Commission.
Among other things, the parties have to know when the Licensing Board decision is rendered, where they take their dissatisfaction with regard to particular issues of the whole case, and also there is the whole matter of the p.a:rti-es being able to seek any kind of interim relief, such as stays.
In other words., the parties might wish to endeavor to persuade the Commission that this is an issue that's going directly to the Commission, that it should direct that no license be issued until after that issue had gone through whatever appellate process had been established.
It seems to me that it's a, very cumbersome procedure\\,
in going up two potential tracks.
CHAIRMAN HENDRIE:
Your proposal was simply that the immediate effectiveness rule would allow for a Commission i
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-- specific Commission check at that point, to see whether we're willing to allow the license to issue, while.the appellate process and perhaps subsequent Commission review went forward?
MR. LAZO:
Yes, sir.
CHAIRMAN HENDRIE:
Or whether we felt that it should hold, and might very well recommend to the Appeals Board that certain items merited early, urgent and early consideration in their look at the case?
MR. ROSENTHAL:
My point simply was, Mr. Chairman, that I thought that the parties would have to be given an opportunity to express their views to the Commission and what course the Commission wished to follow.
In other words, it would not simply be a matter of NRR --
CHAIRMAN HENDRIE:
You might then have a Staff paper that outlines the ess.entials and ask the parties to comment.
MR. ROSENTHAL:
or some kind of procedure whereby the parties would have the opportunity to express themselves.
CHAIRTvlAN HENDRIE:
I see a waving hand in the back area.
Please, why don't you use this mike right at the front of you there?
MR. MILHOLLIN:
As you all know, I've given some thought in recent months to the subject of the immediate effectiveness rule.
Whenever those three words are used
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25 21 together, my blood starts flowing a little faster, and so I thought I could give you the benefit of my views on the subject.
I guess I would say that from the thought I've given to the problem, the solution simply abolishing or suspending the rule indefinitely has disadvantages, and I think one disadvantage would be that in the hypothetical case where the Applicant is ready to do work or go forward and operate a plant, but there is no TMI-type issue in his case, it seems to me to be an unnecessary waste of resources to postpone the effectiveness of that case.
So I would suggest a system by which you separate the cases which have TMI-type issues in them from the cases which don't, and let the ones which don't have TMI-type issues in them go through the process that they *normally would, which means that in those cases the initial decision would become immediately effective when the Licensing Board renders it.
COMMISSIONER GILINSKY:
You say don't have TMI-type issues in them --
CHAIRMAN HENDRIE:
That may be a limited group-.
MR. MILHOLLIN:
I'm assuming that there are such cases.
If there aren't any such cases, and if you're going to have to look at each case from. point one, then perhaps you do have a different problem. If you decide you're going
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25 22 to do that, and you decide that TMI is. affecting every case which is now pending, and that you want to look at every case, then perhaps you could. do it to the stay standards,.
then have a bifurcated appellate procedure.
COMMISSIONER AHEARNE:
Perhaps you could do it
. through what?
.MR. MILHOLLIN:
Through some use of the stay device.
COMMISSIONER GmLJNSKY:
There you'd be relying on outsiders to request a stay; is that what you had in mind?
MR. MILHOLLIN:
No, I think you could arrange to have the I guess what I mean is you should have some decision on whether to postpone effectiveness, and I think the Licensing Board decision which has been recommended to you is a good device; that is, have the Licensing Board decide whether its decision should be effective, given the fact that there are TMI issues in it.
COMMISSIONER GILINSKY:
Have the Board decide whether its decision should be effective?
MR. MILHOLLIN:
Yes.
Have the-Lic~n~ing Board decide,.. sgi yen _:the TMI issues which the Licensing Board now, under the General Counsel's recommendation, is going to decide the case, how the Licensing Board decides whether the existence of these issues is such that the de.cision should not be immediately effective..
So that in each case you'd have the Licensing Board
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25 23 tell you whether the possible implications of TMI should cause that decision not to be immediately effective.
COMMISSIONER GILINSKY:
And if there is no Licensing Board?
MR. MILHOLLIN~
Well, presumably --
MR. BICKWIT:
If there is no Licensing Board, you don't have to deal with any of this.
You can have the Staff come in and do this.
MR. MILHOLLIN:
I assume you are worried about the cases which are now in the process of being adjudicated, so you could ask the Licensing Board, which knows the record, whether there are such issues.
Then if the Licensing Board says yes, there are TMI-type issues and we don't think because of these issues the decision should be immediately effective, then that decision could be reviewed through the system and each party would have a chance to convince the decider up the line whether the Licensing Board was right.
It seems to me that's superior to having Staff papers in which this issue is going to be decided without full adjudicatory participation.
I would think that someone who doesn't want the Commission to decide there are TMI-related issues or that issue should be disposed of in a certain way, would be unhappy in not having a full chance to present its case on that subject~
Well, I've given you the benefit of what I think
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COMMISS.IONER BRADFORD:
It's possibl.e to think of a case where TMI would not be litigated and*later to have a case where the TMI i.ssues may have been. resolved in 'a previous case.
I must say I don't see much possibility of a case right away that doesn't have any TMI issues in it.
MR. ENGLEHARDT:
The only cases you might run across would be cases that are basically materials cases.
Materials, licensing cases, enforcement cases, things of that nature, wher:e y,ou could run into a non-TMI-related matter.
COMMISSIONER BRADFORD:
In effect, a*non-reactor MR. ENGLEHARDT:
Yes.
The rule does apply COMMISSIONER AHEARNE:
Tom, in your -- I'm not sure -I fully understood your suggesti*on in that it almost sounded very similar to a modification of the one that. I'd asked Len about; namely the case I had asked Len about was the Licensing Board hears it out and recommends and makes its decision, but nothing goes into effect.
The Appeals Board reviews it, but separates out the TMI and sends that forward, and the Commission acts on TMI, and if it were positive, then.the license would be effective.
Now, I think the modification that you have proposed is instead of the Appeals Board separating anything i I I
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25 25 out, that it go through its normal process?
MR. ENGLEHARDT:
Go through the full process and the Commission would have the opportunity to.determine for itself what it wanted to do.
COMMISSIONER AHEARNE:
So that if there were a time difference, then the process you proposed would be a longer time*than the modification I asked Len about?
MR. ENGLEHARDT:
No, when you -- are you talking about the process that he has described in his paper?
COMMISSIONER AHEARNE:
No, I asked him a question about a modified process in which.the Licensing Board acts, the Appeal Board then reviews it, is going to end up rev:itewing th~ whole thing, but they take out the TMI side and do that first and send it to the Commissioner.
MR. ENGLEHARDT:
The Commission would have the opportunity to review the TMI-related issues at an earlier point in time, that's correct.
That is right.
COMMISSIONER AHEARNE:
I see.
MR. BIC:Kv-7IT:
From your standpoint, I think that's preferable to simply suspending the immediate effectiveness rule.
CHAifil'!.AN HENDRIE:
But does it offer any particular advantage over the-base proposition?
MR. BICKWIT:
As I see it, it offers the advantage of getting the Appeal Board review on the TMI issues, which
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.will be a stronger review than the Commission as it.is presently constituted can provide, from the Cornmi$sion standpoint.
26 COMMISSIONER AHEARNE:
I wish you'd look a little to the left as well as to the right when you say that.
[Laughter.]
MR. BICKWIT:
Another variant -- I mean these are all variations on themes -- you. could adopt 1 this procedure as a norm, take a look at the -- when it comes up to you, a recommended or partial initial decision comes up to you, make a judgment at that point on this one.
You want the license to issue, and you want the Appeal Board consideration in the normal course of events.
It's just a question of which norm you start from and the branches you go.up on, respectively.
COMMISSIONER AHEARNE:
That's certainly a variety of options.
CHAIRMAN HENDRIE:
Yes.
Almost -- a variety of options, and while I think I can foresee some of the effects down the line of at least some of the options, I'm not sure that I can see them well enough to make very clear comparisons in my mind to help me to see where I think we ought to go.
Peter?
COMMISSIONER BRADFORD:
Considerations of time aside, the only disadvantage involving the Appeal Board was
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25 27 they mightbe asking you to.embark in*areas in which you do not have much by way of Commission guidance.
How do you feel about that?
MR. ROSENTHAL:
Well, we'd obviously do the best we could within the confines of.* the guidance that we have received.
I think the point is we are bound --
COMMISSIONER BRADFORD:
What I'm after again is it wouldn't be an *altogether new.experience for you.
[Laughter.]
MR. ROSENTHAL:
I don't know*whether I should comment on that.
[Laughter.]
CHAIRMAN HENDRIE:
I'd recommend you don't.
MR. ROSENTHAL:
Let me put it this way:
I think we usually are operating in an area where there is guidance.
Sometimes there is disagreement among the members of the Appeal Board as to what the guidance is.
[Laughter.]
It may be sometimes due to less than total clarity, but I think -- I think there will be doubtless occasions on 1
which when the Commission gets its teeth into a case, whether it's without us having been involved or following our involve-ment, the Commission will reach some new policy determinations which it wants to be plugged in.
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25 28 I tend to think, at the same time, that the grist of the review mill will continue to be a close analysis of the record, the disclosures of record and the determination as to what factual conclusions are to be drawn from those disclosures~
In other words, I'm not at all certain that in most of the cases that there is going to be.an upheaval, as it were, when it gets to the Commission level, because of the determination that the rules on emergency planning as applied to this case should be vastly changed.
I could be wrong about that.
That's pure specula-tion.
But in any case, whether or not there is going to be a lot of consideration of policy implications, particularly determinations, there is also necessarily going to be on TMI issues as well as non-TMI issues a good deal of consideration of the record, the facts.
Just as there always has been in the past.
COMMISSIONER AHEARN'E:
Bob, to what extent are the Boards waiting for the guidance on TMI-type issues?
MR. LAZO:
Well, really, there are very few instances, if any, where the Boards are waiting for guidance from the Commission.
What the Boards are waiting for is the Staff to receive that guidance and policy statement so that the Staff will be able to proceed to present evidence.
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25 29 There are several cases stalled, waiting for the Staff to determine how they are to proceed, and it hasn't been really discussed much today, but there is a question in my mind as to the difficulty of establishing an all-inclusive list of TMI-related issues and non-TMI-related issues.
I'm wondering if that will turn* out to be an easy task.
COMMISSIONER AHEARNE:
I doubt if any of us believe it will be an easy task.
I think the question is whether it's a possible task.
MR. LAZO:
Well, I guess I would recognize a TMI-I related issue if I saw one, but -- when I see one.
CHAIRMAN HENDRIE: You can't define it, but you'll know one way or the other.
[Laughter.]
COMMISSIONER AHEARNE:
My own opinion is I think that there is clearly -- there is some issues it would be defined clearly.
In other words, some that would be clearly no, and many, many will be in a mushy area.
MR. LAZO:
Surely, sir, yes.
MR. BICKWIT:
You could do that case by case, look at each case as it gets its decision below and then decide which issues you would like to look at.
MR. ROSENTHAL:
The parties would have to know where to go.
The problem is if the Licensing Board
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25 30 establishes a decision and three months later the Commission
- says, 11A11 ** right, these are the Three Mile Island issues in this case, and these are the ones.that are not," in the meantim, presumably the parties are hung up unless they simply file a paper labeled "To Whom It May Concern."
[Laughter.]
And then either the Appeal Board or the Commission picks it up.
MR. BICKWIT:
No, I have in mind a shorter time period than one in which the Commission would simply decide which issues it wanted to have a look at.
COMMISSIONER AHEARNE:
Simply and quickly?
MR. BICKWIT:
Simply, yes.
CHAIRMAN HENDRIE:
Well, I must say, I still don't discern here a very clear comparison of the avenues and how best to get to the objective which I think we have, which seems to me to be to allow the Commission to make a final check before any license issuance, that the provisions in the case that have been made with regard to Three Mile-related necessary improvements are in the Commission's view adequate for that case at that time.
And I would think that our objective in doing that would be to do it in such a way that we do not disrupt the adjudicative process *that is the practice here any more
.than absolutely necessary, and also that we not, if we can
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25 31 help it, build into the Commission's final check extensive.
additional *times before actions can be taken, again, unless it becomes clear that those in any given case are necessary.
And I continue to grope among the propositions previously made and some newly made here this afternoon to be able to compare :those propositions one to another and see how cases in general would proceed under each one, and which one of them offers the closest approximation to what I, at least, perceive to be our objective as I have outlined here.
I must say I find myself a little uneasy about plunging ahead and making a decision on one of these correction without a little better understanding of what some of the difficulties are.
COMMISSIONER AHEARNE:
What is our pacing item?
A Board with a decision pending?
CHAIRMAN HENDRIE:
In terms of matters that press us to get on with this?
COMMISSIONER AHEARNE:
Yes.
CHAIID't.AN HENDRIE:
Well, I think the fact that there are a number of cases in the adjudicatory process --
COMMISSIONER AHEARNE:
No, I understand that.
What I'm really asking, is there a Board that needs a guidance and what procedure is going to be followed, on parties that will be reaching a decision next week, two weeks.
MR. CASE:
The Staff needs guidance because it is
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not proceeding in cases on TMI-related issues until you decide how they should be handled~
COMMISSIONER AHEARNE:
I understand that, Ed, but I don't think that's really --
you don't mean this piece of guidance, though, do you?
You mean the Staff needs guidance as to whether or not the Licensing Board issue is going to be final?
CHAIRMAN HENDRIE:
This system is controlled at the moment, rather than coming down from the top, as it were, and issuing instructions to Boards, the Commission is controlle at the moment by the Staff saying, "Wait, we're not able to go into hearings," and that in turn means that the Board's schedule won't go forward.
COMMISSIONER AHEARNE:
I understand that, but I -
thought a lot of that was guidance.
For example, how ought they to treat some of the emergency planning problems, or how ought they to treat some of those other specifics, rather than what happens after the Licensing Board reaches a decision.
CHAIRMAN HENDRIE:
It's a position the Staff is taking in recognizition that the Commission is trying to decide what ~o do here.
That is the Staff doesn't want to appear to have decided for itself what we should*do, and to compel us into action by going ahead into hearings and saying, "All right, we're ready to discuss all the issues and to go forward," and so the system is sort of controlled from
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that side, and the Staff will clearly want to know what ou-r directions are here before they are prepared to come.
forward and appear in hearings.
I've talked to Bob and I've talked to Harold about this situation. It seemed to me that this was in view of the Commission's clear desire.to have a chance to chew on it; on balance the best way to stabilize the situation, to use language of ~lassie --
COMMISS~ONER AHEARJ.~E:
You're saying once the Commission makes a decision on these procedural issues, that Harold will then be prepared to --
CHAIRMAN HENDRIE:
And some of the other things, I think.
Let's ask Harold.
MR. DENTON:
There really are several separate issues.
I need some clearance from you as to whether I go forward on certain issues along the lines that I have proposed to require, and if they are not in the right substantive issues for us 'to go forward on, then we shouldn't go forward at all.
And at the moment, we have just demurred on going forward on any.
COMMISSIONER AHEARNE:
That was what I thought, Harold.
Thank you.
It's more than just the procedures* to follow once the Board reaches a --
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25 34 MR. BICKWIT:
- Excuse me.
Under all thesec,options procedurally the process goes forward.
I should point that out.
COMMISSIONER AHEARNE:
Yes.
I just want to clear that.
MR. BICKv'1IT:
The process at Board level goes for-ward..
COMMISSIONER AHEARNE:
I wanted to. clarify it, but there are other things that were holding the Staff back.
COMMISSIONER BRADFORD:
If you take the criteria that you outlined, what would be desirable process to come out of it in terms of simplicity?
It's almost certainly better to either suspend immediate effectiveness or go to a liberalized stay rule, simply because that creates the least disturbrance in the process that everybody *is familiar with.
In terms of timing, that process can conceivably add somewhere between, what, three and five months, depending on whose estimate is the most accurate?
CHAIRMAN HENDRIE:
I'd guess a shade more than that.
COMMISSIONER AHEARNE:
I would think more between five months and a year.
COMMISSIONER BRADFORD:
Compared to one another, I mean the process of suspending the effectiveness --
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25 35 CHAIR.MA."!\\! HENDRIE:
Yes, I see.
COMMISSIONER BRADFORD:
The advantages of having the Appeal Board involved are, we think they are both --'
we have some questions as to just how one goes about undoing them as TMI-related issues get resolved and get back into the process, and says, okay, that case is now settled by the other one.
CHAIRMAN HENDRIE:
Yes.
COMMISSIONER BRADFORD:
It's just that I don't think those are much harder under suspending immediate effecti e-ness or a stay rule than they are under the first initial decision.
I guess on balance I would at least lean toward suspending immediate effectiveness or whatever equivalent in terms of stays one could expect.
But I think, as I indicated before, I don't see any non-TMI cases.in the pipeline, so it really comes down to just preserving the immediate effectiveness.
Later on that isn't true because you would have reactor cases in which TMI cases had been resolved in earlier cases.
CHAIRMAN HENDRIE:
How about this version that Bob suggested, where you remand the immediate effecti,ve*ness rule to provide in effect a Commission review of just the immediate effectiveness question?
That is rather than just
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25 36 than remove the rule completely, so that the process under the regulations moves immediately through the Appeals Board.
and then comes to the Commission, that it indeed goes to the Appeals Board, but there may) *be effectiveness allowed in an initial decision, or there may not, depending on the circumstances, and we should check specifically on that question, and without necessarily~ealing with the merits of what may then come out of this line when the Appeals Board and Commission make the final review.
COMMISSIONER BRADFORD:
In the short run, that wouldn't have as much appeal to me because I think in the initial cases in the Cornmission is *already committed, at least in the first case, to wanting a look at -- or at least the first license, which may not turn out to be the first case.
MR. DENTON:
Could I comment on that situation?
It would appear to have some merit in that it would allow you to be surgical in your separation out of the case.
You really want to consider -- suppose, for example, there was a heavy water reactor in the middle of the Nevada test site.
If you had some way to have your staff take a look at the way it had moved, and you decide that none of the things you are thinking about change and would really affect that design or site, you could then make a decision.
The difficulty with Bob's proposal is how do you get that information about whether you want to inject yourself
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25 37 or not.
I guess you could ask OGC or someone to :rtake some initial look at it to see if. it contained t'.hose elements that you are interested in, but at least it would all.ow your some discrimination among cases.
COMMISSIONER BRADFORD:* I don't think in practice it*works out very differently from Gary's suggestion that we use the stay rules *to the same end.
I may be wrong about that, but both have that elemen of being able to be a little more particular.
The alternative would be to suspend immediate effectiveness, but leave open some route by which it could be restated.
MR. ROSENTHAL:
There could be a suspension of immediate effectiveness for a prescribed period of time, during which period the o~c could review the initial decision.
The period could be long enough so it could also factor in any stay applications that might be filed, as well as indeed **even briefs that might be filed by appellants attacking the decisio,
and within whatever that period might be, the Commission, with the advice of the General Counsel, could determine (1) whether*
it wished immediate effectivene*ss to be withheld for the duration, (2) whether there was some issue or combination of issues which it wanted to* pull out of the entire package, and decide those itself, having immediate effectiveness then or having the effectiveness rather of Licensing Board decision then hinge upon the outcome of that view.
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25 38 And so that at the same time would allow the Commission to get its hand in on, !.an. informed basis, having at least in the initial decision so much of the record as the General Counsel's Office thought should be looked at and examined and again the briefs.
If the Commission, after.a look at all of those, were to conclude that there was no reason why the decision should not become immediately effective, obviously subject to the outcome of the full appellate review as it is today, then the decision could be given effect.
On the other hand, if the Commission decided that it should be held up, either to await the outcome of Appeal Board review followed by Commission look;or by the event of the Commission's review of some issues it pulled out, then the license would not issue.
MR. BICKWIT:
What you do, in essence, is you have the discussion we are having here after each individual licensing decision.
COMMISSIONER BRADFORD~
The period for three months just as the Appeal Board review was in full swing and the Commission decided that in fact immediate effectiveness was appropriate in that case, and therefore construction or opera-tion could begin, are there any handicaps from your point of view to having the case changed?
MR. ROSENTHAL:
Not at all, in the interim.
After
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25 39 all, that case would be in the same posture as most of the cases are today, in which there is no stay.
There would be no problem.
I think the three to four months would be an ample period to allow the General Counsel to take.a lo.ok at it, and the Commission to think about it, and looking at briefing, the briefing process is probably not complete until around three months after the Commission decision issues, allowing times for exceptions, appellant's brief and appellee's brief.
But I would say a three or four month period, the Commission could probably get a pretty good handle on whether it is prepared to allow the decision to go forward, in terms of effectiveness.* And if not, whether it wishes to pull the issues out or just 1:eave them all in the first level of the Appeal Board.
MR. BICKWIT:
A threshold decision might be arrived at in a much shorter time period, whether to take the three or four months.
MR. ROSENTHAL:
That's right.
COMMISSIONER AHEARNE:
Len, at some time in the past, you remember a discussion about setting up a system by which I thought OGC would monitor boards?
Was that ever examined?
MR. BICKWIT:
The issue was --
COMMISSIONER AHEARNE:
The Commission doesn't really
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25 40 much in the way of current knowledge of what is going on in any of the hearing processes until after a decision is reached.
MR.*BICKWIT:
It would be beneficial to do that, so L
that we're just that much ahead of the game, but ultimately the decisions are going to have to be_made and.won't really be possible until you have a d_ecision *.
COMMISSIONER AHEARNE:
But. I had seemed to remember Fitzgerald raising that issue at one point months ago.
Do you know whether anything else was looked into on that?
MR. FITZGERALD:
I think I deny it.
[Laughter.]
MR. OSTRACH:
Commissioner, that subject was raised, I believe, in your interview with Chairman Milhollin of the Immediate Effectiveness Task Force as one of the possible recommendations -~of *. the Immediate Effectiveness Group.
I don't think the General Counsel or Mr. FitzgeraLd could be
-charged with being behind that.suggestion, or even being aware of it.
COMMISSIONER AHEARNE:
I wasn't trying to imply they suggested it.
CHAIRMAN HENDRIE:
I thought I remembered some discussion at a hearing, Congressional hearing, along these lines.
MR. BICKWIT:
I don't remember it.
From time to
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25 41 time, in individual proceedings we have talked about*whether it would be a good idea to monitor such as the TMI 1 proceeding I don't remember that suggestion, but I think that's a good idea.
CHAIRMAN HENDRIE:
It does seem to me that some further thought to this matter is in order, and I know some of the Commissioners would like to muli these alternatives more because we close on a decision, and I am very leary in trying to select forwmyself today under these options whether to go ahead with it without further thought, I wonder, and so I propose that we postpone a decision on this matter at this time, and I wonder.if it would be possible for some sitting down, side by side, as it were, of the several propositions that we talked about this afternoon could be made.
Alan's most recent one.
And I would hope that you could think a little bit for each one about the sorts of times that are involved,about the sorts of disruptions or difficulties that each might cause, in what I'll call the normal adjudicative chain, and also the aspects of each with regard to what I'll call the practicalities of Commissioner involvement.
And by that, I mean to suggest that I doubt our ability here to become, beginning with the most extra-ordinary circumstances, an eridence-taking panel.
There simply is not the time, and as I've noted before, I have some
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25 42 concern about the nature -- about my ability to manage that sort of proceeding here.
Now I don't know how far you think you could go with this, but, John, you say you've got seven variations listed?
Some of those may turn out to be the same thing by the time we've thought about it, or very near to the same thing, so there may be a small number.
But it would truly be a help if some thought to the way each of these would work and its pros and cons could be supplied.
I'm sorry,that we keep having to iterate and go back and ask for more information, but I feel very uneasy picking my way over this uncertain ground.
COMMISSIONER AHEARNE: It's a significant issue.
It could have very substantial effect.
CHAIRMAN HENDRIE:
I really don't feel we are at a decision point ~his afternoon.
Other comments?
Peter?
John?
COMMISSIONER AHEARNE:
I agree.
CHAIRMAN HENDRIE:
Then why don't I allow us to hav~ a four-minute break, and start on the hearing on the clearance rule proceeding.
[Whereupon, at 3:25 p.m., the hearing was adjourned.]