ML22230A122
| ML22230A122 | |
| Person / Time | |
|---|---|
| Issue date: | 10/11/1979 |
| From: | NRC/OCM |
| To: | |
| References | |
| Tran-M791011 | |
| Download: ML22230A122 (80) | |
Text
RETURN TO SECRETARIAT RECORDS NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
PUBLIC MEETING DISCUSSION OF DRAFT POLICY STATEMENT ON COMMISSION PARTICIPATION IN LICENSING ACTIONS Place -
Washington, D. C.
Date -
Thursday, 11 October 1979 Pages 1-78 r
ACE - FEDERAL REPORTERS, INC.
Offici,al Reporter3 4.44 North Capitol Street Washington, D.C 20001 NATIONWIDE COVERAGE* DAILY Telephone:
(202) 347-3700
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BEFORE:
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DISCUSSION OF DRAFT POLICY STATEMENT ON COMMISSION PARTICIPATION IN LICENSING ACTIONS Room 1130, 1717 H Street, N.W.,
Washington, D.C.
1 Thursday, 11 October 1979 The Commission met, pursuant to notice., beginning JOSEPH M. HENDRIE, Chairman, VICTOR GILI.NSKY, Commissioner r RICHARD KENNEDY, Comm.;Lssione.r, PETER A. 'BRADFORD, Commissioner, JOHN F. AHEARNE, Commissioner.
ALSO PRESENT:
Leonard Bickwit, Esq.
Stephen s.ostrach, Esq, Martin Malsch, Esq..
Lee Gossick, Robert Lazo, Esq.
Alan Rosenthal, Esq.
Howard Shapar, Esq~
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P R O C E E D I N G S CHAIRMAN HENDRIE:
Why don't we start the meeting and get the transcript rolling?
The Commission meets this morning to continue its discussion of procedures for Commission review of license applications.
There was a meeting a week ago today on this subject when we discussed (a) an Interim Policy Statement which in fact has gone out and (b), the oUtlines*of a policy state-ment on Commission participation i.n licensing a.ctions.
We argued back and forth over some proposed options and alterna-*
tives and seemed to come rather decently to agreement, not total to be sure, but general agreement, on a Commission parti-cipation procedure.
We directed the General Counsel, with the help of the Appeals Board members and so on, to draft that up.
We have the Counsel's draft policy statement back.
It came to 'US yesterday.
I got mine at about 2:00 in the afternoon, and we meet this morning on it.
Len, perhaps you'll march us through the draft and, Commissioners, please' make comments, ask questions, arid argue the points as we go along.
MR. BICKWIT:
Fine.
I'd like to proceed by flagging issues for you that we feel need some additional explanation 1
) letting those that we feel don't simply sit.
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On page 2, the first full paragraph that starts "The Commission has now determined that, until further notice, adjudicatory proceedings con-cerned with such new licensing action will be con-ducted as described below."
3 We have not come to grips with one particular prob-lem that this sentence and perhaps some others raise.
It's clear to us that you don't want to apply this procedure where the license* is already issued.
It is also clear to us that where neither a license nor an initial decision has issued, you do want to apply this procedure.
What we are not entirely clear on is what happens where a decision has been issued but no license has been issued.
COMMISSIONER AHEARNE:
Can you give an example?
MR. BICKWIT:
The only exampie I know of is North Anna.
There may be others.
But my understanding is that this particular problem is restricted to-the North Anna situation.
I should remind everybody that we are now talking about a specific case if that is the circumstance.
What we would suggest is that you not apply this pro-cedure to matters under review by the Appeal Board in that case 23 but that you recognize that the license cannot be issued under 24 your previous policy statement by the Staff without further Ace-Federal Reporters, Inc.
25 action of the Commission.
Just what that means is something
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that we will have to address later in this meeting, that that be the protection that the Commission has and that you not feel the need to. get additional protection by applying the entire procedure to the current Appeal Board review.
If that recommendation is accepted, to make clear that that's the way you would go, we would suggest this altera-tion.
Where it says:
"The Commission has now determined that, until further notice, adjµdicatory proceedings con-cerned with such-new licensing actions will be con-ducted.*. "
Instead of "concerned with such new licensing actions" the words would be inserted:
", *,. adjudicatory proceedings which have not, as of the date of this statement, resulted in a complete initial decision by a licensing board."
COMMISSIONER AHEARNE:
You're saying North Anna is the only case in which a licensing board.has made a decision but the appeal board has not?
MR. BICKWIT:
Where the licensing board has made a decision and fio., license has issued.
COMMISSIONER GILINSKY:
What would you do in un-contested cases?
MR. BICKWIT:
We reach that at a later stage in this paper.
And you're going to have to resolve that.
We
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haven't had substantial guidance on that question.
What you have done is, youtve said in uncontested OL cases, no license will issue without further action of the Commission.
I suggest you take up that whole question of what "further action of the Cornmission 11 means when we reach. that stage in this particular paper.
You will have to decide whetb.er that means affirma-::-
tive action by the Commission, check,,...off by the Commission, or whatever.
COMMISSIONER GILINSKY::
What is 11ch.eck-off? t,-
MR. BICKWIT:
Well, what it means, in my own mi:nd,.
is the procedure that you used where it was up to the. Staff to determine that. Davis-Besse or Rancho Seco was to go bac~.
up, but that when the staff came. in and briefed you th.er*e.
would be some discussion.
A.nd it did not, in those cases, involve an affirmative decision by the Cornmissi:on to bri.ng those plants up, but it was understood rath.e~ clearJ,y tha,t the staff was not going to bring those. plants up if th.e Comm.iss.t.on indicated some displeasure with doing soL COMMISSIONER GILINSKY:
1Check..... off 1' seems to carry a sense of the Commission not doing anything, just checking a box. That's why I object to it every time it is raised.
MR. SHAPAR:
Doesn "t the policy statement say,.
if my memory serves me correctly, that the. staff won 1*t issue.
any licenses without further action of th.e Commis*sion7
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MR. BICKWIT:
Yes.
And as to what that means, I suspect different people have different concepts.
COMM:ISSIONER GILINSKY:
Well th.ere could be various kinds df actions~ but inaction is ~n action.
COMMISSIONER KENNE.DY; I. 'm deLi.gh.ted to hear that because it must be clear that I certainly agree with_ it *.
COIYIMISSIONER GILINSKY z We 're going to pocket that~
MR. BICKWIT:
There are case holdings,. or court holdings that say inaction is action.
COMMISSIONER AHEARNE.:
Pardon me for continuing to try to understand, but--
COMMISSIONER KENNEDY:
That's what he said.
I thought he said it was action.
That s why I. was ag;r;.e.eing with it.
I certainly agree with the courts~
Their wisdom has never been a doubt in my mind.
COMMISSIONER AHE.A,RNE; So you l;r;e saying this* would app'ly only to North Anna because tha.t I s the. only case tha.t of-- what kind, now?
MR. BICKWI.T:
The only cas.e th.a, t r kn.ow of ~-~ a,n.d I would like to hear the boards contradict tbat if it i.s wrong.
MR. LAZO; I. bel:L.eve you 1:,re qt1,i.te. co:i:;-*;r.ect; it t 9 the only case.
MR. BICKWIT;. It \\*s th.e_ only case whe;r;,e. an inJtia,l decision has been is.sued but a license h.as. not bee.n. i.ssue.o._
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COMMISSIONER AHEARNE:
An initial decision has been issued.
Now are there cases where an initial decision has been issued and the appeal board still has it under considera-tion?
MR. BICKWIT:
Yes.
But the license has issued *.
And I assume the Commission doesn 1*t want to apply that to those situations.
COI1i.MISSIONER AHEARNE.. :
I see..
Well, can I ask the status of North Anna as far as the appeal board is concerned?
MR. ROSENTHAL:
Th_e a,ppeal boa;rd ha,s si.gn_ed off on all matters.in that case except fo;i:;-, two~
The.se were safety issues, one relating to purnphouse settlement,._ the otheJ; relating to the probability th.a.ta. turbine. missile would hit a vital safety structure.
Those* issues were rai.sed by the.
appeal board sui sponte during its review..
There was no appe.al taken from the licensing board '*s decision *.
The appeal board, heJ,d ;itse.lf an, eviden_tiary be.a,t;:,in.g on those two issues in June.
Quite recently the proposed findings of fact and conclusions of law from the parties we;i::-e.
all received.
And the board de.c;i:ded that case and it now i.n.
the process of preparing its decis.:j:,on.,
CDMMISSONER AHEAR.N:E.:
Thank, yo.u..
MR. BICKWIT:
Without obJecti.on. we 1' 11 a,dopt thJl?
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language which will clarify that position.
COMMISSIONER AHEARNE:
That would then move the North Anna case over until a clarification of what"further action by the Commission" means?
MR. BICKWIT:
Right.
It will be treated as an uncontested license.
COMMISSIONER AHEARNE:
On that same. pager could I ask a further question?
I have a little problem with your th.ree reasons.
I would prefer to strike the first one and only use the second two.
Because, at least in my mind,.;i.t's a combination of the second two, and the first is not re.ally a relevant issue.
MR. BICKWIT:
I have no problem with that~
CHAIRMAN HENDRIE:
I don ':t either.
COMMISSIONER KENNEDY:
I don '.:t ei.th_e.r,.
But th.a, t :j:s not consistent with my memory of the discussion..
But it doesn ~-t make any difference.
MR. BICKWIT:
On page 3 J: s.trnply want t.o point out,.
at the top, that what we. are. doing h.e.:re. is :rulemakin.g-; that what one can do by rule one can only undo by rule.~
I guess there are caveats to that, however.
Thus, what we are. doing t.s a.;rnen.d.;i:ng th.e. rule 2.. 7 6 4,.
and wetre do.;i.ng it -- we.t*re making that amendment effe.ct;tv,e.
immediately.
We t:re. mak.ing two fin.dings here whi.ch allow th.e.
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Commission to do that.
One is that this is a non-substantive rule of practice that gets you out from under the requirement for notice and comment.
COMMISSIONER KENNEDY:
Are we just saying that is the case, or is there genuine justification to suggest under the rule and precedent that that in fact is true?
MR. BICKWIT:
I 1 d say that there :is..
But I would say it is fuzzy.
It is clearly a rule of practice in the sense that it is part of Part 2 of yo~r Rules of Practice.
As to whether the APA means all rules of practice by its use of the term "rules of practice" is not entire.ly clear to me..
And since this profoundly affects substantive rights it is-:-..-.
COMMISSIONER KENNEDY:
Tha,t,.. S the reason for my question.
Clearly it does, MR. BICKWIT:
Ye.s.
Fo;i:;- tha,t re.a,son. we. su9ge.st that you say both that it is a rule of practice "'.,..._ which it is -- and, secondly, tha,t you mak.e th.e. finding in case a court would hold that it was not a rule of practice with.in th.e. me.an°"
ing of the APA, while admitting it's a rule of practi.ce. w.;ith..;i::n the. meaning of our rules, that you also make. the. finding tha,t it would be contrary to publ.;i...c interest to have notice. and, comment.
COMMISSIONER. KENNEDY; Before. you get to th.e public interest question, rule of practice--
it is deicribing it as a non-substantive
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25 MR. BICKWIT:
I think thatls a good point.
I would be more comfortable with that word out.
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- MR. SHAPAR:
I think,the word "internal should come out, too.
I don't think that's accurate~
COMMISSIONER KENNEDY; I would not think so e.ith.er
- COMMISSIONER AHEARNE:
Len, you have already put it as a difficult situation.
I would be hard to defend calling it significantly affecting the substantive rights but being non....
substantive.
MR. BICKWIT:
That's ;right._
COMMISSIONER KENNE.DY; That \\*s the ;re.ason for my question.
So we're striking th~ words "internal" and "non-substantive;" is that correct?
MR. BICKWIT:
Okay. We strike "non-substantive".
COMMISSIONER KENNEDY:
Howard su9gests II internal *. "
And it seems to me he also has a point.
MR. BICKWIT:
I don't understand the point.
MR. SHAPAR:
Well it obviously affects thi.rd parties, arrl referring to it as an internal rule I th.ink.:t.s:
somewhat-- Isn't it a term of art, though, in the A.PA, 1'-'rules of procedure?"
MR. B_ICKWIT:
Practice. and px;-,oce.dure.*
I. have no problem with striking.'\\t.nte.rn.a.l.. t~
Now with respect to-~-
We ta. ta,lke.d a,bout exce.ptJ.on.~
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25 11 from the requirement of notice and comment.
The APA also requires that final rules be published and not made effective for thirty days.
And the contrary to the public interest finding will also allow you to come out from under that requirement, as well as the requirement for notice and comment.
At the bottom of page 3-..,..
COMMISSIONER AHEARNE; Will you expla,tn wh.at you mean by that sentence?
MR,. BICKWIT; Th.at sen.tence.?
Ye.s..
We tre acknowledging some.thing th.a,t was. ackn.ow, ledged at th.e previous meeting, which. i:.s that the Commission.
contemplates some changes in th.e substantive re.qui:rement.s to be. imposed on licensees, but that most of thos-e. ch.ange.s can be done through interpretation of th.e. rule.s. rath.e~* than. thr*o-q<;rh changes in the rules.
And we. a:re ma,k;ing the. s.tatement that in the. future we expect our rules to be. i.nte:rp:re.ted somewhat d.if, ferently than they have been in the. past.
In many cases the rule.s a:re. extreme.iy vague...
COMMISSIONER, KENNE.DX:; But we. are. the. ;inter-prete.rs.
of the rules.
COMMISSIONER, KENNED):;
we. are. saying* th.at thexeJo;:i;-,e we will be interpreting th.em d.t.fferen_tly th.an. we have.;i*n th.e_
past.
We. are serving notice on th.e publ,.;Lc th.at th.at is th.e.
case.
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25 12 MR. BICKWIT:
And on the boards.
COMMISSIONER KENNEDY:
And on-the boards; right.
MR. BICKWIT:
We're suggesting the boards do that so that we won*t have to completely undo what--
COMMISSIONER AHEARNE.:
You \\re ask.ing the boards to give consideration to the implication th.ose regulations arid".'".,..-
I assume there is a preposition missing.
MR. BICKWIT:
Yes, for. '.l-COMMISSIONE.R AHEARNE.:
You \\*re asking th.em to give consideration to the implica, t.;ions, so you' re a,sking the boa,rds to draw their own conclusions as to what those implications would be.
Is that another way of saying that the boards should feel themselves not bound to previous interpretations of the regulations?
l MR. BICKWIT:
That~s what it is meant to say._
The next sentence goes further, it goes beyond th.at and says the boards should not feel obligated to issue. a license when it finds that all the r~gulations have been met,.
You have a number of appeal board decisions which, if followed, would require the issuance of a license whenever a determination was made that the regulat;i;ons-wer-e met~.
COMMISSIONER KENNED1; I want to be. sure tha,t we.
understand the import of that sentence, and so I would l:tke. to read it.
itrt should be und~stood tb.at as a re.s*ult
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25 13 of analyses still under way the Commission's regula-tions and regulatory policies may be further changed and thus compliance with existing regulations may no longer be sufficient to provide reasonable assur-ance that the public health and safety will be ade-quately protected. 1' That, it seems to me, has definite relevance to all existing licenses.
And the question is:
Is that what we intend to say in this document?
COMMISSIONER AHEARNE:
Why did you not, Len,. say "may no longer be sufficient to warrant approval of the license application?"
MR. BICKWIT:
I would ha,ve: no problem with phrasing it that way.
Th.e understanding is* th.a.t th.e reason it would not is that a finding of adequate. prote.cti:on would not be possible.
. CO.r,,".iMISSIONER, GI.LI.NSKY:
Well we have continually upgraded standards for licenses over the years.
rt '*'-S th.e same problem we face every time you add anoth.er requirement..
COMMISSIONER KENNEDY:
I understand that..
CHAIRMAN HENDRIE:
But we don 1 t normally issue th.is kind of a statement.
COMMISSIONER, KENNEDY:
Nor do we say all acti:.on.&
in the past have been inadequate. to protect the public h.e.alth.
and safety.
And it seems.tone that 1*s the implicati.on of the
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25 14 statement.
I just want to be sure we understand what wetre saying.
I may be misreading it, but it seems to me that that's the way it can be interpreted.
And we need to understand what it says and what it is intended to say.
COMMISSIONER GILINSK.Y:
Well the law speaks of the adequate protection of the public health and safety, And to get over that line has required more in recent years than it did in past years.
MR. SHAPAR:
I think th.ere ts a lot of cases that say, appeal board cases and others that say that if the applica tion demonstrates that all the. regulations have been m_et th.e.
license must issue.
Now this is a departure from that.
MR. ROSENTHAL:
I didn l t read i.t as such.*.
I thought what it was saying was that the existing re.gulattons-and regulatory policies may pe. changed..
If th.ey are changed.-.'<:'-
COMMISSIONER KENNED¥;
Th.a,tt$ the. fir.st part..
MR. ROSENTHAL; Then..t.t says., ... and thus *** "
nThus. 1'. So it ties with the first part.
".** compliance with existing regulations may no longer be sufficient to provide reasonable assurance.~."
If you read it with the word l\\thus in th.ere., at least as I read it, it was not al teri~g the appeal board l*s line of deci_sions that the regulations.,...,..that compliance with whatever regulationsf or regulatory polic.;i.e.s are. in effect at the time, is sufficient to warrant issuance of a license.
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25 15 I read this to suggest that there may well be changes in regula tions and regulatory policy, and thus compliance with existing regulations may no longer be sufficient, etc, And that would be perfectly consistent with the appeal board \\*s* line. of cases, because the appeal boards have always re.cognized that the.
standard in determining reasonable assurctnce is the re.gu,la,tions and regulatory policy that exist at the time that th.e ma.tter comes to the appeal board, and that th_e.$e. a.l'.'e. a.J,wa_ys subj act to change from time to time,.
CHAIRMAN HENDR,IE; Al,an, wou,ldn tt you get wh.epe. you, want to go -- which is to, first, n.ote.. that, as a. re.sul t of analyse.s still under way, the regulat:t:on.s and, policies ma,y* be.
further changed,. and then get iJW[\\e.d:i.a te.ly to the. :re.sul t. by*
deleting from th~e on down to tha be.ginning of t.h.e. next sentence?
The po;i.nt you ~re. ma.tJng is th.a,t l,icensing boc1;rds are. to be alert for wha,t. they pe.r.ce.;i._ye. to be. close ca.11 situations, where they perceive. that inde.ed re.gulations may change, and that therefore. oh the. particular point a,t issu,e they are being asked to try to s:ignal th.a,t as a point for consideration in the subsequent fast track appe.llate. l'.'e.view and Commission thing.
And I think you cou,ld just_ go for* the.
word changed'1 in the fourth line., put a period, ther-e.,. an.d then start "The Commission expects tb-e. ltcensin.g hoards..,.~ *. ";
COMMI.SSIONER. GILI.NSKY:
Don \\t we. ne.ed some. wor,d,s*
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16 such as "substantial or nconsiderable in talking of these changes in regulations?
The regulations are continually being changed.
They have been changed for the past twenty.,,.five years.
COMMISSIONER KENNE.DY:
And there ha,s always been, in that connection, decisions to be. made a,s to ba,ckf i tting requirements.
COMMISSIONER AHEA.RNE:
You mean make it 1'-sub-:--
stantially changed?"
CO~".iMISS I ONER GILINSKY:
I don't know that ;Lt 1!S the right word.
But we are in a period where. the. rate. -of. change is going to be. grea te.r than it w:as in the past *.
COMMI_SSIONER AHEA.RNE; 1-1-SignJ:;Eicantly.. 11' COMMISSIO~ER GILINSKY:
Th.e.refore. one needs to pay particular attention to these. decis.;ions.
Be.cause otherw.:j:se.,..
COMMISSIONER AHEARNE.:
.... ~we 're just pointing out the obvious.
COMMISSIONER GI.LINSKY;
.,...,..we. 1*re just pointing out the obvious.
COMMISSIONER AHEA.RNE:
Ye.s ~
MR. BICKWIT; Well, one qliestion. you ha,ve to con~
front is, Do you want the boards to be re.quj::r-e.d to issue. a decision in the circumstance*where ftts pretty obvious to them that. Commission policy _is changi~g or ha,s changed but ha,sn t:,t reached the point of changing tb.e re.gula,t.tons?
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25 17 I think it's a perfectly acceptable way to go, either of those ways is a perfectly acceptable way to go.
We assumed that you.would prefer that the decision not be issued in those circumstances.
But if you want the decision issued,and to change the policies on review as to the particu..,.
lar case, I se.e no problem with_ it.
MR. ROSENTHAL:
You are hypoth.esiz~g, Len, a situation in:which a Board wc.-uld conclude that wh.ileall existing Commission regulations were :l;ully complied with nonetheless it was not in a position to say that the construc.,..
tion and oper,ation of the reactor would provide. the reason..-
able assurance?
COMMISSIONER KENNEDY:
Thatts what I thin.k. th.e.
sentence says.
MR. BICKWIT:
That~s what it~-s meant to say._
A_nd it is meant to--
I can see. why you re.ad it th.e way you did,.
Alan.
But what it was designed to do was to overrule. those appeal board decisions.
COMMISSIONER KENNEDY; What it seems to me it does inevitably is to throw _the entire regulatory process into a cocked hat.
Now I fuink we ought to understand that that's wh t we are doing, because thatts what it is *.
Am I correct, Alan?
MR. ROSENTHAL:
Well I dontt know whether I would have characterized it in those colorful words. But I: have,
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25 18 quite frankly, the same concern that you do.
I don't understand~-
COMMISSIONER KENNEDY:
And so do your colleagues.
MR. ROSENTHAL:
--how possibly an adjudication can be conducted on that basis, I mean, when the parties to a licensing proceeding come before a licensing board they have to have some idea as to precisely what the ground rules are.
And the_ground rules no\\i on the safety side are fashioned
. in terms-of, or with reference to the outst.anding statutory and regulatory provisions and any other kind of guidance that the Commission may have provided~
Now if an applicant is at this poj_nt confronted with the words, Well, sure, come. on in and tell us that your application is in full compliance with all outstanding Com.-
mission regulations and directives, but that may not be enough,.
then some member of the licensi.~g board may de,c.;tde. the. Com-mission has been resti~g ori. its oars a.n.d the. Comm.;r.$.s.:Lon sh,ou,ld have some additional r~gulatory requirement, and, even though.
it hasn (*t, the licensing board is_ go;tng to turn the application.
down.
That's not adjudication.
I mean, it may be something else, but it is far removed from anything that I have ever been led to understand falls in the realm of adjudication.
MR. SHAPAR:
Beyond that, I think there's an important point here *. If we look at the Commissiorlls purpose in setting this thing up, I thought the main purpose was to
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25 give the Commission the last word, not *to say that th.e boards would be implementing different regulations but that even if a board makes a favorable decision, that the decision would be stayed until the Commission decided whether new requirements were met.
I don't think the Commission, at least based on prio discussions, meant to delegate that kind of authority to the boards.
CHAIRMAN HENDRI.E:
I.th.ink. that ~*s r:,Lght..
And that '*s why I suggest again that one cures what se~ms to me to be a difficulty by just deleting from the word cha~ged down to the start of the next sentence, and to leave the admonition from the Commission to the licensing boards to pay particular attention to analyzing the evidence. on particular issues where they think there's a close call, since those are the ones that are apt to be the subject of particular Commission attention and very possibly further guidance and change in regs, and so.'.
on.
And I thought that was what we wanted from the boards rather than--
COMMISSIONER.GILINSKY:
Would you keep the last part:. of that sentence?
Because the boards now have the
. power to--
CHAIRMAN HENDRIE:
Oh, absolutely,.
ThAt '"s* very important.
Yes.
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~~,:...t MR. BICKWIT:
What was your suggestion?
CHAIRMAN HENDRI:E.;
Put a I?eytod ~fte+:' th.a word
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25 20 "changed" in the fourth line, and then delete from there to the end of that sentence, starting again with. 11The Commission expects***" and th.en go to the end of the paragraph.
I MR. BICKWI.T; I have *no problem with. that.
But I would like a response to what has been said from this sid of the table.
MR. OSTRACH.;
Two points, Mr~ Chairman~
First of all, I think Judge Rosenthal.,...,.. Mr *. Rosen th 1 does an injustice to his-abilities to conduct~adjudication.
I don't believe that this--
CHAIRMAN HENDRIE:
But not to outguess. this Com"""
mission, from what he's saying.
(Laughter}
MR. OSTRACH:
I think there would be nothing impossible in a situation where compliance wi,th the. re.gulations created a presumption of adequate prote.ction for the. publi_c health and safety, subject to rebuttal, if a party could sh.ow that nonetheless in a part;i.cular area ':"'~ WE} have. some.thing similar to that already in the regu,lat.:j__ons,.t.n lO. CFR 2 *. 7 58, th pr9v+/-sioii-~:::?:-that a showing could be made th.a,t.tn a spe.cific case a regulation is no longer appropriate to do justice, I don't find it inconceivable that the Commission might want to se.t up.a.situation where a party could show that in a particula I
area the Commission's formally printed regulations haven't kept up with the Commission's own development and th.e Commissi_on **s
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25 21 own thinking, so that compliance with that regulation shouldn't be sufficient to insure a license approval.
The question is, Does the Commission want a licensing board that is convinced that a regulation no longer is sufficient to adequately protect the public health and safety--
thinks.
MR. BICKWIT:
In the view of the Commission.
MR. OSTRACH:
Yes; its vi.ew of what the Commission
--to, nonetheless, issue. a decision?
There ts nothing wrong with. that.
You t,re.
providing that the Commission itse_lf will pass upon th.e license. issuance-.
COMMISSIONER KENNEDY:
Which is. why I thought we.
were doing it.
MR. OSTRACH:
You t*re just sort of forcing a licensing board to sort of_ grudgingly say, We. think. this* is* a terrible idea but by what we're bound by wetre approving the issuance.
There '*s no problem the.re.
I.f that ts th.e way you want it wei11 change the language..
There is one problem,. however, Mr.. Chairman. The Commission cannot ignore its own re.gulations either..
When a case comes to the Commission, if the. regulations. have all been complied with but you no_ longer believe the regulations are.
sufficient to protect the public health and safe.ty, unless you put in some language here now to indicate that tb.:,ts pol.Sey*
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25 22 has been changed I believe there can be a serious argument that you're going to be bound to do just what the licensing board is bound to do, say: Oh, gosh, these are--
Well, none-,-
thel.ess.
And I think that at the last you ought to make it clear that the Commission may determine in specific cases that compliance with the existing regulations is not sufficient to protect the public health and safety.
Be.cause. you might want to do that when the case gets to your leve.l..
MR..SHAPAR:
Of course the Commission has control over the stay as to whether or not the. license. will be. isl;med.
But beyond that the Commission itself has rulemak.ing authority.
MR. OSTRACH:
We think it would be bestr though.,
if you* intend the -c-hange ~the regulations in a specific case, to say *it.
CHAIRMAN HENDRIE:
Isn't it enough_ to know that indeed the regulations and regulatory polic;ies may be. ;further changed?
MR. OSTRACR:
I would at least add a phrase. *tin a specific case, or something li.ke. that, to make it clear that you're considering a s;i.tuati.on, when the case comes to you you look at the r,egulations as they tre applied in that case and you realize that regulation is no longer sufficient, you want to change the regulation, Can you do it in that case without, as Mr. Shapar suggested, a disi~genuous process of staying it while you rush out the other door and change a rule and then
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25 23 say, Oh,_gee, now we can-- the new rule applies.
I would rather you make it clear~-
COMMISSIONER AHEARNE:
If we could le.ave personali-ties out of it.
MR~ OSTRACH.:
It was Mr. Shapar's-suggestion, sir; that's all.
I think it would be more direct if the Commission indicated here that it might be planning on changing its regulations in a specific case.
COMMISSIONER GILINSKY: - I ~a like to ~e.e ~,ome. words like "conside.rably or "in important re.s.pects~ lt*
COMMISSIONER AHEARNE.:
It seems I ha.ve. th;i.l?*
feeling of deja vu, that wetve been. thr,:ough. thj::,s.- befor-e *.
But let me say: it appe.ars we t*;re back. on the i.s~e. of there are three options: we can either not have. any boards. go forth.
until the Commission has resolved all thepolicy questions, or we ca rl:lave th.e boards resolve th.e policy questions, or we. can have the policy questions alerted, that h.ere. ts where. th.e.y a;r:-e.
and we have to end up deciding on th.em..
Now I had thought that last time. we ha.d come. out on that thi.rd option.
I thought th.a, t the boards, th.e licensing board in reviewing these i.ssues were. to mak.e. recornrnenda tions where th.ere we.re close calls, and alert i.n their decision that Here's a close call we had to make.
And*I would view-that kind of a close call as being a situat.ton whe~e. th.e :r~gulati.on.
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25 24 says this is sufficient, they suspect itts-going to. change, they have to go with the regulation.
Thatts this kind of a situation where they alert, And I thought also th.en that th.e.
appeal board was_ going to do the same thi.ng :j::n the.ir quick review as it outlines here, that tb,ey will th_en. identify to the Commission where a policy is u,nclear at tb.e. pre,sent time.
or a policy decision has to be made.
I didn I t see ;i.n th.e. de.scripti.on of the. l,tcenS'i.~.g board, though, that aspect.
I would have. thought tha.t.
it would be appropriate to say that be.cau,se, a. s:ubs-tantial change is made, may occur, that th,e.:re. w.t.11 be, the.se. kinds of situations, and that the licensing board sh.ou,ld. alert._
What you have here is, The Conrrnts$ton expects the. LicenS'--tng
- Boards to pay particular attention in th,eir de.c.i.sions-to analyzing the evidence*** 11 I thi_nk. you, ought to go on and point out that the licensing board should expl:j::ci:_tly ca,1,1 attention to that. And that ts the same kt.nd of a thlng: they, ought to be calling attention to any place where, they are, interpreting existing regulations and regulatory poltcte,5 differently, due to the implicat,ton$.
Those are the areas wb.e;t;"e you, expect Ule l.tcens-ing board to have alerted both the. appe.al board and use. th.at they I ve done something differently or made this k.ind of close, call.
MR. BICKWIT; Fine~ But you ~'re still left with.
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25 25 the point that Steve raises with. respect to the Commission.
COMMISSIONER AHEARNE:
I have no problem with.
appropriately chosen words th.ere to point out th.at the Commission. has th.is potential change~
I am concerned about the licensing board making that change~
MR. BICKWIT: I understand~
But with. respe.ct to the Commission I th.ink the exchange between Howard and Steve is an important one..
Do you want to $ay th.at the Commission can only deny the license if its existing regulations are met, if it chooses to amend the regulations.
And my advice is that you ought not to say th.at.
COMMISSIONER GILINSKX; Why not say in here:
And the Commission, when it takes up the. matter, may decide that--"
MR. OSTRACH:
Thatts all we. s~c;gest, sir..
COMMISSIONER BRADFORD; A,re. we. th.en leaving ;Lt in a way that the licensing board and th.e. appeals board in fact will issue a license if they are in compliance wt.th -..... issue. a decision to the effect that a li.cense would i.ssue.?
MR. SHAPAR:
But flagging po.;in.ts that ought to be brought to the attention of the Commission th.at trouble. it..
COMMISSIONER AHEARNE:
Not nece.ssari.ly trouble.
them, but notice that here is something..
COMMISSIONER BRADFORD:
Well what*s that going to do to rulings on questions such as whether a particular
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MR. BICKWIT:
Th.ey will have to follow the existing regulations.
COMMISSIONER BRADFORD:
Wh.en the emergency prepared ness issue then_gets to th.1: Commission, the record will reflect a bunch of rulings made on the basis of th.e existing regula-tions even though the Commission ls attitude on emergency
,preparedness :may be completely different?
MR. BICKWIT:.
That~s right~
COMMISSIONER BRADFORD; So that we. would then have to remand the issue, reopen it, and take evidence. anew.
COMMISSIONER AiIEARNE:
Unless we had already made.
that decision explicitly and ch.anged it.
COMMISSIONER BRADFORD:*
Even th.en, anything th.at has gone on before the licensi~g board, any cases* that have been closed out will be based upon th.e re.cord~
l.t doesn tt 18 reflect that_. this area,,or operator train.:i.ng, or.1rn.actor 19
- instrumentation--
20 21 22 23 24 COMMISSIONER AHEAR.NE; In those case.s. they will.
have to be remanded anyway.
COMMISSIONER BRAD,FORD; we. '-\\r;*e_ 90.:µig to be ;i:;:ema,n.d.i:ng a lot of cases, then.
MR. SHAJ'AR:
From a pra.ct.t.ca.1 ~ta,nclpo.;t.nt :I' thi.nk Ace-Federal Reporters, Inc.
25 I ought to point out that at lea~t one ot the pa,~tte? would be
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25 27 alert to impending changes ih Commission policy and urging that position before the Board.
COMMISSIONER BRADFORD:
But it won't make any difference if the position is in compliance with the existing regulations.
MR. SHAPAR:
I'm just saying that in the practical world, looking at your su9"gestion, it won"t be handled 100 per-cent, but close to it.
COMMISSI.ONER GII.,INSKY:
,.l\\ren tt you talking mostly about interpretation of the regulations r*ather than the regula~
tions themselves?
MR. BICK.WIT:
For the most part.
You've dealt with that in the previous sentence.
But you will have situations -- and emergency planning appears to be one of them where 'fe':i:'e talking about changes in the regulations.
COMMISSIONER GILINSKY: Well it seems to me the way to handle this problem is for the Commission to provide guidance on specific issues as rapidly as possible.
MR. SHAPAR:
And that point is well made in this draft.
MR. ROSENTHAL:
It does als.o seem to me th.at i.f the concern is that contentions wi.11 be excluded and that at a subsequent time the Commission will determine. that th.e.
contention under its new policy sb.ould have been admi.tted to the proceedi~g, thus there has to be considerable additional
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25 28 evidentiary hearing, that problem can be, if not obviated, at least reduced if the Commission from time to time indicates to the boards and it can do th.is without a change in regulation -- that this particular type. of contention should be.
admitted to the. proce.ed.;i..ngs an.d h.e.ard,,.
It 1 s much easier to do tha.t in sort of an informal way than it is to informally tell the boards, You '-'ve.. got to deny a license in these circumstances even though th.is* is: not as yet reflected in a regulatory requirement, I think it is very easy for the Co:rrun.;ts~,li.on to de.al with -- to stay on top of these probl.ems. that deal with. the.
matter of contentions and what is actually he.a.rd dur:j:~g the.
course of a proceeding.
MR. BICKWIT:
Fine.
Well shall we strike the language the Chairman referred to, and then in the. Commission section make clear that it is not -- that it is no longer the policy of this Commission that if all of its regulations are met that it is therefore necessarily the case that a license shall issue?
We'll phrase it more gracefully than that, but,,.....
COMMISSIONER KENNEDY: We\\11 have. to come and di_s,-
cuss the *.d.rrnplications of such a statement, I hope.
r: hope the erudition already expressed from our legal colleagues will be able to enlighten us further~
COMMISSIONER BMDFOR));
I, would s.tp:j:_ke. the. w:o;r:*d§:
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25 29 between II sufficient to and warrant," but I would leave the rest of that or make whatever changes were necessary to bring it in line with Alanis original understanding of it.
CHAIRMAN HENDRIE:
That would also do it for me, Peter.
COMMISSIONER AHEARNE:
And I would like some language in there saying that the licensing board.ts suppose.d to alert,or recommend in its decision--
CHAIRMAN HENDRIE:
It could be a last sentence:
"The Board should make note of such issues.'*'
COMMISSIONER KENNEDY:
Wha.t i.s i.t we re proposing?
MR. BICKWIT:
I think th.ere a;r*e. differences in the Commission on this question.
If you strike e.ve.rythln_g between-11 sufficient,,. and 'qto warrant, 11 from wha.t r hear Commissioner Kennedy saying, he may have. an obje.ction to that.
COMMISSIONER KENNEDY:
We ';*ye 1 i.stened to thirty minutes of discussion which would essentially be ignored by that proposition.
COMMISSIONER BRADFORD; My propos:ition had two steps to it.
One was that, and the other was to, whether by footnote or by some alteration of the remaining language,make it clear we were giving that sentence,Alan Rosenthal's original reading of it, rather than the complete overruling of the proposition that the regulation--
COMMISSIONER KENNEDY:
Something like that, if I
.could see it, might be helpful.
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25 30 I could judge better when I saw it.
CHAIRMAN HENDRIE:
Please try something along that line.
That does sound -- it deals with a particular problem of whether you're throwing out that line of cases.
COMMISSIONER KENNEDY:
So long as the language remains, however, that there is the one other question, which, if the lang.uage we' re going, we needn't worry about.
If the language is to remain, there is still a further question the way the *-sentence* is now,phrcased, 'Where it says, "and to warrant approval;"
two aspects:
First, the compliance with existing regulations may no longer be sufficient to provide for the public health and safety.
That's one thing.
And, on the ooher hand, neither is it sufficient to warrant the issuance of a license.
Those are two different things.
And I don't think that's what was intended.
If it is intended, I'd come back to. an original and earlier point, that me~ns all existing plants meeting existing regulations are not adequately protecting the public health and safety by our own statem~nt.
And I'm not sure that that's what we want -- well, I don't know, do we want to say that?
COMMISSIONER*BRADFORID:
That's the language I'm
.. proposing to take. out.
COMMISSIONER KENNEDY:
Okay.
COMMISSIONER GILINSKY:
I don't think it carries
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25 31 that implication with it. But, so far as I'm concerned, it could go out.
MR. BICKWIT:
I don't either.
COMMISSIONER KENNEDY:
There's an old statement about it is, after all, in the eye of the reader.
CHAIRMAN HENDRIE:
I think there is this difficulty as it stands, but I think the later suggestion for redrafting here deals* reasonably with it.
MR. BICKWIT:
We can redraft it.
CHAIRMAN HENDRIE:
And then down at the end of this paragraph, we'd want some sentence that the board should make special note of such issues -- the )::>_o~r_q.s in their decisions.
Okay.
Onward.
MR. LAZO:
Mr. Chairman, may I ask Len first before we go on:
The sentence at the end of page three_that ends on.the top of page four is troubling me a little bit, and I wonder if there's a missing word: there.
MR. BICKWIT:
There-:+/-s~--,~Between "impiicitions" and "those," the word "for" is missing.
MR. LAZO:
Yes.
All right.
Thanks.
CHAIRMAN.HENDRIE:
That converts it to a sentence.
MR. SHAPAR:
What.do/yiou mean when you're saying to regulatory policies, are you referring to Staff guides or
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formal Commission statements of pol~~y?
MR. BICKWIT:
The whole shooting match.
MR. SHAPAR:
Everything?
CHAIRMAN HENDRIE:
I think so, don't you?
MR. ROSENTHAL:
I also take it there was no intended implication here that every change a regulation 32 might have the -- would necessarily have the effect of requirin the rejection of-the application-ior further proceedings on remand.
The change in regula-ti0ns, -I.,assume, come in various shapes and sizes. with differtng implications in terms of whethe the issuance of the license should be further held up.
CHAIRMAN HENDRIE:
Just so.
COMMISSIONER GILINSKY:
Can we add something like*
any further change --
COMMISSIONER AHEARNE:
To stress.the substantial aspect of the changes, I would agree with that.
MR. OSTRACH:
"In important respects."
MR. BICKWIT:
On page five COMMISSIONER AHEARNE:
You have used two different forms for the review of the Appeal Board.
That is,_yo':1 specified in one case when a stay motion is filed, and in the other case where a stay motion is not filed.
Why didn't you just put it all together?- Beaause you're basically asking the Appeal Board to review rapidly whether or not a stay should be imposed; independent of whether there is a ****
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25 33 MR. BICKWIT:
We impose.some time period.
COMMISSIONER AHEARNE:
The 60 days, though, is goin to be independent of whether a stay is filed, isn't it?
MR. BICKWIT:
I think we could co~lapse those two sentences.
MR. SHAPAR:
I think we define stay, isn't that the answer to the Commissioners' question?
I mean, for the purposes of this document, a stay means beyond the stipulated period.
MR. BICKWIT:
Is that the answer to the Cornrnissione s' question?
COMMISSIONER AHEARNE:
Not really, because I though the issue was you've got 60 days, the Appeal Board is supposed to make its review and pass on, independent of whether or not the stay motion is filed, !fa stay motion is filed, then it does one-thing.
If the stay is warranted, it still has to have MRo BICKWIT:
I think we can collapse the two sentences, if that makes you feel better.
COMMISSIONER AHEARNE:
I was just ques~ioning.
COMMISSIONER KENNEDY:
I have a question which I think is probably related to this. It says that:
"If no stay papers are filed, the Appeal Board shall, within the same time period (or earlier if possible)"-- which is the 60 days -- "analyze the
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25 34 record and the decision below on its own motion and decide whether a stay is warranted.
It shall not, however, decide that a stay is warranted without giving the affected parties an opportunity to be heard."
Once it decides that the parties deserve to be heard, is it not automatically staying the matter until the hearing is completed?
MR. ROSENTHAL.:
-No-,,only -to -be heard on the questio of whether a stay is warranted.
Under the present s*i tuation, the Appeal Board will not consider staying the Licensing Board decision unless an application for a stay is filed by one of the parties.
Under this procedure, in all cases, whether a stay application is filed or not, the Appeal Board will look at the question as to whether a stay is warranted.
If, in a case in which no stay application has been filed, the Appeal Board considers that there may be warrant nonetheless entering:the stay, before that stay is entered the parties would be given an opportunity to be heard, and that is on the question of a stay, and that is simply. a matter of fundamental due process.
COMMISSIONER KENNEDY:
I'm only asking if all of th.at occurs.. within the previously stated 60 days.
And, if not Oh, it is? All of that must occur and that hearing occur withi that 60 day period?
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25 35 MR. BICKWIT:
That's right.
COMMISSIONER KENNEDY:
That's what I wanted to be sure of.
CHAIRMAN HENDRrE:
Unless you advance to the top of page six where you say:
"If the Appeal Board is unable, within a 60-day period to" --
COMMISSIONER.KENNEDY:
That's a different question.
MR. ROSENTHAL:
.The :answer,to,your question, Commissioner, is yes, the Appeal Board will move with dispatch.
And I can tell you that on *: a, stay application, the Appeal Board has no problem at all about directing the parties to appear on six, eight or 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> notice before it.
So we have no doubt that we can accomplish that within the period indicate.
COMMISSIONER KENNEDY:
Fine.
MR. SHAPAR:
I reaa.it the same* way, and I have no trouble with the formulation.
But as I recall the previous Commission dis.c~ssion, the way I understood it was that there wmll.ld not be an Appeal Board decision, there would be an Appeal Board recommendation to the Commission, and the Commission would decide it based on the Appeal Board,recommendation.
MR. BICKWIT:
I understood.it that way also.
COMMISS.IONER KENNEDY:
That I s page six.
MR. SHAPAR: _ You're talking about decisions/ though in some of this.*
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25 MR. BICKWIT:
I understood it that way.
It just struck me as making no essential difference.
There's no essential difference between a recommendation and a decision which must be reviewed.
MR. SHAPAR:
And I have no problem.
I just wanted to bring it to your attention that you were talking the last time about a recommendation rather than a decision.
CHAIRMAN HENDRIE:
Since it is reviewable, I agree, I have no problem with it.
MR. BICKWIT:
It's just easier to draft that way.
On page five, if we are all on that page, we have said safety or environmental issues.in each case, except with respect to item one toward the bottom of page five, and we woul
\\
insert *- '"or environmental".after "safety."
COMMISSIONER GILINSKY:
Where is that?
MR. BICKWIT:
About two-thirds of the way down, the words:
"create novel safety issues" are found.
And we feel that ought to say "safety*or environmental issues."
That is simply conforming that to the posture of the rest of the statement.
MR. SHAPAR:
I guess the s.ignificance of this paragraph is that beyond the standard reasons for granting a
.stay., whi.ch,.are in the regulationsr the Appeal BJard recommendati n, these,*two** additiona.l*,ccriteria~ wi11-be weighed on the stay matte *
-e
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MR. BICKWI.T:
That's exactly right.
The rules do
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25 37 provide that you have a public interest criterion.
- However, without making these changes, we feel the Boards might be --
the Appeal Board might be hemmed in by previous interpretations of the Virginia Petroleum Jobbers case and the rules accomodati g it.
COMMISSIONER BRADFORD:
I agree with your change, but let me just ask if you can name off the top of your head a novel environmental issue that arises from Three Mile Island.
MR. BICKWIT:
Citing low level regulation releases whether the Commi.ssion would find those were Three Mile Island issues.
MR. SHAPAR:
Psychological injury.?
COMMISSIONER KENNEDY:
Is that environmental or.is.that public health?
MR. SHAPAR:
It could be environmental.
COMMISSIONER KENNEDY:
Psychological harm to people is environmental, as contrasted with public health?
MR. SHAPAR:
Could be.
MR. BICKWIT:
Public health issues are environmenta issues within the meaning~of NEPA.
COMMISSIONER BRADFORD:* But also safety issues?
COMMISSIONER KENNEDY:
Yes.
MR. SHAPAR:
It' s not a very cle*ar 1 ine in the law, but you'* 11 have the pleasure of being able to deal with it.
.MR. BICKWIT:
Can we move to page six?
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25 38 CHAIRMAN HENDRIE:
Please do.
MR. BICKWIT:
I just want a flag at the bottom of the paragraph carrying over from page five, the last sentence of th.at paragraph.
It does skew matters in a way that may not have been clear from the discussion of last week providing that the Appeal Board will conduct its normal review while the Commission is considering whether to stay the matter.
We think that's good policy but want to flag it for your considera tion.
MR. ROSENTHAL:
It says unless otherwise ordered the Commission retains full control to direct that a different course be pursued.
CHAIRMAN HENDRIE:
I think that was clearly the direction we were set upon the last time we discussed. these various options.
I'm g.lad to see you've got it in the draft or somebody got it in the draft.
Onward.
MR. BICKWIT:
The1mext sentence, I simply want to point out that this is Howard's point, ***the point that Howard raised at the last session, that the Commission does have the right to s.tep in at any point and gral:l. an iss.ue, even before a decision is reached on that issue at the Licensing Board stage.
COMMISSIONER BRADFORD:
What does the last sentence on page six mean?
MR. BICKWIT:
That we are not providing a right to
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25 39 file new pleadings after the pleading with respect to a stay has been filed at the Appeal Board level.
You make your case to the Appeal* Board and t..1-ie.. Commission at the Appeal Board lev 1.-
COMMISSIONER BRADFORD:
Well, let's see.
Supposing, though,*. that a party -- or the context in which a party could now take an issue to the Commission while it-.was ostensibly pend+/-n~
at the Appeal Board level.
Say they felt that Alan Rosenthal had demonstrated a conscionable bi.as toward them ****
MR. ROSENTHAL:
- we**re only' biased -against the Staff.
COMMISSIONER BRADFORD:
All right.
Well let's say the Staff felt that.
MR. BICKWIT:
The judgment is made here that in effect what you have is an Appeal Board recommendation to the Commission.
In light of that, it seems reasonable to provide the parties one shot in filing their particular proposals with respect to what the final decision ought to be.
If the Appeal Board differs with that decision, they have stated what their position is and the Commission can then decide the issue.
We could provide an additional filing; our view was that it was not necessary.
COMMISSIONER BRADFORD:
I'm not urging that an
_add,ition.al filing.o.£ the type be made, I just wouldn't want to cut off any filings of a somewhat different sort that a party might normally be able to make with the Commission on a matter ***
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25 40 MR. BICKWIT:
It was not our intention to do that.
We are dealing only with.this novel stay situation.
COMMISSIONER AHEARNE:
You mean they'd still have no ;:right to file pleadings with respect to the stay.
MR. BICKWIT:
That's right.
COMMISSIONER BRADFORD:
Why don't you add something to that effect?
COMMISSIONER KENNEDY:
What was that?
COMMISSIONER -BRADFORD:
I would.** suggest they add a couple of words to make it clear in here that they weren't eliminating filings that otherwise would be made.
CHAIRMAN HENDRIE:
.So it would be pleadings with espeQt inparticuJ2ar*to.the:.* Appeal Board decision that had then come before the Commission, and that would leave all other permissible direct pleadings to the Commission free to come.
MR. BICKWIT:
Page seven presents the issue of what time period should the Commission accord to itself in making a decision on the stay question and what should be the consequences of,its failure to comply*>1with that time period.
I can do no more than to read the two alternatives that we put before you.
On the one hand, we say:
- "It.is expected that the Commission will issue a,dee is.ion.in each case within 20 days of receipt of the Appeal Board's decision.
If it does not act within that time and if the Appeal Board has not stayed
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25 the Licensing Board's decision, then the license or permit shall be issued in accordance with the initial decision.
11 The alternative would be to simply provide that:
"It is expected that the Commission will issue a decision within 20 days of-the Appeal Board's decision.
11 COMMISSIONER GILINSKY:
Why don't you just put brackets on the second sentence?
MR. BICKWIT:
That's very perceptive.
CHAIRMAN HENDRIE:
Let's see.
We were divided on this question before and counsel has provided us with two 41 versions of it.
Why don't we argue it briefly and see whether the majority --
COMMISSIONER KENNEDY:
I would like to add a third version.
CHAIRMAN HENDRIE:
All right.
Well we can always
-- even after we see where the general sentiment lies, we can certainly talk about particular words in changing that.
What's the third one?
COMMISSIONER KENNEDY:
I would have_ the first sentence as it is at the top of the page, and then I would substitute for the remainder:
"If it does not act finally within that time, it will state the reason for its further
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25 consideration and indicate the time it anticipates will be required to reach its decision. i. In such an event, if the Appeal Board has not stayed the 42 Licensing Board's decision, the initial decision will be considered stayed pending the Commission's final decision."
All.I'm trying to do here is say we are either going to act affirmatively or state why not and try to give l
some estimate then when we.will,.which,.it,s.eems to me, is consistent with the view stat~d on page three which I recall for you.when we said "because prior notice and comment would further delay adjudicatory decisions being rendered and from being addressed by the Commission and so would be contrary to the public interest."
Now the fact that things are being delayed is, we have alread asserted, not consistent with the public interes
- And I'm suggesting here we then ought to indicate what we plan. to do, why we' re holding it up,_ and th~n also indicate our clear understarlding that if we do not, what we have done, whatever we like to call it, what we have done has stayed the decision, that's all.
I'm just trying to call these spades what they are.
CHAIRMAN HENDRIE:
Read it once again.
COMMISSIONER KENNEDY:
"If it does not act finally within that time, it will state the reason
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25 43 for its further consideration and indicate the time it anticipates will be required to reach its decision.
In such an event, if the Appeal Board has not stayed the Licensing Board's decision, the initial decision will be considered stayed.
pending the Commission's final decision."
COMMISSIONER GILINSKY:
If I understand it correctly, it's basically a commitment to explain the reasons for not having decided the case in 20 days.
COMMISSIONER KENNEDY:
Yes.
CHAIRMAN HENDRIE:
Or having decided the stay --
COMMISSIONER KENNEDY:
And noting that if we haven t, in fact, what w.e are doing is staying the decision.
Whatever we call it, that's what we're doing.
COMMISSIONER BRADFORD:
But no license would be issued until the --
COMMISSIONER KENNEDY:
The decision is stayed.
COMMISSIONER GILINSKY:
I think it is okay.
I would like to see it in writing.
COMMISSIONER BRADFORD:
I think it is okay, too.
If the decision of the Appeal Board had been not to issue the license, presumably the result of that would not be the iss.uanc of a li.cense.
COMMISSIONER KENNEDY:
No.
MR. OSTRACH:
Under the Commission requirements.
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25 44 COMMISSIONER KENNEDY:
Not unless the Commission itself elected to do so.
All it does is call for affirmative action on the part of the Commission.
In other words, to avoid the problem we mentioned earlier about inaction turning out to be action.
It calls upon us to act in some way, even to state that we are not going to.
CHAIRMAN HENDRIE:
It sounds like it might be a selling proposition, Dick.
If I can't get you all to go with bracket one, why I'll certainly support yoU:r pIJoposal in preference to bracket two.
COMMISSIONER KENNEDY:
That sentence remains.
CHAIRMAN HENDRIE:
I'm talking about the whole bracket~
I prefer to put fire under the Commission and make it take an action in 20 days.
If the action is that we're not ready to issue, to say that.
But there seems to be already a majority sentiment to accept.that. It does not result in any issuance of a license in the absence of positive Commission action but puts some language in that puts a little heavier burden on us to propel us to either say yes or no or to say why we are having trouble saying yes or*no.
COMMISSIONER AHEARNE:
I would have been silent on the issue.
C0MMI'SSIONER -BRADFORD:
You would have gone with the second bracket?
COMMISSIONER AHEARNE:
With neither.
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25 COMMISSIONER BRADFORD:
You would have left the paragraph out altogether?
COMMISSIONER AHEARNE:
Yes.
45 COMMISSIONER GILINSKY:
I guess I probably would have, too.
I think it's perfectly reasonable that we should explain --
CHAIRMAN HENDRIE:
-- what we propose to do and how we hope to be able to do it?
COMMISSIONER KENNEDY:
I just submit I feel if we don't we will relatively soon be asked to do so.
I can't imagine an agency which is in the business of licensing just failing to do so over any period of time,without stating its reasons, getting away with 'it. 1ou know.
COMMISSIONER AHEARNE:
I think that's certainly..
true,
- but I think the first few times around -- I feel uneasy about making the k;Lnd of commitment that at least gives the appearance that we think these issues are going to be readily resolved and rapidly*., There are some of those major _policy issues that I would suspect we will be trying to think through*
with some great care.
COMMISSIONER KENNEDY:
If that's the case, that we feel we can't come to grips with it, then I think the public
-needs,to know that *.
. COMMISSIONER AHEARNE:
If we had had a standard of, for example, rulemakings would finish by X time, if we were to
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46 meet all these deadlines, then I would feel this would be just consistent with our practice.
I'm a little uneasy about being so efficient.
COMMISSIONER BRADFORD:
I see your point.
It might be better to say the Commission will seek to issue a decision 6 -than to say that it is expected, you're probably quite right.
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25 I think the first couple of ones you cannot reasonably expect ***
COMMISSIONER KENNEDY:
I don't have any problem with that so long as the other thought is contained in there.
CHAIRMAN HENDRIE:
Will seek to issue?
Start it, "The Commission will seek to issue?"
stay.
to follow.
COMMISSIONER GILINSKY:
This is a decision on the CHAIRMAN HENDRIE:
This is a decision on the stay.
Do the.-ne:xt>.draft that way, with Dick's sentence The balance of -the page.
MR. BICKWIT:
The balance of the page Eresents the issue we raised earlier in this meeting, which is what do you want to do with respect to uncontested cases and uncontes:ted issues in contested cases.
COMMISSIONER AHEARNE:
I don't see why it's only the uncontested issue for the contested case.
MR. BICKWIT:
Because that's the situation in Nor~h Anna, it's a contested case.
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25 47 COMMISSIONER AHEARNE:
No, North Anna is separate entirely because you've already gone through a decision.
MR. BICKWIT:
It is not an uncontested case, it's a contested case and you have to make a decision how you are going to deal with that situation.
MR. ROSENTHAL:
This language, if I may say so, I think is very fuzzy.
From the conversation I had with Mr. Ostrach after I got a draft of this, I understood that what is being referred to when they talk about uncontested operating license proceedings is the Staff review, and that is conducted in an instance where there is no adjudicatory proceeding.
Now I doi'l' t think the term "uncontested operating license proceeding" is one that would normally be equated with Staff review *. And for that reason, I took the liberty of drafting -- I did,not have time to provide it to the General Counsel's office before this came -- the General Counsel's paper came to you -- of drafting an alteration of the first sentence of the paragraph that begins on the bottom of page seven.
CHAIRMAN HENDRIE:
Give it a try.
MR. ROSENTHAL:
It reads:
"The above set of interim procedures apply only to matters considered in adjudicatory proceedings involving nuclear power reactors and so do not govern the issuance of an operating license
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25 48 in circumstances where either (1), no adjudicatory proceeding has been conducted on the merits of the application for a license or, (2), some of the matters considered in the course of the Staff review of the operating license application neither have been raised before nor determined by the Appeal Board in the adjudicatory proceeding which was conducted in the application."
Now this was merely intended -- I might say it is not a substantive alteration of the proposal of the General Counsel, it was merely intended to clarify the.language. 'ii
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What the General Counsel has in mind here is if there is no proceeding at all, no one has petitioned for inter-vention or the petitions for intervention are denied, and so the Staff is making the -- as it now stands, the Staff is the one that determines whether the license issues or not -- that these procedures would not apply in that circumstance, but the Commission would, as it says in the next sentence:
"Any such licenses will be issued only after action of the Commission itself."
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25 49 General Counsel would also apply that to the case in which an operating license proceeding, an adjudicatory proceeding is conducted but it is confined to issues (a) and (b).
And as to all other matters, the Staff under existing procedures is, in the vernacular, calling the shots.
And General Counsel's proposal would be that in those cases as well, the license would not issue without Commission action.
COMMISSIONER GILINSKY:
Did YQJ,l, _expect we would issue a separate statement c:overing those.cases, Len?
MR. BICKWIT:
It seems to me you've got to say some-thing.
COMMISSIONER GILINSKY:
Why don't we say we will handle those cases separately and they will be the subject of--
MR. BICKWIT:
You can do that.
We saw no reason to do *that in a separate statement.
CHAIRMAN HENDRIE:, Alan, make it clear the case of an operating license case where there is an adjudicatory proceeding going on there will be issues iden-tified in that proceeding.
Now what you're talking about here are all other -- are issues that are not so identified as being adjudicated or are not picked up by the Appeals Board on its own,motion, MR. ROSENTHAL:
This would obviously CHAIRMAN HENDRIE:
-- but not to the whole case.
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25
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50 MR. ROSENTHAL:
No.
This would obviously apply to all operating license proceeding because there isn't an operat-ing license proceeding, there never has been one, there never will be one, which covers every matter that the Staff has considered in the course of its re\\tl.ew.
The proceeding will only again cover those issues which have been put into contro-versy by a party, and those issues, if any, which either the Licensing Board or the Appeal Board decided to raise on its own initiative, and that obviously can't cover the waterfront.
So what the General Counsel, it_seems to me, is saying here is that in every operating license proceeding the license does not issue without the express Commission action and that with respect to the operating license in instances where there is an adjudicatory hearin~, the Commission would presumably be focusing presumably upon those matters that were in the Staff review that were not adjudicated.
Am I right on that?
MR. BICKWIT:
Rather than go through your language again, are you intending.to cover with this statement the situation where the Appeal Board is taking issue (a} and (b) in your example?
MR. ROSENTHAL:
Well, my redraft, Len, was intended to be nothing more than what seemed to me to be a more felicitous statement on what I assumed you intended.
MR. BICKWIT:
What I intended was that the answer 1
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25 51 was yes to my question, that in the situation where the issues were divided up, the Appeal Board taking (a) and (b) and the Staff reserving to itself all the other issues, that the Com-mission would get a crack under this statement at issues (a) and (b) and the other issues through whatever mechanism we provide.
MR. ROSENTHAL:
These procedures would only apply --
the ones that are set forth in this paper would only apply if those issues were actually adjudicated in the operating license proceeding, either as the result of a contention or as a re-sult of a sui sponti raising of the issue by the particular board.
MR. BICKWIT:
Yes, except with respect to North Anna, in which case issues (a) and (b) will not come up.
COMMISSIONER BRADFORD:
What's going to happen then if there is something kicking around in the case that the Commission finds troublesome?
MR. BICKWIT:
That's what you've got to decide.
That is the issue that I think you have to focus on.
In the situation where you've got an uncontested case or a case in-valving uncontested issues, how is the what procedure are you going to use?
We **just said you I re not going to use this proc~dure.
And the options are similar to the ones that you have just considered with respect to the timing of your own action under this paper.
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25 52 i
COMMISSIONER AHEARNE:
Except in that case you have no ex oarte --
MR. BICKWIT:
That's right.
It'*s a lot easier.
But you have to decide, when the Staff comes in and says we want to issue this.license, what is the Commissionts action to be, if the Commission can provide that it.shall not be issued unless it takes formal action and it can set some time limits on it, or it can go the route that you've gone with respect to startup of,,B&W.plants'"which.,wer.e closed down as a result of your own orders.
CHAIRMAN HENDRIE:
Well, I think the language just ought to say that in such cases, i.e., the ones we are now trying to deal with, the Commission will review Staff recom-mendations for issuance of a license and will make the final decision on issuance.
MR. BICKWIT:
Do you want to set a time limit?
CHAIRMAN HENDRIE:
Well, I'm inclined to--
I'm a
-little less inclined to feel the need to::want a time limit here than in the previous case; that is, where the case has come down through the adjudicatory system of the Commission.
In that case the material -- the record and the material that comes down to the Commission *has had a certain discipline im-
.posed upon it :1:>.y the Licensing Board and by the Appeals Board and I would trust is reasonably well organized at* the time we see it. And it would seem to me the Commission could, fairly
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25 53 expeditiously,decide whether there still are issues in the case that require that it be held while they are thrashed out or whether the case can go ahead.
And I suppose it would depend on whether it were a CP or an OL and various other kinds of things.
For this other category where the Staff says well, we've studied whatever plant it is.
There has been no pro-ceeding so we are only talking about OLs, and probably not very
.many of those, or no proceeding.. _at all.
The Staff comes and their case may be indeed well disciplined and organized, or it may not be well disciplined and organized.
And it may be easier for the Commission to deal with the issues, or it may be harder for the Commission to deal with the issues.
And I think here I'd be less likely to build into this statement language that we would seek to act within 20 days or something like that.
But I would think the procedure we would use would be the kind we have had before where we don't have an ex parte bar, we can simply sit down with the Staff and hear what they think at a particular point, and discuss it with them, argue with them, with ourselves, and whoever else is handy, and then see what we want to do, sort of issue by issue.
MR. BICKWIT:
Let me ask the hard question:
Do you have in mind that the Commission would take a vote on the issuance of the license in that circumstance and
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10 11 12 13 14 15 16 17 18 54 that the license would not issue unless the question were voted?
have?
CHAIRMAN HENDRIE:
Yes.
MR. BICKWIT:
That wasn't hard.
COMMISSIONER BRADFORD:
Let me try my hard question.
COMMISSIONER KENNEDY:
What other options does it MR. BICKWIT:
The other option was the one that you've used in the case of -- I have to point this out -- in the case of the -B&W plants and,restart,.,,It, did,not take a formal Commission vote to restart those plants.
COMMISSIONER KENNEDY:
As a practical matter, the Staff came before the Commission and the Commission has certainly had the opportunity to do just that. It simply elected not to and thereby in fact acq~iesced in the Staff pro-posal.
It seems to me that --
CHAIRMAN HENDRIE:
Furthermore, Len, we may go through--
I don't really think it is a difference.
In the l9
- B&W case-the first ones to come back with the proposition, 20 "Okay, we' ve done the things you've said we ought to do, now 21 22 23 24 how about it?"
We met and we voted on it.
As you went on down the line where the presentations c:oming up.were saying, "Okay, now Plant X has gotten into Ace-Federal Reporters, Inc.
shape as follows," it began to ~ook very similar and we then went over and the Staff checked on the Commissionenit offices.
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7 55 If no Commissioner wanted to hear it and it lopked all right to him, why then it went.
Now what we've got here is clearly an interim pro-cedure and some time down the line after we've heard the first few,,or however many, we can very well reach the same point in this procedure except, since this is a more formal pronounce ment, why we'd have to amend do any amending by way of a 8
further policy statement~
9 We could end up finding, for. ins,tance, that on CPs 10 from about the fourth one on down that they had so much simi-11 lar configuration with regard to the major issues of importance 12 at that stage that it no longer seemed necessary for us to sit 13 here at the table and hear the specifics all again, and take a 14 vote.
15 I really don't see it as that much different, and I 16 think what we have contemplated is saying that the Commission 17 will take action on licenses wh:ere it does require positive 18 action.
And that's pretty clearly the intent.
19 COMMISSIONER BRADFORD:
But I still donlt see how 20 this is going to work on uncontested*issues in a contested case.
21 They're going to all travel up with the same piece of paper.
22 At the end of 20 days we 're going to issue a statement about 23 what we're doing with the contested issues.
Meanwhile, what do 24 we do with the uncontested issues?
What point is there in Ace-Federal Reporters, Inc.
25 issuing something after 20 days on the contested issues if we
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56 are going to be dealing with the uncontested issues for another six months?
CHAIRMAN HENDRIE:
I guess there are two answers.
One of them is--
Maybe we'd prefer then to have the same kind of -- seek like 20 days with regard to the uncontested issues which I could stand but which didn't seem to me as urgent as in the other cases.
The reason that 20 days--
It might very well turn out to be there are other issues.that the Commission wanted to consider in this particular case and they would take longer.
COMMISSIONER BRADFORD:
Part (b) of that question on uncontested issues that come to you now from a Licensing Board, what is the threshold you have to cross in order to review those?
MR. ROSENTHAL:
Are you talking about an operating license proceeding?
COMMISSIONER BRADFORD:
Yes.
MR. ROSENTHAL:
The time --
CHAIRMAN HENDRIE:
Uncontested issues refers to everything in the case except what --
MR. ROSENTHAL:
The Licensing Board again will have addressed matters that have been put in controversy and possi-bly matters which-it has seen fit to raise on its own ini-tiative as it has the power to do under the Rules of Practice.
25 1So we will get a decision that will address certain issues.
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9 10 11 12 57 Some of them may possibly have been raised by the Licensing Board.
All right.
Our responsibility is to review all -- review the Licensing Board's decision on all of the issues which it con-sidered, whether it considered them in response to a conten-tion or whether it considered them on.its own initiative.
In addition to that we are free to raise issues on our own and indeed, in the North Anna proceeding we did pre-cisely that.
The North A:p.na,proceedi.ng was one which--
The operating license proceeding for North Anna was contested before the Licensing Board.
There were intervenors, an inter-venor at least, and there were certain issues raised and they 13 were disposed of.
14 There was no appeal taken to us in that case, so 15 we reviewed it on our own initiative and my recollection is 16 that one of the two issues that we ended up with was one that 17 we *had raised.
- The turbine missile issue, which. we still have 18 before us in that case, was one that had not been raised on 19 the Licensing Board level either by an intervenor or by the 20 Board itself.
We raised it on our own initiative, having 21 plucked it out of this list of floating generic issues that 22 were roaming around.
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So. that's the way we handled those cases.
Now when we get finished with it under these proce-25 dures it goes up to the Commission.
Obviously we would have
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. 58 passed upon certain questions.
We would have had to if there was an operating license adjudicatory proceeding at all.
But then there would be the balance of them.
And I think the question that you have raised, Commissioner Bradford, is a good one.
In every one of these cases, operating license cases, there are going to be what has been referred to here as uncontested issues.
I would have preferred the term "matters that had not been placed in issue and were simply subject to Staff review."
But call them what you will, there will be those issues in those cases and therefore, it seems to me the ques-tion does arise, if you have a 20-day period for examining the matters that we touched upon but there was no period for the balance, then the 20-day period in no operating license case is significant since every operating license case will have these ~atters which the Staff is considering which an Appeal Board has never looked at.
COMMISSIONER BRADFORD:
Because you'd be constrained I guess either by the language you'~e suggesting or by the language in here from looking at issues --
MR. ROSENTHAL:
If. we want to go beyond the matters which the Licensing Board considered, we are constrained to restrict ourselves to matters which seem to us to be of signi-ficance.
COMMISSIONER BRADFORD:
Right.
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10 11 12 13 14 59 MR. ROSENTHAL:
That's the thrust of the Rules of Practice.
COMMISSIONER AHEARNE:
That's fairly broad lati-tude.
MR. ROSENTHAL:
Right.
But as I suggested earlier, there's going to be no case in which, on our own initiative, we are going to touch every single thing that the Staff con-sidered in the course of its review, so I think you can rest assured that there will be a gap of some magnitude between what we look at and between what the Staff has looked at in the course of its customary review of operating license appli-cations.
MR. SHAPAR:
Do you need a separate procedure for these issues?
The Commission has the same sui sponti authority 15 that Alan does, so if you get the case, why do you have to make 16 this dichotomy between contested and uncontested issues, and 17 complicate it?
18 19 20 21 COMMISSIONER BRADFORD:
I was asking two questions.
The answer to the first one. I think is the one Joe suggested and that is we can, at the end of 20 days, say the reason we haven't issued the license yet is because there are other 22 issues in the case.
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25 But I al.so wanted to be sure that the language Alan had suggested, if in fact that's the language we.go with, di,dn' t in any way constrain the Appeal Board's ability to look
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25 60 at matters that hadn't been placed in controversy when the case came to it.
MR. ROSENTHAL:
Again I was merely trying to re-state the General Counsel's proposition, but I didn't under-stand the General Counsel's proposition to have any such res-triction.
MR. BICKWIT:
Clearly it didn't.
.COMMISSIONER KENNEDY:
Nor indeed, I would agree with Commissioner Bradford, should.i,t, but it seems to me what we want is the present situation continued; that is, that within the Rules of Practice you select those issues that you consider appropriate and,significant and then deal with them.
So if the language does that, then CHAIRMAN HENDRIE :
Okay *.
MR. BICKWIT:
- What I would suggest, I would discard your suggestion, Howard, in that if you do that in a situation such as North Anna, once the Commission has passed, if you have another situation like that, once.the Commission has passed on the contested matters, it will not see the uncon-tested matters which may be, in the Commission's view, at the heart of the matter.
MR.,SHAPAR:
Why isn't the.Commission in essentially
,the sartte p_osi tion as the Board?
The Commisssion is free to raise a sui: sponti issue. It has the same authority if not greater authority than the Appeal Board to raise it. And any
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25 61 time the Commission sees an uncontested issue that it doesn't think has had proper treatment and it wants to remand it for a hearing, it can reach down and do it.
CHAIRMAN HENDRIE:
Look, the intent in this policy statement is to indicate the Commission's intention on the so-called uncontested issues in contested cases and on con-tested cases if there are any -- There is one that we will get I guess -- to hear the Staff's, in effect, final proposition on issuance of a license, and discuss it and see whether we agree with that.
If we do we'll take a vote in the Commission and tell the Staff to issue the license if that's what they've recommended, and if not, make what adjustments are necessary.
And I think the policy statement ought to in fact indicate that that is what the Commission will do, just so people won't be in doubt.
We could certainly--
You know, we could not say that but do it, but I think it would be gen~rally more helpful if we indicated that that's what we were going to do.
MR. SHAPAR:
I agree.
Suppose the Staff comes in and says Yes and the Commission, having heard the Staff's presentation, says No.
CHAIRMAN HENDRIE:
Then it doesn't issue.
MR. SHAPAR:
Yes, but when does the licensee or any-body else have the right to be heard on the denial? It has now l
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25 become a contested issue.
He hasn't had his day in court.
MR. BICKWIT:
Does he get it now?
MR. SHAPAR:
Sure he does.
62 MR. BICKWIT:
If the Staff says No, what happens?
MR SHAPAR:
Then it's a contested issue.
I'm simply asking a direct question.
MR. BICKWIT:
It's the same principle.
MR. SHAPAR:
No, it isn't because this won't come about in terms of a disagreement between the Staff.
That should surface and become a contested issue.
The Staff's re-view is on the public record and we say what bothers us, so that thing has never happened, and won't in the real world.
But this is different because you're asking the Staff to come forward and explain its position on uncontested issues.
Now there's no problem if the normal course of events transpires, namely, the Staff is willing to issue the license, it hasn't been contested, and it will, but, you review the Staff's presentation and say No.
The only question I'm asking you, in that kind of a situation, what do you foresee the c~ain of events will be?
How does that matter get litigated?
Will you remand it back and make it part of the full proceeding or not?
And.that's what I see as the main problem between this dichotomy between where youtve_ got a contested case
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. having a parallel track for handling uncontested issues and
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25 63 another track for handling uncontested issues.
COMMISSIONER GILINSKY:
I*d like to ask a procedural question.
Are we in effect scrubbing the second meeting we had scheduled for this morning?
COMMISSIONER AHEARNE:
I don't even know what the second meeting is about.
CHAIRMAN HENDRIE:
It depends on people's schedules.
It seems to me that the matter before us, which deals with trying to get a statement out on what the whole Commission adjudicatory system will do for the nex~ year or so is suffi-ciently important to keep driving on it.
If you have to sacrifice the next meeting why COMMISSIONER KENNEDY:
As a matter of fact, I thought in our recent.statement we indicated we were going to do that. It seems to me it's getting on with the public busi-ness.
It said we had received petitions from applicants in
- a coup1e of -pt.. o'cee*di*ngs *reque:sti,ng issuance of directives on
.the way these.proceedings should be donducted, and we said this was an interim response and we would make a generic
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policy decision.
And.it seems to me-that there can hardly be any-thing more serious before us than that.
COMMISSIONER GILINSKY:
Well, I.. think there 1.s, frankly.
COMMISSIONER KENNEDY:
W~ll, I 1*rn sorry, I do not.
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25 64 Unless somebody can tell me what it is, I certainly do not.
It seems to me that is the heart of the Commission:':s job.
It I s business, and certainly nothing can be more significant to it than that.
It is public health and safety, after all.
CHAIRMAN HENDRIE:
It seems to me that we are quite--
I think I am fairly close to being able to launch the next draft of this statement and I'd like to get to that stage rather than leave the tail end open.
Would you please redraft the bottom of page 7 using Alan's language and then add to it the statement that the Commission. -- statements as suitable along the lines-that *the _
Commission will review Staff recommendations to the effect that a project is ready to have a license issued, or some such language as that, and that license issuance will only be after action of the Commission itself, as we said before.
.MR. ROSENTHAL:
Nlr. Chairman, I have to address the
.due process concern that Howard.raises.
CHAIRMAN HENDRIE:
The question of where one goes if the staff says, Here's a case that's ready to go, coming up this route, and the Commission says, We don't think it's ready to go, and what is the redress there? It seems to me that Commission*action of that kind would be predicated on the belie that some equipment or procedure or other arrangement in the project that in the Commission's view was needed for public
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25 65 safety was not adequately in place and that the license should not issue presumably until it was or until suitable agreements about getting it in place had been executed.
That is it seems to me that the Staff is not going to come up and say the Updike project is now ready for a CP and we're just going to sit here and say No, we don't like the name and that's it, good-by.
So in that case I guess the applicant--
COMMISSIONER KENNEDY:
We will come back to the General Counsel's most -- one of his earliest statements this morning, because it is precisely that kind of question that I thought his statement was addressed to*, is what is it wetre going to do?
Having said all this and all these beautiful words, we have to have some idea of what it is we're going to do.
The public has a right to know.
CHAIRMAN HENDRIE:
In this case, in such a case as I've outlined, I expect the Commission will say that a license ought not to issue until they have put in this piece of equip-ment and the Staff is satisfied with it, or there is an agree-ment to put it in on some schedule, or they institute this procedure.or this further.arrangement with local authorities, or whatever has progressed to a satisfactory stage.
And we would say that and they would get on with it.
_J Now suppose I want to argue the point and say No,
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25 66 this piece of equipment is not necessary, this procedure that you want is not necessary.
Since it's the Commission that's making that decision it seems to me that's the final decision of the agency and if they don't like it they can go to court.
MR. ROSENTHAL:
No.
MR. SHAPAR:
No.
He's entitled to have a hearing on the record.
MR. ROSENTHAL:
A hearing has to be somewhere CHAIRMAN HENDRIE:
Then he can petition for a hear-ing.
MR. BICKWIT:
The Commission is the Staff in this particular situation.
The Commission has the Staff functions and you should follow the precise procedures that you would use if the Staff said no, COMMISSIONER BRADFORD:
If we set up a hearing we won't be functioning as the Staff.
MR. BICKWIT:
No, but if the Staff said No, at the last minute there would be a right to a hearing.
COMMISSIONER AHEARNE:
Do we send it back then to a Licensing Board?
those.
MR. BICKWIT:
We have to-c.reate a Licensing Board.
COMMISSIONER AHEARNE:
Or do we hear it ourselves?
CHAIRMAN HENDRIE:
It seems. to me we could do any of
.MR. SHAPAR:
The main point is as a matter of law,
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- 17 18 19 20 21 22 67 the issue can be litigated.
MR. ROSENTHAL:
Before this agency.
CHAIRMAN HENDRIE:
Well, maybe we ought to go ahead and say --
COMMISSIONER KENNEDY:
It ought to be made very clear here that what we are doing is in no way disturbing that, nor is it intended that we so do.
It should be made very clear here.
MR. SHAPAR:
That's precisely why I suggested a different option five minutes ago which was that you don't have this duplicatory procedure, informal for uncontested issues, but that you monitor the case and if you want an issue you identify it as your own sui sponti issue the same way the Appeal Board does.
CHAIRMAN HENDRIE:
Howard, that's not what the Commission wants to do, for God's sake.
On such things we want the Staff to come in and say We've thought about it, we believe we are ready to issue on the following bases, and have an opportunity to discuss those points with the Staff and decide whether we agree.
To expect us to, in some magical fashion, reach down into the mechanism and pull all of those things up in our 23 direction just isn't what the Board here wants.
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25 what we did in the B&W cases, have the NRR come in when they think they're ready to go and say We think it is ready to go,
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25 68 Commission, and here are the points, and here's why.
And then we'll agree or we'll disagree, or agree and disagree in part.
I just don't find in your suggestion any way for that to occur except for me to issue a letter to the Staff saying Well, I've been watching a case, Staff, and I want you to come up and do the following.
If that's going to be the thing I do in every case I think we could just as well write it down here and let every-body know now that that's going to be the case.
MR. SHAPAR:
You understand you're free to talk to the Staff while the case is going on.
COMMISSIONER GILINSKY:
Let me understand* Howard's proposal a little better.
MR. SHAPAR:
If it will advance things I'll be glad to withdraw it.
MR. BICKWIT:
I certainly think it would.
MR. SHAPAR:
I was looking not in your direction but in that direction.
MR. BICKWIT: 'Although your suggestion is included, your suggestion is included in the statement.
COMMISSIONER GILINSKY:
You're suggesting we limit ourselves to specific issues that we ask to be brought up here?
MR. SHAPAR:
No, not exactly that.
What troubles me about this is that if you follow this procedure the end of
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10 11 12 69 the line may be that you disagree with the Staff, which is fine, and you say you want another piece of equipment over and above what the Staff has required.
Now under the law as I understand it, and I don't think any lawyer at this table disagrees, if the applicant disagrees he is entitled as a matter of right to a hearing on the record.
Okay?
That's going to hold the whole--
If that does happen, and maybe, you know, it's a Class IX situation--
Perhaps I should use some other terminology.
If that does happen, then the delay is inevitable and the delay is substantial.
Now I'm trying to find a way of 13 precluding that worst-case situation, and one way of doing it 14 15 16 18 19 is to act essentially the way the Appeal Board acts, plus the fact if the issues are uncontested, as I view your present ex parte rule, you can be talking to the Staff all along on matters that are not substantive matters in issue.
So you can get briefings from the Staff in the middle of a case, and another month later as many briefings as you 20 want.
And if you're not satisfied with all those briefings 21 and you see an issue that the Appeal Board is missing and the 22 Staff is missing and the Hearing Board is missing, then set 23 it down as an issue sui sponti and let the responsible Boards 24 Ace-Federal Reporters, Inc.
25 deal. with it before the process reaches the end, and you're not setting up the dichotomy of two different approaches, an
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25 70 on-the-record approach and an informal approach.
CHAIRMAN HENDRIE:
Look, take the case of Salem which is ready damn near to go right now.
MR. SHAPAR:
That doesn't apply here because--
I would apply it just the way you want to go on Salem because there's no hearing at all.
I'm only talking about a situation where you've got a hearing.
CHAIRMAN HENDRIE:
I see.
But it still requires this process of the Commission getting interim briefings during the progress of the case to try to identify all of those things which ultimately it would have wanted to deal with specially, and then to get those into the existing into the on-going hearing on that case.
And it just seems to me that the sense of the Commission's desire for involvement was Yes, there may indeed be and there certainly will be briefings on generic areas as we go down the line, but the involvement in licensing was rather to take'a look at the case when it had matured just about to the issuance stage and see if we believed that every-thing that should be included was included.
And I find it difficult to --
COMMISSIONER GILINSKY:
Something that Howard said appeals to me which is that in this phase that's covered by the proposed statement the Commission ought to be keeping a
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25 71 closer watch on the licensing process in general.
We've written into the statement that none of us ad-mits our ability to reach down and take up issues just as --
you know, ability we had before.
And I think that we should be paying much closer attention to the process quite apart from having set up procedures for the Appeal Board to monitor decisions and then convey to us its recommendations on stays.
And I wonder whether we couldn't follow Howard's approach, at least to the extent feasible; that is, it wouldn't rule out CHAIR.MAL~ HENDRIE:
Actually, it wouldn't require any change here but you still have to decide what you're going to do with uncontested issues, whether you want a chance to review them with the Staff or whether you -- that is, whether you want the Staff in effect to bring.them to you in summary form at some point, or whether you want to leave it to the Commission to reach in and identify them itself, but keeping close track of the proceedings.
I dontt think it is in any way--
You know, the ability to do that or the proposition that we do that, I dontt think is affected in fact by the language here.
COMMISSIONER GILINSKY:
No, it means assigning a certain number of persons to engage in activities.
COMMISSIONER AHEARNE:
I thought that had been al-ready the understanding, going back several meetings before.
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72 I thought we had agreed that we were going to have to monitor all those proceedings.
COMMISSIONER GILINSKY:
Is that the case in the General Counsel's office?
MR. BICKWIT:
Do we monitor now?
We don't, except 6
in particular proceedings.
7-I thought_ Howard's suggestion that we do so was a,
a good one, and that we should try to do that.
9 The question raised by the Cb,p.:irman is if something 10 slips through our fingers, which it just might, do-you want 11 the final look at what the Staff has done?
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I thought the question is when does the Staff give that final look?
MR. BICKWIT:
That question--
I wo~ld suggest they ought to give it to you after you have dealt with the Appeal I
Board situation.
MR. ROSENTHAL:
I don't follow this.
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- the proceeding, if there*is an operating licen~e proceeding 19 at all, everyone will know what matters have been placed in 20 21 22 controversy.
They'll knowfwhat are the ones that are going to go through the adjudicatory process.
Now to be sure in a particular case there may be 23 additional issues considered by the Board on its own initiative, 24 the Licensing Board or an Appeal Board.
But the shape of the Ace-Federal Reporters,* 1 nc.
25 proceeding in most instances is pretty well determined early on.
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25 73 Now if you've got an operating license proceeding that is likely to go for a year, a year and a half or whatever, through the Licensing Board and the appellate stages, now what 1s wrong with the Commission, during that period of time, being briefed by the Staff on matters that have not been placed in controversy, because otherwise if the Commission is going to take the first look at the so-called uncontested issues after the Appeal Board decision, then you might as well scrap the whole 20 days again as applies to operating license proceedings because in all of those proceedings you're going to have the
-Commission, over a period that is undoubtedly going to extend far beyond 20 days, sitting down with the Staff or whatever, discussing with them the aspects of the review which were not encompassed by the very limited number of issues that got
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considered in the adjudicatory proceeding.
COMMISSIONER KENNEDY:
Putting things sequentially which could*be <done 'in p:arallel-; it seems to me you I re right.
MR. BICKWIT:
You raised the question*to me I though.
MR. ROSENTHAL:
Well, wherever.
COMMISSIONER AHEARNE:
Can I ask a question in clarification of what he's saying?
Let's suppose there's. an issue, Alan, that is not placed in controversy, and so the Staff reviews it with us and at some stage either the Licensing Board or the Appeal Board places it in controversy.
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25 Is there any legal problem now with us having addressed directly the Staff on that issue?
MR. ROSENTHAL:
No, I don't think so.
General Couns 1 might have a different view.
I don't think so, so long as your conversations with the Staff were prior to it being made an issue.
I think once it became an issue and then was going to come up to you through the adjudicatory chain you would have to terminate, because you have discussions with the STaff I assume about particular reactors before they get into adju-dication all the time.
COMMISSIONER AHEARNE:
So there's no problem with isolating out not the fact that that reactor is now going into a proceeding but the specific issue with regard to that reactor MR. ROSENTHAL:
I don't think you would want to talk to the Staff before you determine whether there was going to be a contest, an adjudicatory proceeding and if so, what were the matters being put in controversy, and I don't think you would want to discuss with the Staff any of the matters that were in controversy.
I don't think that there's a problem about your discussing with the Staff matter X and it later turns out that an Appeal Board or a Licensing Board raises X on its own ini-tiative, just so long as that discussion took place before.it became an adjudicatory matter.
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25 75 MR. BICKWIT:
I agree, I don't think there's a probl~m.
But -- and this is the only "but" which accounts for our sequential suggestion rather than moving in parallel, is that you're going to get into cumbersome situations. If you have the Staff in here in a contested case and you're talking about uncontested issues, I can see situations where they will just slop over into the contested matter and it's going to make for some difficulties.
We will have to be sitting here with some difficul-ties.
CHAIRMAN HENDRIE:
Well, but the way this thing lays out, the Licensing Board comes to its initial decision and there then ensues a two-month period in which the Appeal Board is grinding on the case, and then get 20 days beyond that in which the Commission hopes to be able to say something.
Maybe this will take more time is what we say, but we say something.
So you 1*ve got 80 days after the initial decision of the Licensing Board so that the -- You know, to some extent the dust and fury of the controversy is at the lower level-but would have died a little bit, and you have three months, blaste near, to have a series of discussions with the STaff on the so-called uncontested items to see what we think of those.
_ So that as you come toward the end of this period it seems to me you might very well be in shape to know what
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25 76 you thought about the uncontested issues, and you're now at the 60-day point with the Appeal Board's view on contested ones.
And you might indeed be able to draw rapidly then to a con-clusion, at least I would hope we would, on most cases.
MR. BICKWIT:
Agreed.
I simply don't think you ought to obligate yourself to deal with these prior to the Appeal Board decision *. I think it would be difficult to--
There will be some situations where it will be difficult and you shouldn't set up a procedure where in all cases you'll be going in parallel, recognizing that in some cases you'll have to go sequentially.
COMMISSIONER AHEARNE:
But you're not foreclosing it because there ts a lot of interactions about the points that both Howard and Alan raise; since you are inclined to step into the middle of a year and a half proceeding, it would be beneficial.
'CHAIRMAN HENDRIE: 'Well, a while ago I. sketched out some comments about what I thought the redrafting at the bottom of page 7 and the top of page 8
- ought to look like, and I guess I haven't changed my mind.
In view of the comments about rights of parties over here I guess I might add the policy statement could note that the rights of.applicants under whatever that provision of the law is are not affected by this, an oblique way of saying if you don't like what.we. decide in any particular case you've
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77 got a right to. a hearin.g.
COMMISSIONER BRADFORD:
Nothing in this policy state ment repeals the Constitution.
CHAIRMAN HENDRIE:
I'm prepared to vote for that.
COMMISSIONER BRADFORD:
The rest of it I think is going to be fine as it is.
paragraph written out.
CHAIRMAN HENDRIE:
I would like to see this last I think we would all like to see 9 II the redraft.
There are several pl.aces. where. lan,guage is 10 II changed, and I don't propose to ask you right now to come to a 11 II final decision on it because that will postpone things for yet 12 II another hour while we go back and sort these things out.
13 But we'll see the language and we may want to argue 14 II about it again.
15 II What I propose is to tell the General Counsel to re-16 11 draft it as rapidly as you can and get it back to us, and not ifll keep scheduling this back on the agenda, and see if we can 18 II drive on through and accomplish an agreed-upon policy statement.
19 11 We owe it to ourselves, to the Boards, to the people 20 II entangled in our processes, and people in general.
21 It sounds like a speech you were making, Vic, months 22 11 ago.
23 COMMISSIONER GILINSKY:
We should have done this in 24 II May*
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25 COMMISSIONER KENNEDY:
One last question on this,
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25 78 Counsel
- It is your judgment that in fact the policy state-ment essentially as we have now discussed it and agreed will constitute an effective response to the petitions-that are before us?
MR. BICKWIT:
Yes.
COMMISSIONER KENNEDY:
Okay.
CHAIRMAN HENDRIE:
Good.
Thank you very much.
(Whereupon, at 11:40 a.m., the meeting of the Commissioners was concluded.)