ML22230A124

Tran-M791004: Public Meeting Discussion of Procedures for Commission Review of License Applications & Interim Statement on Licensing (See 9/24 & 9/26 OGC Memos)

ML22230A124
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Issue date:	10/04/1979
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RETURN TO SECRETARIAT RECORDS

• NUCLEAR REGULATORY COMMISSION

IN THE MATTER OF:

PUBLIC MEETING

DISCUSSION OF PROCEDURES FOR COMMISSION REVIEW OF LICENSE APPLICATIONS & INTERIM STATEMENT ON LICENSING (See 9 / 24 & 9 / 26 OGC Memos)

Place -Washington, D. C.

Date - Thursday, 4 October 1979 Pages 1-68

Telephone :

(202 ) 347 -~700

ACE - FEDERAL REPORTERS, INC.

• Official Reporters

444 North Capitol Street Washington, D.C. 20001

NATIONWIDE COVERAGE* DAILY CR7471 1

DISCLAI!-'.IER

This is an unofficial transcript of a meeting of the United States Nuclear Regulatory Corrrrnission held on Thursday, 4 October 1979 in the Cornmissions's offices at 1717 H Street, N. W., Washington, D. C. The meeting was open to public attendance and observation. This transcript has not been reviewed, corrected, or edited, and it may contain inaccuracies.

The transcript is intended solely for general informational purposes. As provided by 10 CFR 9.103, it is not part of the formal or informal record of decision of the matters discussed. Expressions of opinion in this transcript do not necessarily reflect final determinations or beliefs. No pleading or other paper may be filed with the Commission in any proceeding as the result of or addressed to any statement or argument contained herein, except as the Commission may authorize.

R7 4 71

UNITED STATES OF A.MERICA

2 NUCLEAR REGULATORY COMMISSION

• 3 PUBLIC MEETING 4

5 DISCUSSION OF PROCEDURES FOR COMMISSION REVIEW OF LICENSE APPLICATIONS & INTERIM STATEMENT ON 6 LICENSING (See 9/24 & 9/26 OGC Memos)

7

8 Room 1130 9 1717 H Street, N. W.

Washington, D. C.

10 Thursday, 4 October 1979 11 The Commission met, pursuant to notice, at 2:27 p.m.

12 BEFORE:

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

19 Messrs. Bickwit, Buck, Case, Farrar, Gossick, Lazo, Malsch, 20 Ostrach, and Shapar.

21

22 * *

• 23

24 Ace- " era! Reporters, Inc.

• 25

I_

7471.01.1 3

Bl"/. gsh CHAIRMAN HENDRlE:.If we can turn to the item

2 which was originally. labeled for the first item for this

• 3 afternoon, discussion of procedures for commission review

4 of license application and interim statement on licensing.

5 We are joined by representatives of assorted boards, panels, 6 and so on. I welcome you all.

The general counselJs office has a general lead on this

8 subject and I think, lest I create havoc by trying to outline

9 it for you, I think I will ask the. general counsel to take

10 over. And in those capable hands, it will all be much

1 1 clearer.

1.2 MR. BICKWIT: The first order of business is to 13 determine which of these memoranda we take up first.

14 Our suggestion would be that we go first to the interim

- l :5 statement on licensing. The reason for that is that, as we 16 have seen in these past sessions, as we consider the various

11 options for commission participation in license issuance, 13 the matter is not only extremely important, out extremely 19 C O mp l i Cate d.

20 The fact that the commission has taken quite some time to 21 resolve this is perfectly understandable, in our view.

22 In view of those factors, we have to acknowledge the

23 possibility that another meeting will go by without resolution.

24 Even if the commission* is able to resolve it, as a general 25 matter, these options do call for policy statements which will r47l.0l.2 4 BW gsh have to be drafted and circulated so that there will be

2 application of this interim statement, even if things move

• 3 as quickly as we can imagine that they_will.

4 The other point in t~vor of going forward first with this

~ interim statement on licensing is that, as was pointed out 6 in the last session on this. general subject, all of the

, options that are being considered by the commission for its 8 own participation, increase the participation in the licensing

) Proc9ss, have one thing in common, which is that the process 10 before the licensing boards goes forward.

ll In light of that, in light of our understanding that 12 staff is awaiting the commission.J's lead on this particular 13 question of what to do next, we would suggest that we go

14 directly to the interim statement on licensing.

I :5 This statement was - before I go further, is that 16 acceptable?

1, CHAIRMAN HENDRIE: Yes, let.)' s do it.

18 MR. BICKWIT: This statement was put together with

19 the assistance of the executive legal director. I should 20 add that the executive legal director*"s help was instrum:intal,

2i except_ with respect to the last paragraph, which was not

22 a matter which we sought his advice on.

23 COMMISSIONER AHEARNE: That was one thing I wanted

24 to question about.

2:5 MR. BICKWIT: Basically, the statement provides that r471.0l.3 5 BW gsh no new licenses wi 11 issue without commission action. No new

2 decisions authorizing.license issuance will be issued'alone.

• 3 Partial, initial and appellate decisions may continue. The

4 staff should in those cases,.it feels, be prepared to proceed

5 with licensing reviews and the presentation of evidence

6 before boards and licensing hearings, and that petitions

7 received from various applicants requesting their proceedings

8 to resume are controlled by this statement.

9 Then in the final paragraph, it specifies the two positions

10 we were referring to, which is that we have petitions for

l l the commission requesting issuance of directives *on the

12 future conducts of those proceedings. And this statement is

13 intended to serve as the interim response to those requests

14 for Black Fox and Skagit.

15 COMMISSIOi-JER AHEARNE: I am not sure if I should ask

16 you or Bob, what do you intend the boards. in Black Fox and

1, Skagit to do after receiving this, since this is viewed as an

18 interim response?

19 MR. BICKWIT: I think it is appropriate to ask me

20 that they would go forward with hearings on the TMI-related

21 issues.

22 Presently, the boards are not going forward with hearings

23 on those questions.

24 COMMISSIONER AHEARNE: I know.

2j MR. BICKWIT: That they would attempt to decide those 471.01.4 6

BVi gsh issues with the guidance that is available, recognizing that

2 it is not total and that the boards would not issue in1tial

• 3 decisions authorizing license issuance.

4 CO MMI SS I ONER AHEARNE: So you would see this as

) oeing guidance to those tv10 boards to go through with th3 ir 6 proceedings but stop short _of actually reaching a decision?

7 MR. BICKWIT: Exactly.

8 COMMISSIONER AHEARNE: Until the final generic

9 policy.

10 MR. SHAPAR: The statement says that no licenses.

11 will be issued. Is it clear that no initial decisions have

12 been reached as well?

13 MR. BICKWIT: It was intended to say that.

14 CHAIRMAN HENDRIE: It says --

13 MR. BICKWIT: No full decision which authorizes

16 issuance of ~uch a permit.

l, Partial decisions would be appropriate.

18 CHAIRMAN HENDRIE: The language is* meant to avoid.

I~ triggering immediate e+/-fect on a construction permit.

20 COMMISSIONER AHEARNE: It does say that partial

21 initial decisions may continue.

• 22 CHAIRMAN HENDRIE: As well as appel.late decisions.

23 MR. SHAPAR: There is one other point that I want 24 a correct understanding about. It says that the commission 25 is determined that new construction permits, limited work 471.0l.5 7 BW gsh authorizations or operating license for. any nuclear power

2 plants shall be issued only after action of the commi.ssion

• 3 itself.

4 I understand that to mean not.ne~essarily action on the

S merits because if.you look at the 7.-qptions-~ I talce it that

6 one of the options that the commission has, _depending on which

l option is selected~ is.to go ahead and issue an initial

8 decision *. And the commission chooses to allow it to be

9 immediately effective.

10 It would take commission action, but not on the merits.

l l That is the way that I construe it.

12 MR. BICKvnT: That is correct *. These options vary 13 one to the next on what kind of commission action*is

14 appropriate.

15 COMMISSIONER KENNEDY: Is this language to be 16 construed in that light ---

1, MR. SHAPAR: Not on the merits,.depending on which

I 8 opt i on yo u t a k e

• 19 COMMISSIONER KENNEDY: In that case, we ought to

20 specify.

21 MR. SHAPAR: I don"t think so. - I think the gen'3ral 22 counsel has it just right. He is anxious to get this interim

23 policy stat9ment out. And I think.it should get out, and in 24 this form without any comment on the last par~graph.

- 25 fhat leaves you the more difficult question of the 7 options 471.0l.6 8 BW gsh I which I think you are going to have to have time to focus on.

2 CHAIRMAN HENDRIE: At least it provides guidance

• 3 which allows the process to go forward. It is, in part, going

4 forward now. But this would allow dealing with TMI-related 5 issues where the staff feels that they are in appropriate 6 shape and of such a nature in a given proceeding to be 7 introduced and dealt with in the proceeding.

8 That seems to me a step forward, which I applaud.

9 MR. SHAPAR: And with the meaning given to the action 10 of the commission, not necessarily on the merits. This is 11 consistent with whatever option you pick.

12 COMMISSIONER GILINSKY: Also recognizing that some 13 of what is done may have to get redone.

14 MR. BICKWIT: That is undoubtedly correct.

15 CHAIRMAN HENDRIE: I think it is a good idea. I 16 recommend it with my colleagues.

11 MR. BICKWIT: It was the idea of the acting chairman.

18 COMMISSIONER GILINSKY: I agree.

19 CHAIRMAN HENDRIE: Peter?

20 COMMISSIONER BRADFORD: It's all right with me.

21 CHAIRMAN HENDRIE: Very well. The commission has now 22 adopted the interim statement policy as laid out in the

23 counsel's memorandum by unanimous vote.

24 Let's get it out post haste, Mr. Secretary.

25 MR. CASE: I would like to point out another thing to

1471.01.7 9 BW gsh get this action, the lexters to CP owners and CP applicants

2 which I am awaiting guidance on from the commission~

• 3 CHAIRMAN HENDRIE: Thank you.

4 (Laughter.)

MR. BICKWIT: We've all b.een through it.

6 (Laughter.)

CHAIRMAN HENDRIE: Let's move to the next item, 8 seize this unexpected moment of serenity and plunge ahead.

9 MR. BICKWIT: I h~ve no.doubt that it will 10 deteriorate from here on in.

ll (Laughter *. )

12 MR. BICKWIT: In going through the options that were 13 raised at the last session, I would say that there is one

14 general statement that ought to preface discussion. We have

I :5 found no option that has one, simplicity, two, speed, and 16 three, flexibility.

17 CHAIRMAN HENDRIE: To say nothing of not being 18 ambiguous.

19 MR. BICKWIT: Perhaps the executive legal director's 20 opt i o n w i 11 5 a t i sf y th a _t t es t, but a 11 o f the s e opt i o n s 21 failed that test.

ll CHAIRMAN HENDRIE: We then are choosing the least

23 painful horn of the multi-horned dilemma.

24 MR. BICKWIT: That is the case. I wi_ll be guided 25 by your wishes here, but I assume what you would like is for

471.01.8 10 m*f gsh me to go through the various options

• 2 CHAIRMAN HENDRIE: I/m afraid so.

• 3 MR. BICKWIT: The first one is what we call

4 bifurcated initial decision. This was the option put forward

J in our memorandum of, I believe it was late August, early 6 August, August 3rd.

Under that option, the boards would, on the basis_ of a

8 policy statement put toge:ther by the commission, would

9 attempt to.divide the issues before them into TMI-related

10 and non-TMI~related issues.

11 They would attempt to reach an initial decision on th9

1~ non-T~H-related

• issues, a recommended decision on the

13 TMI-related issues.

14 By not reaching a full initial decision, the immediate

- 1:5 effectiveness rule would not be triggered. The understanding

16 would be that on all of the recommendations, the matter would

) I come before the commission.

I,g The license would not i~sue until the commission, based on

19 the record below, made decisions on those items recommended

20 by the licensing boards.

21 The appeal board would immediately move to review of the 22 non-TMI-related issues and those would proceed as under

23 curr3nt commission procedure.

2-+ ~ith respect to the TMI-related issu~s, and this is the 25 primary disadvantage of the option, no appeal board revi9w l47I.Ol.9 1 1

r Bl"/ gsh would be authorized either before or after the. issuance of

2 the license.

• 3 fhe second option is very similar to the first. The only 4 difference is instead of issuing an initial decision and a

~ recommended decision, the boards would issue two partial

5 initial decisions, one on TMI-related issues, one on

, non-TMI-related issues.

8. The partial initial decision on TMI-related issues would

~ De treated as the recommended decisions would be treated 10 under the first option~

l I The advantage of this over the first option. is that the 12 commission needn~t examine the entire record* sent out by the 13 licensing board as it would have.to under a recommended 14 decision approach.

]j It would examine it could examine only those aspects of 16 the decision which had been alluded to in exceptions.

J I fherefore, I think it is clear that the second option is

15 preferable to the fir5t.

19 COMMISSIONER AHEARNE: In that option, it is required 20 to explicitly suspend immediate effectiveness.

21 M~. BICKWIT: Yes, that is a modest disadvantage 22 a s so: i a t e d w i th i t. I t is a m i n i.s t e r i al a c t th a t the 23 com~ission would have to perform.

24 The advantage of these options is basically that you have

25 simplicity here. In each case, it will be known who is going to 471.01.10 12

81¥ gsh decide what issues and when prior to license issuance.

2 The problems are really two: One, the difficulty of

• ')

..) dividing issues into TMI-related and non-TMI-related issues

4 as a general proposition.

J I don't regard that as a serious problem because if.

6 errors are made, they are rather easily remedied in the

7 course of the proceeding, the ideas that the boards would

8 make records on both sets of issues.

9 If in the view of the commission the wrong ones had gone

1 () to the appeals board and the wrong ones. to the commission,

l l they would announce that in the individual case.

12 fhe serious problem is that in the case of both of these

13 options, you have no appeal board review, either before the

14 issuance 6f the license or after it.

IS COMMISSIONER AHEARNE: Of the TM! --

lo MR. BICKWIT: Of the TMI-related issues, the reason

1 I you don't have it before is you want to proceed as quickly

13 as ~ossible. And I should say that that is another important

19 advantage of these options is that it does allow you to 2J pro:::eed and providing for appeal board approval prior to the 2!

22 COMMISSIONER KENNEDY: Without. that appeal board

23 review as to those issues, is it true that those issues would

24 then be admissible immediately without further consideration 2:i within the commission's structure?

0

471.01.ll 13

BV.l gsh MR. BICKWIT: _What was the first part of yoVr

2 question?

• 3

• COMMISS IONE_R KENNEDY: Without that appeal board

4 review, is it true that those issues not reviewed would be

) immediately appeal able to the federal courts?

6 MR. BICKWIT: After the commission's decision, yes.

7 The reason you would have no appeal board review after,

3 just to finish this concept, is it would be irregular to

9 have the appeal board reviewing the decision of the commission.

10 And under these options, the commission.would, in_ effect,

1 I be re aching an initial decision.

12 The third option is certainly the

13 CO MMI SS I ONER GILJNS KY: Irregular*, but useful.

14 (Laughter.)

- 15 MK. B ICK~vIT: The third option

16 CO MM ISSI ONER AHEARNE: Bob is 9oing to propose.a-

I 1 similar

18 (Laughter.)

19 MR. BICKWIT: The third option is suspension of the

20 immediate effectiveness rule. That certainly has simplicity

21 a sso:: ia te d with it.

22 The problem is that it sacrifices speed~ It would provide

23 that before any license would issue, the full appeal board

24 review would be contemplated and the commission would move

25 to its review process with the understanding that at any time

I -

1471.01.12 14 BW gsh during its review process, it could.authorize issuance of

2 the license. But it would not be contemplated that it would

• 3 do so until it had reviewed the TMI-related issues on which

4 it would have had the benefit of appeal board review.

J COMMISSIONER KENNEDY:. Would that not be accompanied

5 by procedural rules for the commission to follow in that

7 review in order that the parties would understand the

8 procedures which the commission would follow and the

I 9 times that would be contemplated?

10 MR. BI CK WIT:. I think that would be helpful.

11 COMMISSIONER KENNEDY: We do not now have such

12 a rule.

13 MR. BICKWIT: That's right. What you would have to

14 do is specify under what circumstances. To the extent you

- 15 could, you would contemplate that licenses would issue. And

16 if you simply suspend the immediate effectiveness rule and

1 / makg it -- it would be a lot simpler to say that licenses

18 issue only after full commission review.

Jy But it would be -- I think you would be sacrificing

20 somgthing. And the way to avoid that understanding would be 21 to s~ecify procedural rules.

22

23

2:\\-

23 71 02 01 15 kapBi'IH The fourth opt ion is.the same as the third with

2 one important advantage *.. That is that the Appeal Board

• 3 would move first to th~ TMI-related issues and atttempt to.

4 dispose of them. *Then the matter would come up before. the

5 Commission while the Appeal Board was conducting its review

6 on the non-TMI-related issueso

l The modest disadvantage is. that the Appeal* Board*

8 would then be making a decision as to what is TMI-related

') and what is not T~H-related. An appropriate place for that

10 to be made is the Commission. The Commission would, of

11 course, issue guidance to try to help the Appeal Board

• - 12 through that decision. But the application to the

13 particular is always difficult.

14 COMMISSIONER KENNEDY: In.any of these instances,

- 15 is it visualized -- I am correct* that it is visualized, that

16 the definition of what a TMI-related issue is would be given

1 ' by the Commission?

18 MR. BICKWIT: It is certainly envisioned for the

l~ first couple of options. It would not be necessary, but

20 perhaps it would be appropriate with respect to the 21 case-by-case determinations. The advantage of the 22 case-.by-case determinations is that the Commission doesn"t

23 have to d6 that. I think if the Commission can. do* that, can 24 arrive at an agreement on that, it would be helpful to the

2:S parties, but on a case-by-case basis, it can simply look at 1 47 I 02 02 16

kapBWH the particular case and sayi These are the issues we want to

2 ieview and these are the issues we don't want to review, and

• 3 never categorize them as TMI or non-TMI.

4 COMMISSIONER KENNEDY: On.the other hand, if in

> any of these other situations where bifurcatidn occurs on

6 the grounds of TM! v:ersus non-TM!, somebody has got to state

J that. Presumably that is the Commission.

a MR. BICKWIT: That is exactly the case.

-J COMMISSIONER AHEARNE: On that line, you.mentioned*

10 as a disadvantage to number four that the Appeal Board would

11 be making that separation. I don~t see why the Appeal Board

12 necessarily is the one making that separation.

1 3 MR. BICKYHT: It is making that separation

14 pursuant to Commission guidance.

- 1:5 COMM.ISSIONER AHEARNE: That's right, as opposed, 16 in one and two -- the Licensing Board was making that

17 separation pursuant to Commission guidance. So as far as -

18 it se.ems to me that one, two and four have that same 19 character.

20 MR. BICKWIT: That's exactly right.

21 COMMISSIONER AHEARNE: The bifurcation is made on 22 Commission guidance in all three of those.

23 MR. BICKWIT: That'*s right. Ultimately it is the

24 Commission that decides that and it is the Commission that 2j provides the guidance

• 71 02 03 17

kapBWH COMMISSIONER A.HEARNE: I was puzzled *. You see,

2 you hadn't indicated that as a disadvantage in one and two,

• 3 but you had in four.

4 MR. BICKWIT: If we did not, it w~s an oversight,

5 because it certainly is.

6 Now, on the next option, everything would be

I subject to your normal procudures except the Licensing Board

8 would make a decision on immediate effect.iveness, subject -

y using criteria that you had set down with respect to how

10 that decision might be made. This is not an option that we

11 think ought to be taken --

12 COMMISSIONER AHEARNE: In that case, then, as I

13 under stood your write-up, the Licensing Board would then

14 have as one of the issues on which a record 'Could be made,

- 15 is the immediate effectiveness issue.

16 MR. BICKWIT: We think that is a useful feature,.

I I out that you ought not to go forward with it in its

18 entirety.

19 The sixth option is the idea of a case-by-case

20 check-off, in effect. The understanding would be that after

21 the boards arrived at their decisions, yo~ would suspend the

22 immediate effectiveness rul9, tell them to arrive at a full 23 initial decision. The Commission would look at the matter

24 and attempt to malce two decisions: one, who is going to

25 review what? And two, when is the decisio~ to be effective?

18 71 02 04 kapBWH So that rather than set out guidance to be applied by

2 others, the idea would be that the Commissi.on would function

• 3 on a case-by-case basis, looking at the record below and

4 with the advice of its own staff, attempt to re~olve those

'.) questions.

6 They would have all kinds of flexibility. They

I might decide that some, issues should be reviewed by the

8 Appeal Board, some by themselves, some before effectiveness

) and some after effectiVeness. The advantage of this option

10 is that flexibility and the fact that not everything has to

11 go through the Appeal Board prior to the Commission making a 12 decision of the issuance of the license.

13 The disadvantage is that it is unclear. It will

14 -be unclear to the parties exactly what is going to happen to

- 15 them in each case. This may vary from one case to the 16 next. It wi 11 be cumbersome.

17 CO MM ISSI ONER AHEARN E: Is the only difference

13 between -- if I compare that with option two, are the

1 ;i differences, one, there is a fixed period of time, and then

20 two, as opposed to giving guidance in advance of what the

21 split is, you do it for the individual case.

22 But as far as after, let's say on the individual

23 case, after the Commission has made its decision, the rest

2-+ of the process is similar; is it not?

25 MR. B ICKrHT: Yes. Option two is one of the e

471 02 05 19

kapBWH options that will be availaole for consideration by the

2 Commission under option six. It wi.11 in effect take a look

• 3 at the various ways of proceeding and decide* which, in this

4 particular case, makes the most sense.

'.) -

Option seven is the same as option six, with the

6 exception that it intends to respond to the general sense

' that we had of the Commission at the last meeting, that the

8 Appeal Board*review was valuable, and to dispense with it

9 before issuance wasn't necessarily a reason to dispense with

10 it after. Or at least the reasons that might compel the

l 1 Commission to decide to dispense with it before may not

12 compel them to decide to dispense with it after.

13 It gets around the problem of the *anomaly of

]4 having the Appeal Board reviewing the_ CommissionJs*action~

- Jj whi:h was the only thing that stood in the way of

16 post-license issuance Appeal Board review, by providing that

1 I the Commission would consider its decision provisionally.

18 Just what that means is really dependent on how it goes

lJ about implementing this partitular option. It could, _in

20 fact, be a very casual check-off, in which case the word

21 i'provisional 11 would have a meaning that is usually 22 associated with.that word.

23 If it is a very thorough consideration by the 24.Commission, in effect, the only thing that differentiates a 25

• provisional decision from a final decision on the merits 20 4 71 02 06 kapBWH would be that we would call it a provisional decision.

2 COMMLSSIDNER AHEARNE:

• Could not that be similar,

• 3 a similar system that could be tacked on to either*one or

4 two?

'.) MR. BICK!.A/IT: That's true. We tack it on to seven

6 only because we sensed that the* Co.mmi ssion was happier with the case-by-case approach than with the approach of the

8 options that were originally presented by our officeo If

y that is not the case, we obviously can go that way. Those

10 are the seven that we have. I would be delighted to hear

11 option eight, if that is the pleasure of the executive. legal

12 director. I hope it's good.

13 MR. SHAPAR: Let me make a few preliminary

14 remarks. I think the key in decision.:..making is the role. yo,u

- 15 want to play on TMI issues and how soon you want to play

16 them. The advantage of immediate effectiveness is only, as

17 I gathered from the initial discussions of this Commission,

18 that they decided ahead of time that they want to decide all

19 TMI-related issues on the merits. If that is no longer the

2J way the thinking is going, then I think ---

21 CHAIRMAN HENDRIE: I didn't understand it that 22 way.

23 MR. SHAPAR:- Then maybe I misunderstood it. If

24 that is not your thinking -

25 CHAIRMAN HENDRIE: Maybe some of my colleagues may 21 r4 71 02 07 kapBWH indaed want to do that, but the thing that I had ih mind in

2 adding my vote to the majority, that the-Commission -- no

• 3 licgnse would issue until Commission action on the matter

4 had in mind an overview sort of function.

) My own expectation is that on a substantial number

6 of the TMI-related matters -- which I must say, are going to

7 be very hard to define in a way that doesn't include all

8 matters in* the proceeding -- that on most of those matters I

9 would expect to find the Commission satisfied with staff 10 requirements and simply looking to see that indeed there

11 were in the record adequate commitments from applicants and

12 that the Board initial decision recognized those commitments

13 in ~n appropriate way, and that there would then be no need

14 for the Commission, in fact, to sit down and agonize unce

1 :5 mor9 on the merits over whether:or not those requirements

16 which it has, after all, heard in a generic sense at various

l I previous times from the staff, were precisely the thing for

18 this case.

19 There might, 9n particular cases,_ be particular 20 items where you want to pull them out and then look at them

21 in more detail. I can even conceive of cases of sending

22 them back to the Licensing Board for with. instructions as 23 to gathering of further evidence in a particular area. And 24 further recommendation for the Board and so on.

25 But to contemplate that the Commission proposes to 22 r4 ll 02 08 kapBV'IH deal on the merits.with. all of *the TMI-related cases, in

2 TMI-related matters, all of the cases coming up, I think

• 3 that simply exceeds any reasonable expectation.

4 MR. BICKWIT: As I remember it, you used the

) phrase "briefing.u and.11check-off.JJ

0 CHAIRMAN HENDRIE: Precisely.

• 7 MR. BICKWIT: That, as best we could determine. in

8 reviewing the transcript, the Commission had, decided that

9 that was what was appropriate.

10 COMMISSIONER GILINSKY: That i sn-'t what I had in

11

• mind. I think briefing and check-off sounds a bit skimpy.

12 MR. SHAPAR: I was making a very limited point.

13 COMMISSIONER KENNEDY: Before you get to it, if we

14 have got two different views on what we are talking about

- 15 here, as to the basis for everything that* has been done, I

16 have heard one and 1 would appreciate hearing the oth~r.

17 COMMISSIONER GILINSKY: It would depend oh the

18 circumstances. Just as the Chairman laid out before the

19 General Counsel mentioned briefing and check-o.ff, there may

20 be cases in which we inquire in detail, may want to send it

21 back to the Board for a further look. I think it would

22 depend on the circumstances, and how satisfied we were with

23 what had been done. But to say briefing and check-off, it

24 sounds a bit --

2:5 COMMI SSI-ONER KENNEDY: Satisfied as to what?

23

'471 02 09 kapBl"JH COMMISSIONER GILINSKY: As to the conditions of

2 the license and the extent to which the licensee is -- has

• 3 carried out the requirements of the staff, and so on.

4 CHAIRMAN HENDRIE: But, on many of the items. that

) we would have heard about from the staff in generi~

6 discussions of what ought to be done about something, I

7 sup~ose there is a particular instrument that that is -

8 would be useful in following the course of an accident, and

9 that has become a staff requirement, and we have heard ~bout

10 that and now here comes a case and the applicant says, Yes,

11 I will put that in. And the permit notes that commitment.

12 May we go back, then, and gather evidence

13 COMMISSIONER GILINSKY: It might be a very brief

14 revi9w. ~e may decide that you are satisfied on a fairly -

15 CHAIRMAN HENDRIE: Just so.

16 CDMMISSIONER GILINSKY; Without taking a very deep

I i look. But on the other hand, I think the possibility.

18 remains that we would want to take a look at* certain areas.

19 MR. BICKWIT: And check-off can be preliminary to

20 that.

21 CHAIRMAN HENDRIE: When I was nodding to briefing 22 and check-off --

23 CCPil:MISSIONER GILINSKY: It was too enthusiastic.

24 CHAIRMAN HENDRIE: There wasn't any implication -

2:5 (Laughter.)

24 74 71 02 I 0 I

I kapBWH

-*there is no implication that that is the

2 totality of the consideration.

• 3 COMMISSIONER KENNEDY: I remain partially

4 unenlightened.

J CHAIRMAN HENDRIE: Is that better than partially

6 informed?

1 COMMISSIONER KENNEDY: I have been el)lightened by

8 the erudition of my colleagues but not wholly. When* we say,

9 Yes, we might.as a result of our review and check-off find 10 something in which we wish to pursue more deeply, how would

l 1 we do that? y\\fhat would that entail:?

12 CHAIRMAN HENDRIE: I will say, for myself~ that if 13 the record doesn't provide -- would not provide a su.fficient

14 set of information for me* to come to a conclusion on the

15 particular matter, then we would have to dec*ide, I guess, 16 how we got more information. And I must say for myself --

1 / COMMISSIONER KENNEDY: That's my question.

18 CHAIRiVtAN HENDRIE: For myself, the difficulty of

19 the Commission hearing evidence, I think, would be

20 sufficient so that if we couldh't agree that written

21 questions and the responses to them would be a sufficient 22 filling in of the record in that area, then I would remand

23 to the Licensing Board with instructions to go back and take

24 further evidence and. so on*, in this area,* to develop 2:5 information on the. following points: A, B, C *- and send it 25 f471 02 ll

kapBWH off.

2 COMMISSIONER KENNEDY:,Written questions to whom?

• • 3 CHAIRMAN HENDRIE: The first question would be:

4 could we write the parties and say, We would. like-we

5 would like to know what your view is on the following

6 points, A and B, and is that does that, in your view,

support position C or whatever? If it could be simply -

• I

8 think that is a permissible procedure.

9 MR. BICKWIT: If you need, what is ref erred to as 10 11 new evidence." If you want to get all kinds of factual

11 matter before you.

12 COMMISSIONER KENNEDY: That.,s what I assume we are 13 talking about.

f4 M~. BICKWIT: Then you may have to remand and have

- 1.:5 that evidence taken by a Board. If what you are looking for

16 is clarification of matters that are in the reeord, it is

I l perf9ctly appropriate to go at it with questions.

_18 Co MM ISSI ON ER KENNEDY: That is your

19 understanding.

20 CHAIRMAN HENDRIE: Yes.

2i COMMISSIONER KENNEDY: Is that your understanding,?,.

22 COMMISSIONER GILINSKY: Yes.

23 MR. SHAPAR: I find this very helpful.

2-+ COMMISSIONER AHEARNE: Do you withdraw your 25 alternative?

c) 26 174 71 I 02 12 kapBWH MR. SHAP AR:, No

• 2 CHAIRMAN HENDRIE: He is going to adopt it.

• 3 MR. SHAPAR: I think the point here, as a result

4 of this discussion, is if the Commission, is fairly

i well-convinced that it wilL,not, as a: general matter, review

6 TMI matters necesarily on the merits, I think that cuts the

l out from under the immediate,effectiveness option. When I

8 was advocating this some time ago, I was under the

9 misimpression from this discussion that I have heard today

10 that the Cornmissio~, indeed, wanted to review on the

l l merits, all TMI-related issues, and I have been instructed

1.2 otherwise from this discussion, if I read it correctly.

13 As I understand this discussion today -

14 COJJMISSIONER KENNEDY: Would you repeat that

- JS statement?

16 COMMISSIONER GILINSKY: Certainly the option is

I ' open. The option is certainly left open for the Commission

18 to review any of these issues.

19 MR. SHAPAR: But I am saying, viewing the

20 gradation of the seven issues-. seven options, if the

21 Com~ission really wants considerable flexibility as to the

22 extent to which it wants to get into a TMI-related issue

23 from practically nothing, to something quite substantial,

24 that to me argues that you would not want to suspend the

2j immediate effectiveness rule across the board. I was 27 74 71 02 13 kapBWH laboring under a misimpression at a previous point in time

• 2

• 3

4

6

1

B

9

10 11

~

P" 12

13

14

- 1 :5

16

I 7

18

19 20

21 22

23

24

25 CR 7471 28 i

WHITLOCK I t-3 mte 1 CHAIRMAN HENDRIE: I thought that was the case when

2 I couldn't convince you before.

• 3 MR. SHAPAR: I thought you were being slow that

4 day. I'm sorry.

5 (Laughter:)

6 COMMISSIONER AHEARNE: This is a general philosophi

7 cal discussion. Could we table Option 8 just to see how it

8 would fit into the rest of the framework?

9 MR. BICKWIT: By "table," you mean put on the table?

10 CHAIRMAN HENDRIE: Well, we could move the table.

1 l (Laughter.)

12 MR. SHAP.AR: Option 8 is fairly close to Option 6.

13 But it would read something like this: that the.Commission

- 14 closely monitor these proceedings and select out as early on

15 as possible any issue that they think they want to decide

16 themselves. They can.also decide in connection with _that,

17 either at that time or when the partial initial decision is

18 issued, whether or not it wants the decision to be made

19 immediately effective;. in other words, that the Commission

20 would retain complete flexibility at any point, preferably

21 as early as possible, to select out a TMI-related issue that

22 it thought it should decide.

23 The difference between that, essentially, and

(

24 Option 6 is that Option 6 would in effect contemplate bifur-A.eral Reporters, Inc.

25 cation. Also, it would extend by a period of 60 days the mte 2 29

time within which the Commission would decide.

2 CHAIRMAN HENDRIE: Your option just says, instead

• 3 of coming down to a board initial.decision, follow~d by what

4 ever period, 60 days, the-- propose suspension of immediate

5 effectiveness, during which the Commission decides what it

6 wants to look further at, you would propose that we simply

7 monitor the proceedings and before any proceeding reached an

8 issuance of an initial decision by the board or a partial

9 initial decision bya licensing board, the Commission would

10 issue an order saying: Look, in this particul~r proceeding,

11 here is what we want to look at, and here is what we are

12 going to do about the immediate effectiveness r.ule in this*

13 case.

14 MR. SHAPAR:* But if it chose to wait and then it

15 could grab the issue at that time.

16 CHAIRMAN HENDRIE: Providing we get there within

17 ten days.

18 MR. SHAPAR: The contemplation would be try to get

19 at it earlier.

20 COMMISSIONER AHEARNE: When you say "earlier," do

21 you mean take from the licensing board, say, in the middle

22 of the licensing board proceeding an issue, and complete

23 the record in front of the Commission?

24 MR. SHAPAR: Either remand it to the Commission or Ace-ederal Reporters, Inc.

• 25 any of the other options we described, or in connection with mte 3 30

the other basic options that were discussed. But if the

2 Commission selected one issue out, there is no. way. that you

• 3 can get a license issued, because the selection of only one

4 issue by the Commission, until that issue is decided by the

5 Commission, would prevent the issuance of a-construction permit

6 or an operating license.. And using that technique would leave

7 essentially the existing regime in effect, to the extent you

8 wanted to leave it in effect.

9 Again, I would emphasize, if you picked out one issue

10 that no license could issue until you resolved that one issue.

11 I would reject any option which required an early-on differen

12 tiation between Tl'-1I-related issues and non-TMI-related issues.

13 I think*it creates too many complications.

14 CHAIRMAN HENDRIE: I agree with that. But I don't

15 like the option, just because. in deciding what to what I

16 would like as a Commissioner to chew hard on in a particular

17 case, rather than to reach down before the record has been

18 completed before the licensing board and the licensing board's

19 partial initial decision including that item had been written,

20 I just feel it premature to dive down and say, give us that

21 one, and then it is up to us to decide how to handle it.

22 I. prefer to see it develop in the regular.proceeding

23 and then see how it comes out.

~ 24 MR. SHAPAR: That gives you a conceptual problem.

A.-eral Reporters, Inc.

25 If you leave the case with the board, the board has got to mte 4 31

decide the case_ based on your existing regulations. What else

2 has it got as-a criteria for deciding the case except the

• 3 regulations that are in place? So how do you expect the

4 board to reach decisions on TMI-related issues unless.it gets

5 some sort of guidance from the Commission early on?

6 The only litmus paper the board can use are the

7 regulations that are now in place.

8 COMMISSIONER KENNEDY: If during the proceeding the

9 board is informed that the Commission wishes to-consider the

10 following issues, A, B, as TMI~related or however one wants

11 to describe them, does the board then cease taking evidence

12 on those issues? And if so, does it mean that the Commission

13 then must take the evidence on those issues?

14 MR. SHAPAR: There are various ways they can handle

15 it. One has to recall that the Commission has* general super

16 visory authority to pick out any issue it wants and say:

17 Board, don't _decide it. The board can r~serve that issue and

18 then say at that point several things:

19 Number one:. We want to take evidence on it;

20 Number two: We want to issue the following guidance

21 on this issue, and send it back to the board with instructions

22 as to how to handle the issue.

23 Those are just two of the options. But you have

24 the authority under your general supervisory authority to pick A.era! Reporters, Inc.

25 out any issue and say: Board, don't handle it until we tell '

rote 5 32

you what to do. Take evidence yourself or remand with

2 instructions.

• 3 But the basic problem is the one I just described.

4 If you let the board go all the way with it, they are going to.

5 apply your existing regulations pre-TMI. Unless you somehow

6 give them instructions early, I don't see how they are going

7 to know what to do.

8 COMMISSIONER KENNEDY: Unless you give them instruc-

9 tions now or at some point based upon whatever information has

10 been collected vis a vis TMI issues.

11 CHAIRMAN HENDRIE: And if you are not in a.position

12 to do that, I don't know what we are going to do~

13 MR. SHAPAR: I don't know, either.

14 CHAIRMAN HENDRIE: Decide something in contradiction

15 to the existing regulation because we speculate that we may

16 change it tomorrow?. I* don '*.t think we can do that any better

17 than the board can.

18 MR. SHAPAR: But you can give instruction for

19 sensitive or non-sensitive, and you can ask*the*board to.

20 explore certain things.

21 CHAIRMAN HENDRIE: And we can issue it periodic

22 general guidance to help the board in policy statements.

23 COMMISSIONER AHEARNE: I thought that is what Len

24 had in mind when he prefaced many of these as either issuing Ac eral Reporters, Inc.

• 25 guidance or policy. statements.

rote 6 33

MR. BICKWIT: To the extent you can. But in most

2 most of what you are contemplating -- I think Howard would

• 3 agree with this -- it involves changes in interpretations, ;of

4 the regulations, rather than new regulations.

5 CHAIRMAN HENDRIE: We get the whole short~term, and

6 what do we need in.the way of reg changes?

7 MR. CASE: In* the staff view, we need none.

8 CHAIRMAN HENDRIE: When we get around to the operator

9 training stuff~--

10 COMMISSIONER AHEARNE: And emergency planning.

11 CHAIRMAN HENDRIE: But to the extent those changes

12 are enunciatable by the Commission for its own purposes, I

13 assume they are enunciatable by

14 COMMISSIONER KENNEDY: They are enunciatable by the

15 board.

16 MR. BICKWIT: I think this is a useful addition.

17 I wouldn't expect you to use it much. But if you saw something

18 sitting there that you wanted~-that you knew you wanted to

19 handle, I don't see why you couldn't go in and grab it.

20 COMMISSIONER KENNEDY: You can always do tnat.

21 CHAIRMAN HENDRIE: We can do that under -- a policy

22 statement

23 MR. SHAPAR: This implies a close monitoring of the*

cases as they go along.

25 COMMISSIONER GILINSKY: That seems to be the key

---

~

mte 7 34

to your suggestion. That is the way it differs from the other.

2 proposals.. We watch these cases very closely and step in

• 3 where appropriate.

4 MR. SHAPAR: And give guidance where appropriate.

5 MR. FARRAR: The same :staff that says. that you can ge

6 two different techniques under the existing regulations will_ be

7 at the hearing and can present that view to the licensing

8 board, with all of the expert support. It, _is.not like the

9 boards would be operating in the dark, unfamiliar with what.

10 the staff thinks the new interpretation of the regulations

l l will be.

12 MR. SHAPAR: The Commission can have its own

13 perspective, *which the staff 'may not necessarily know about,

14 particularly.in the sensitive area of TMI, with reports* coming

15 from various bodies.

16 Beyond that, I would say that I am not sure that

17 I understand Option 7, but if it contemplates an appeal board

18 speaking after the Commission, I guess I would recommend

19 against it.

20 MR. BICKWIT: It does contemplate that, only because

21 I think.everyone on the Commission felt that it.was a minus

22 to associate with an option the fact that the appeal board -

23 you were going to have licenses issuing permanently with the

24 appeal board never having seen.some of them, some portions df A.era! Reporters, Inc.

25 them. And we thought it preferable to have the appeal board mte 8 35

going after the Commission in some sense to living with the -

2 notion that the appeal board would fail to see some portions.

• 3 COMMISSIONER GILINSKY:_ You are suggesting that in

4 those cases where the Commission steps in, you would then have

5 no further review.

6 MR. SHAPAR: I would strongly urge that the Commissio

7 have the last word on any issue in any case.

8 COMMISSIONER GILINSKY: In the sense we have the

9 last woid, in that it goes to the appeal board: We would still

10 have the last word.

11 MR. SHAPAR: That's true. I think events might

12 *constrain you.

13 MR. BICKWIT: You don't want anyone to have a word

14 after the Commission.

15 MR. SHAPAR: Yes, I would urge that on you.

16 COMMISSIONER AHEARNE: You are not proposing elimi

17 nating federal courts?

18 MR. SHAPAR: No.

19 (Laughter.)

20 COMMISSIONER AHEARNE: Should we hear what the

21 views are of the three gentlemen here?*

22 CHAIRMAN HENDRIE: I think that would be a good

23 idea. Shall we go left to right, right to left, or start in

24 the center?

A.era! Reporters, Inc.

25 DR. BUCK: I will take the appeal panel. I would mte 9 36

say that Mr. Rosenthal couldn't be here today and he delegated

2 Mike Farrar and myself to come down here. We will try to

• 3 CHAIRMAN HENDRIE: I am sure the panel is ably

4 represented.

5 MR. FARRAR: For a rare t,ime, -we are 'in agreement on

6 this.

7 (Laughter.)*

8 CHAIRMAN HENDRIE: Can we get a.picture?

9 (Laughter.)

10 DR. BUCK: I am not going to suggest that the appeal

11 board review the Commission decision, although I admit it

12 would be fun sometimes.

13 What we are suggesting today is really a modification

14 of Option 6, in an effort of simplification., Our concern over

15 all of these options is that there seems to be sort of -- they

16 seem to be cumbersome. I think to make Option 6 effective

17 one. has to say, first, we are going to suspend the immediate

18 effectiveness rule for a given period of time on each case,

19 maybe 30 days. It may be necessary to have it 60 days. But

20 somewhere in that order of magnitude.

21 In our opinion, the lic~nsing board, with* the proper

22 direction from the Commission, should go ahead and hear the

23 entire case.. I. say this because there are. situations where

24 non-TMI issues may call for a stay in the decision. This has A -tleral

• Reporters, Inc.

25 happened in the past. I think one cannot say that it is only rote 10 37

TMI issues that might cause a stay. I think the whole thing

2 ought to be done.

• 3 I think the licensing board should go ahead and issue

4 its decision. Of course, it is stayed by the suspension of

5 the immediate effectiveness rule for a number of days. I

6 think within a properly written decision, it can indicate to

7 the appeal board and the Commission both, any particular

8 issues that the licensing board may think are close. They

9 have decided the issue, but I am certainly thinking, in

10 writing that issue, you can give an indication ;of, yes; we

11 decided this way, but it is close. These are the facts,

12 There are pros and cons.

13 I would then let the normal procedures* take over,

14 of people who want to request a stay have their five or ten

15 days to request a stay and reply in five days. The Commission

16 the ~ppeal panel would then follow a normal procedure on the

17 stay situation. We.would go after this on an expedited basis,

18 on the decision and the brief that we receive from the parties,

19 to decide whether it is obvious that you need a stay or it is

20 obvious that you don't need a stay, and the contentions are

21 not up to that.

22 Or it may be that there is a question and we feel

23 that a certain issue cannot be decided without further evi-

dence or further questions being asked of the parties. Under

25 that last circumstance, we would do what we have done before, mtell 38

which is to issue a stay and either.take an expedited hearing,

2 which canbe done in a matter of two or three days, or have

• 3 some questions which~should be received in a few days; our

4 effort being to finish this in perhaps 30 days or thereabouts,

5 perhaps sooner,. keeping. the Commission informed.

6 The Commission, of course, would review the case as

7 it came along and they would get the decision and the. briefing.

8.we would then issue a decision in which we would go through and

9 give our reasons for not having a stay beyond the 60-day

10 period and so on, or.for extending that stay until further

l l evidence was gathered, or until we finished our review on

12 the merits.

13 In some cases, we may sayj it is not obvious -- it

14 is not obvious on what we've got here that this is something

15 that shouldn't have a. stay. There is.a question here.* We

16 want more time to look at it. We would say so, extend. the

17 stay until we had an opportunity of a full review.

18 This, of course -- the Commission would be informed

19 of this. What we would be doing here is in a sense acting as

20 the eyes and ears and the filter for the Commission as to what

21 our reasons are for stay and.no stay.

22 It would go to the Commission at that point, and

23 they have a jump on this whole thing. They have the decisions,

24 the briefs, the appeal board decision on this. They look at A - ederal Reporters, Inc.

• 25 it. And if we have some doubts about whether this is a stay

mte 12 39

situation or not, or if we say, yes, we should stay it, when

2 it goes to the Commission they may say otherwise.

• 3 COMMISSIONER AHEARNE: What you.are sending to the

4 Commission is the question of whether or not immediate

5 effectiveness should be put into place.

6 DR. BUCK: Precisely.

7 COMMISSIONER AHEARNE: But not the substance of any

8 of the specifics.

9 DR. BUCK: Not the merits.

10 In other cases, as we.have done where we have had

11 stay questions, we have looked at the prima facie situation

12 to see if there is a case for a stay. If it _is questionable,

13 you have to extend the stay.

14 MR. SHAPAR: What criteria would you use for the

15 stay?

16 MR. FARRAR: We could also put in that pac.kage

17 something that strikes us as a policy issue that we can't

18 get our hands on or that the licensing.board couldn't get

19 their hands on, because you people know something --

20 COMMISSIONER A HEARNE: Because we haven't made it

21 clear.

e-3 22 (Laughter.)

23

24 Ace-eral Reporters, Inc.

• 25

/4 71 04 01 40

pv BWH MR~ FARRAR: It is something that needs your

2 immediate attention. This needs your attention. You may

• 3 agree or disagree when you get it, but we will give you a

4 package that tells you this is what you have to worry about

~ right now in the next few days.

6 DR. BUCK: The criteria for the stay - very ofteri 7 the requests for a stay _is on the basis of environmental 8 damage, and we will give the cr1teria there; if there is

9 going to be immediate damage done, we will give a stay. We

10 have a similar sort of thing that can *be done with regard to

11 safety.

12 I don't know how I distinguish between TMI an~ ariy

13 other safety issue, but supposing that we decided it is a

14 TMI issue, we look at it and say, ~This is a design situation. It looks very much like a problem that they had

16 at T\\.fI, 11 or we have a management situation or something like

1,.this and we say we want to know more about it.

18 MR. FARRAR: We envision using standard stay

19 criteria, and one of those is where lies the public 28 interest. fou have a seriousi difficult, sensitive, close

21 saf3ty issue. Then that can be sufficient to say it is not 22 worth letting this reactor operate until either w~ or ths

23 commission get a handle on the merits of that issue. You 2a have got flexibility under the existing stay criteria to 25 handle any of the.cases that come up.

1471 04 02 41

pv B~Vrl COMMISSIONER GILINSKY: What was the significance

2 of the 30 to 60 days?

• 3 MR. FARRAR: So people can come to us -

4 COMMISSIDNER GILINSKY: The period to make a

) motion?

.:5 MR. FARRAR: You have to come to us within the.

7 rule, within 10 days. And everybody would know that this

8 decision is not effective for 60 days.

9 COMMISSIONER AHEARNE: It s.eems to be a deadline

10 under which, at least as I understood the original

11 ~resentation~ and it seems to still be here -- that is, the

12 deadline by which our processes must run, because if it

13 hasnJt completed, then the immediate-effectiveness rule --

14 MR. FARRAR: You would suspend the

- 15 immediate-effectiveness rule for 60 d~ys and within that

16 time we co0ld take any further action to suspend it further.

1 I DR. BUCK: And the time to get it to the

18 commission.

19 MR. FARRAR: And either making.a ruling or

20 COMMISSIONER GILINSKY: Why do you need 30 or 60

21 days?

22 MR. FARRAR: By the time. the parties get the

23 decision in their hands - we had this trouole in

)ll

_..,. Seabrook

2:5 COMMISSIONER AHEARNE: I am tracking the same 471 04 03 42

pv BWH point. Why just say iL is suspended_ ~until"?

2 MR. FARRAR: Pending our order. Yes. Because -

• 3 DR. BUCK: A firm-date situation is something* that

4 we need here, first of all, to give the proper expedition to

) ours, to give the proper expedition to the intervenors or

5 the applicants or anybody else who - wants to appeal, so that

I they have the normal time sufficient t6 put in their reasons

8 for a stay. And yet it gives us time beyond thst to really

9 look at the sections of the licensing b:lard decision that

10 cover the matters that we are - interested. in.

• 11 COMMISSIONER GILINSKY: I understand an interest 12 - in a disciplined process. But we have decided that it will 13 take a commission decision to have the license be issued,

14 and therefore I am bothered by an arrangement wh_ich would

- 1:S automatically turn

16 MR. FARRAR: When we come out with our decision

17 on the stay, if that is your judgment, we can. stay that for

13 such time as it takes you to look at it and either decide

19 COMMISSIONER GI-LINSKY: Lacking a commission

20 action, the license doesn 1 t issue, rather tnan the other way 21 around.

22 MR. FARRAR: You can set up our option in that

23 way. After we hand out our decision, it is still not

2-+ eff3ctive until you have had so many days to either sign off

25 or say you are not going to look at it.

471 04 04 43

pv BW-J-! COMMISSIONER GILINSKY: To say. that you are not 2 going to look at it, yes. That is something else.*

• 3 DR. BUCK: This is an automatic fixed period for

4 which it is stayed. The commission can extend it.

'.) COMMISSIONER GILINSKY: The commission should not

6 be in a position to extend it.** The commission, to issue the

j license, the comnmission has to take an action.

8 DR. BUCK: ThatJs right. But the action may be to

9 extend that. All we are trying to say. is letJ's put some

10 firm figure on here and not say we suspend this thing and

l I you've got to wait until all of these people have done

12 something. I think we have to be fair to all of the parties

13 in this case.

14 COMMISSIONER GILINSKY: Sure. It is good to have

- 1 :5 a device that will. lceep people on schedule. I don't think

]j we want one that --

17 MR~ FARRAR: Nothing happens without you saying

18 so. We can ouild that in.

19 COMMISSIONER AHEARNE: You have gone through the

20 imm3diate-effectiveness issue.

21 COMMISSIONER KENNEDY:. This is the basic*

22 assumption that disciplines begins at home.

23 COMMISS!O;\\JER AHEARNE: Assuming we now understand

24 the immediate-effectiveness part of that option, the stay 25 question, is the rest of the procedure then normal 471 04 05 44

pv BWH procedure'?

2 DR. BUCK: You leave the procedures pretty much as

• 3 they are.

4 COMMISSIONER AHEARNE:. You would not then have the

J option for - which was the bifurcated-

6 DR. BUCK: Bi furc at ion is cumbersome because, one,

I I am not at.all sure that anyone is going to be able to -

8 define a TMI i*ssue from any other; and second, I am

-) concerned about the fact that if you do define this there

10 are still other issues that are not TMI that may cause a

11 need for a stay.

12 COMMISSIONER AHEARNE: Then it seems that the

13 principal difference in this option from the normal or

14 previdusly normal previous approach,- is that here you

15 have the specific question of the immediate-effectiveness

- 16 being treated separately on a chain.

ll MR. FARRAR: We would do it if there are no

18 exceptions in the case.

19 COMMISSIONER AHEARNE: But my question: would you

20 therefore have as an issue that the licensing board would 21 hold its hearing on whether or not the immediate 22 effectiveness should be stayed?

23 DR. BUCK: No~ I would let the licensing board go

24 forward.

25 CHAIRMAN HENDRIE: Because you deal with those A 71 04 06 45

pv Bl"IH things in the stay request or lack thereof.

2 COMMISSIONER AHEARNE: I am asking a question:

• 3 would the licensing board ba establishing a record on that

4 as a specific issue?

i MR. FARRAR: I think a lot of that is how close

0 and how serious is the issue which is going to come out in I the ordinar~ development at the hearing anyhow?

8 DR.* BUCK: To me, a proper decision-I hate to

9 see a licensing board come in and say, uwell, we have made a JO decision, but we want to point out that we have some doubts l 1 about this one and this one,*11 and that may not be what the

12 intervenors or the applicants or somebody else is really

13 worried about. So we may get focusing on what the licensing

14 board comes out and says *11 We are flagging this issue because

- 15 we have a little trouble with it and have some. doubts ab:> ut

16 it, 11 and perhaps missing the real issue in the case.

17 MR. SHAPAR: Would you suspend the present rule

18 that gives the licensing board itself the right to suspend

19 immediate effectiveness for cause, or leave it in place?

20 MR. FARRAR: I would like to hear from them if

21 they have seen a good reason why their decision should not

22 only be sus;:, ended for 60 days but during the pendency of our

23 review or the commission review, yes, I would say so.

24 We might disagree~ or you might disagree.

2:5 MR. SHAPAR: You-would b~ using different

(:l

147 I 04 07 46 pv BWH standards: one for,you and one for them.

2 DR. BUCK: No.

• 3 MR. SHAPAR: You would be using -

4 MR. FARRAR:* The rules have di.f ferent standards.

'.) MR. SHAPAR: You would be using Virginia Petroleum

6 -~ they would be using good cause?

I MR. FARRAR: This would go back to the same

8 procedures. Otherwise, after we hand you our package on the

9 stay, you-then have complete flexibility to do whatever you

10 want. You can tell us to take out-yes, that is a very

11 serious issue we are concerned about, take that up first in

12 your review, or don t take it up at all because you, the

13 commission, are going to grab hold of it.

14 But we go on the assumption that the commission is

- l:i following the proceeding anyway. All they are doing, like

16 you said, following it, they are looking at it, they are

l i looking at som~ of the issues and so on~ They are really

18 not deciding a decision on this until we get the appeal

19 board s reasoning.

20 We didn t do that because we were tooting our own

21 horn, but because in reading this memo there seemed to be a 22 concern that you didn't want to be out there without us all

23 the time for whatever help you thought we could give you.

24 That seemed to come through from the memo that there was 25 some desire to keep us in the act, that we could be of some 471 04 08 4 7.

pv BWH I help to you. We thought this was the best way we could be

2 of rapid help in putting a nice, neat package in frcint of*

• 3 you so you know more about TMI issues than we do and grab

4 hold of it and do whatever you want to do.

'.) CHAIRMAN HENDRIE: What kind of time is required

6 to allow the stay request to be drafted and filed after an

7 initial decision?

8 DR. BUCK: 10 days under the present rule. Five

9 days after that for responses.

10

• MR. FARRAR: 10 days, but you have a problem with

11 mailing the d~cision to. the parties. Then I think they have

12 10 days to file a stay request and five days to respond.

13 All of that time adds up to close to a*month when you add in

14 your mailing times and service times. That gives us 30 days

- 15 to hold a quick oral argument and to write a decision. And

16 since we are not dealing with the merit~ of the issues here,

I I we can't give you the merits of all of these cases. We can

18 get you stay decisions. We can't get you the merits of all

19 of these.

20 COMMISSIONER GILINSKY: How long would it take if

21 you simply allowed the curr9nt process.to run its course and

22 suspended the immediate-effectiveness rule?

23 MR. FARRAR: Suspend immediate.effectiveness until

24 we complete our review, our decisions. Some of these things

25 are massive, and you are talking over a year. Others, you 4 71 04 09 48

pv BlA/H can get at in a couple of months, but some of them are tens

2 of issues. But a real serious case is at least a year.

• 3 MR. SHAPAR:

• The rule recommends 45 days.

4 MR. FARRAR: After the papers are all in, you are

'.) talking 30 and 60 days for a briefing from both sides, and a

6 IO, 00 0-page re cord for us to do the merits. It takes a long

7 for us to give you an opinion on it, whether a stay is

8 justified, can be done rapidly. But if you are. talking

9 about suspending immediate effectiveness while we do a

10 complete review of all of the merits of all of these cases

11 many of which I fear will hit at the same time-.- then,

12 if speed is any concern at all~ we can't do that.

13 DR. BUCK: The cases run to 10 to 20 thousand

14 pages of transcript.

I :5 COMMISSIONER GILINSKY: If it is a really serious

16 issue, then why shouldn't one be holding up the activity?

17 DR. BUCK: Exactly.

1,3 COMMISSIONER GILINSKY: If it is not a serious

19 issue

20 CHAIRMAN HENDRIE: But it takes them a year to

21 decide -

22 CO~Fv\\ISS I ONER GI LINSKY: I thought he said two to

23 three man ths.

24 MR. FARRAR: We can tell you in the 30 days, here 2:5 is a very serious issue, and you can tell us, then~ good, (l.

471 04 10 49

pv BWH grab a hold of--. nothing else in this *case justifies a stay

2 but this issue, go decide the merits of that right now.

• 3 COMMISSIONER GILINSKY: Suppose you simply dealt

4 with the appeals or dealt with-- just reviewed the

'.J decisions the way you do now.

6 DR. BUCK: If it wasn't serious, we would say so

j and refuse the extension of the stay.

8 COMMISSIONER AHEARNE: The question is, let us

9 assume that we suspended - go back to No. 3, option 3,

10 suspend immediate effectiveness. until the commission has

l l reviewed your decision. How long would it take you.to make

12 your decision complete?

13 MR. FAR~AR: All decisions that c~n possibly come

14 up? Well, if we only have one-case to hcindle, a few_

15 months. If several of these hit at once, we can""t promise

15 less than a year. If you let us single out the particular

l 7 issues, yes, you want a decision on issue X in this case,

18 yes, we can get you that fast.

19 MR. SHAPAR: The average on past cases?

20 MR. FARRAR: I can't give that off the top of my

21 head.

22 l11H. SHAPAR: Six to eight months, for an average?

23 0~. BUCK: About an average.

24 *MR.,= ARR AR: From time of initial decision.

2j MR. CASE: The stay racommendation would be *based

7 4 7 l 04 l I 50 pv BWH on appeal, or would you make a review on the record?

2 MR. FARRAR: I think you want a consensus, a

• 3 review of the whole record. Whether or not there are

4 intervenors in the case is not of concern on whether the

5 Three Jiile Isl.and issues or any*. others have b.een handled 6 properly, I take it. You are concerned about that in all cases, and not just cases in which there is citizen concern.

8 DR. BUCK: This is a little differeht from the

9 present operating requirement. We can step in on an

10 operating requirement and do a *sua sponte review. If there

l l are safety issues, we would certainly do so. I don't know

12 of cases that will. come up without interventions.

13 COMMISSIONER AHEARNE: That is a description-- I

14 guess I would like to hear from Bob, give him the unique

- 15 opportunity of speaking after the appeal board.

16 MR. LAZO: This has never happened before. From

I ' the point of view of the licensing.board, I would just say

18 that apart from option l we would have no objection to any

19 of these options. ~e could operate cocifortably under them.

20 O;'.)tion I, I think, would not be desirable to ask

. 21 our boards to write a recommended decision. A partial

22 initial decision or a full initial decision, fi~e. But we

23 would not recommend that you adopt option I, which contains

2-t a recommend~d decision suggestion.

23 As far as commenting favorably on the other 7471 04 12 51

pv BWH options, I personally think that options 5 and 6 would be

2.preferable because both of.them, in my view, would minimize

• 3 the disruption of the licensing process.

4 Of course, option 5 contains the provision of the

i board to make the immediate e+/-fectiveness decisions

6 initially. And the general counsel has not recommended that

i option.

8 Option 6, as modified here orally by the appeal

9 board would seem to make a lot of sense. I think it is a 10 goodi workable system, and it has a lot of flexibility.

11 COMMISSIONER AHEARNE: I think there is a vast

12 difference oetween the option that the appeal board h~s just 13 proposed and option 6.

14 MR. BICKWIT: I don.,.t think so. I think what they

- 13 are proposing is simply-to wait for *30 days and get some 16 kind of recommendation based on a review of the record, and

I I then we go about it as they would go about it in option 6.

13 COMMISSIONER AHEARNE: Option 6, the commission Jy was explicitly, I thought, going to review the cases to

20 decide Which pieces they take --- _ that we would take directly

21 to ourselves.

22 MR. BICKWIT: I understand that is what they are

23 proposing.

24 MR. FARRAR: We will tell you something befora -

25 but to help you in making the decision --

.471 04.. 13 52

. pv BWH MR. BICKWIT:* :You will. stilLmake -the.same.

2 decision as. under. option 6 to jus*t have.the benefit of the.ir *

• 3* advice.

4 COMMISSIONER AHEARNE: I would lfke. to be clear,

J because* I was hearing* a substantial di,fference. *.. The**.*

6 substantial difference I was heartng. was that.. in option --

.. the appeal board'-s proposal is.to exp*Jicitly' have the appeal

8-board go tl')rough -* take a qµick cut through the case and*

9 decide, make two basic decisions. fhe first decision:

10 should the iminedi.ate e*ffectiveness *be allowed or not? And

11 second: ai:-e there any particularly di.fficult.policy

12 quest ions, for example, that the co.mmission has not been

13 clear on? -*

• 14 *And those:*,two-.points would then,,come *dirett'ly. to

-([ftf 15 the commission on., the* rapid track. -for resolution. It makes

16 a *l_ot of sense._

17 And option 6~, it was more the c ommi ss-ion. wi 11 now.

13 look*.at the licerising board decision*there for across the

19 spectrum and decide w.hich issues. it w1she s to take unto. -

20 itself and which would go.to the appeal board.

21 22

23 24

25 CR 7471 53 WHITLOCK t-5&6 mte 1 l MR. BICKWIT: I misunderstood

2 MR. FARRAR: You can still do that under our

• 3 option --

4 COMMISSIONER AHEARNE: Now I understand it.

5 COMMISSIONER KENNEDY: It is presumed we.will, after

6 we have heard from you.

7 MR. FARRAR: Then you would grab it and say -

8 COMMISSIONER KENNEDY: Or before you go ahead with

9 your review, we want to give you further guidanc~.

10 DR. BUCK: Exactly.

11 MR. FARRAR: The ball is in your court to tell us

• 12 whatever you want to tell.us.

13 COMMISSIONER AHEARNE: I think there is an

- 14 inference on almost all issues, if it was one that you felt

15 there was guidance needed or we felt there ought to be

16 specific guidance given, we would give the guidance and

17 still have you people review it.

18 (Simultaneous discussion.)

19 COMMISS I*ONER AHEARNE: In Option 6 there was the

20 presumption that we would take it directly, and therefore the

21 appeal board would never look at it.

22 MR. BICKWIT: It was simply to make the decision

23 who is going to review what and what is to be immediately.

I 24 effective.

A.era! Reporters, Inc.

25 COMMISSIONER AHEARNE: But Option 7 was to bring mte 2 54

the appeal board in on those-elements on Option 6 that the 2 appeal board hadn't had a chance to look at, whereas on the 1* 3 appeal board's approach, even on those difficult policy

4 questions -- for example, I think -- at least the inference

5 I drew was that we would give guidance on that specific

6 policy point, and the.appeal board* would then review the case

7 with respect to that.

8 DR. BUCK: And we might ask you to give us guidance.

9 MR. FARRAR: Or you take the whole issue yourself.

10 COMMISSIONER KENNEDY: My understanding of your

11 _own feeling was that, for simple orderly procedure,. it would

12 make sense, after you had said, here are so~e is~ues on which

13 guidance is required, on particularly tough questions, the

14 preference would be, if you really had the opportunity to

15 author it, would be that we give the guidance and you go

16 ahead, complete the entire case, just for the sake of orderly

17 procedure.

18 DR. BUCK: Precisely.

19 COMMISSIONER AHEARNE: And I think there is less --

20 if I could take one other inference, I think there would be

21. much less of a probability that there would be issues which

22 would be finally settled by the Commission that would not have

23 had the appeal board's review under your approach than under

.. 24 Option 6.

A~eral Reporters, Inc.

25 DR. BUCK: Right.

rote 3 55

MR. BICKWIT: Under Option 6, all approaches were

2 available.

• 3 (Simultaneous discussion.)

4 DR. BUCK: The basic approach would be the orderly

5 procedure, but giving you the flexibility of doing something

6 about it if you wanted to.

7 MR. SHAPAR: It would not preclude the Commission

8 from closely monitoring the case and reserving an issue in

9 advance.

10 COMMISSIONER AHEARNE: Since Rosenthal.was the

1 1 originator of Option 4 in the paperj that is no. longer the

12 appeal board's --

13 DR. BUCK: He isn't here..

14 CHAIRMAN HENDRIE: It sounds to me like a reasonable

15 configuration, 6, that we have been discussing here.

16 COMMISSIONER AHEARNE:. I would.like to call it

17 Option 9.

18 COMMISSIONER KENNEDY: Option 6-A.

19 CHAIRMAN HENDRIE: There i:S a period of -- it would

20 turn out, I think we would have to use 60 days, because it

21 takes about 30 to grind the stay mechanism, and then you *need

22 30 to consider those and finish your fast review.

23 COMMISSIONER GILINSKY: What happens at the end

of 60 days?

25 CHAIRMAN HENDRIE: If it went this way, I would see rote 4 56

our policy statement saying the appeal board -- that the stay

2 procedure will go on under the following time limits, as per

• 3 such and such reg, and the appeal board would then make

4 recommendations to the Commission no later than 60 days after

5 the issuance of the initial decision as to how those stay

6 requests should be treated and what, if any, items from their

7 initial review of the case require special Commission considera

8 tion, et cetera, et cetera.

9 Now, what you don't want is them to have -- if that

10 comes out all right suppose you get a case in which you

11 don't have stay requests and the appeal board says, this

12 record is in the greatest shape you have ever seen, but you

13 don't want the license to go, wham, out on the sixtieth day,

14 without the Commission having done anything? So we have to

15 configure the thing, then, that the Commission has to at least

16 agree that it should

17 COMMISSIONER KENNEDY: Then when does the Commission

18 act?

19 DR. BUCK: After it.

20 COMMISSIONER AHEARNE: But the 60 days is a require-

21 ment on when the appeal board has to pass it to us.

22 CHAIRMAN HENDRIE: I think the policy statement

23 ought to put some limits on the Commission*action, or at

24 least announce our i~tention to act within a certain period.

Ace.ral Reporters, Inc.

25 COMMISSIONER GILINSKY: Would you have licenses mte 5 57

issue if the licensing boa~d doesn't act within a certain

2 period?.

• 3 MR. BICI<WIT: I am not sure the appeal board would

4 need 60 days.

5 MR. FARRAR: It takes 30 to get us the papers.

6 DR. BUCK: That is a good maximum. 'We would

7 obviously try to do it before that. And in that case, if

8 there was no stay situation, the Commission co.uld look at it

9 and act as soon as possible.

10 MR. FARRAR: I want to leave us the option, if we

11 come to writing this up formally, to extending that 60 days

12 itself, if we think the case is so tough that we can't get a

13 handle. I like the discipline of having a handle, but there

14 will be cases where it is so difficult tb get hold of it

15 you won't have a decision.

16 COMMISSIONER KENNEDY: I like the discipline of a

17 deadline, too..

18 MR. FARRAR: I would like the notion that we could

19 extend it. I don't think you want it going into.effect -

20 (Simultaneous discussion.)

21 DR. BUCK: I think we would like to option of being

22 able to come to the Commission and giving a reason and asking

23 the Commission to extend the deadline.

.a 24. COMMISSIONER AHEARNE: I guess I am basically in A~eral Reporters, Inc.

25 favor of that approach. But I would like to see it written mte 6 58

up before :I am really sure.

2 COMMISSIONER GILINSKY: What happens if the

• 3 Commission~- if you recommend that a stay be issued for some 4 longer period, and the Commission agrees with you? What

5

• happens then?

6 MR. FARRAR: We say, this stay has to remain in

7 effect pending our complete review of the case.

8 (Simultaneous discussion.)

9 MR. FARRAR: If you agree, then the license does

10 not issue until we've finished our review.

11 COMMISSIONER GILINSKY: Then the matter moves

12 takes its normal course, except immediate.effectiveness-is not

13 enforced.

14 MR. FARRAR: Except we would undoubtedly put that

15 case on the front burner as opposed to the back burner of

16 *. all of our load.

17 COMMISSIONER GILINSKY: Certainly.

18 DR. BUCK: I would guess. that a case would have not

19 more than one or two issues that we think we have to look at

20 the.merits, and assuming the licensing board has done its

21 job, you won't have any. But one or two issues might. And

22 this would have to go on to an expedited process.

23 COMMISSIONER GILINSKY: So it is a modified form

24 of Option 3, in that it is a selected application of the Ace eral Reporters, I n_c.

• 25 suspension of th_e immediate effectiveness rule.

" ---~-------------------------

mte 7 59

DR. BUCK: With an orderly base under it, I think a

2 less. cumbersome base than 3 has under it.

• 3 COMMISSIONER GILINSKY: It is a two-stage process.

4 Stage one is a decision on whether in this case immediate

5 effectiveness will apply or not.

6 MR. FARRAR: That was left out of Option 3. Option 3

7 seems to say no immediate effectiveness until the whole review*

8 is completed.

9 COMMISSIONER AHEARNE: And with a flavor of 4, in

10 that you would try to identify any major policy issues.

l l MR. SHAPAR: 3 is a flat suspension of the immediate

12 effectiveness rule until a final decision of the agency is

13 reached. This approacih would grant discretion to.the appeal

14 board and the Commission with respect to whether or not a

15 decision ought to be stayed. That is the big difference.

16 COMMISSIONER BRADFORD: Not to the appeals board.

17 MR. SHAPAR: They are making the recommendation.

18 (Simultaneous discussion.)

19 COMMISSIONER AHEARNE: I am not sure who ought to

20 be writing that option up. Let me ask general cou~sel. I

21 thought he ought to be writing it up.

22 CHAIRMAN HENDRIE: _ Counsel ought to have charge of

23 writing it up, with all kinds of assistance.and consultation

24 from the whole array of experts.

A.era! Reporters, Inc.

25 COMMISSIONER KENNEDY: We don't have to decide that.

mte 8 60

Otherwise we will be here the rest of-the afternoon.

2 CHAIRMAN HENDRIE: I was getting ready to take a

• 3 vote on that, actually.

4 (Laughter.)

5 CHAIRMAN HENDRIE.: *Think some about how much time

6 you really need. What.I would expect that one would write into

7 this draft policy statem~nt would be time from the issuance of

8 the initial decision by which the appeal board is directed to

9 get to the Commission with its package of recommendations and

10 comments, without*any particuJ_ar -- I wouldn't write, I would

11 presume, that you all go into the dungeon if that occurs, and

12 we would suspect that if you can't make. it, that you send along

13 a -note that you can't make it, we need another ten days, and

14 the Commission would say okay, as appropriate.

15 DR. BUCK: We feel now the 60 days is a reasonable

16 maximum time.

17 CHAIRMAN HENDRIE: What I have in mind is that after

18 your package comes to the Commission, I would also like to

19 see a commitment on the Commission's part to act within some

20 reasonable time. And I am beginning to be unhappy over

21 60 days here, and then the Commission -- what will the

22 Commission want? 10, 30,. 60? The first thing you know, we

23 have got four months.

.24 What.I am trying to keep in mind is, suppose I imagine Ace ral Reporters, Inc.

• 25 a case which comes through the hearing proces~ in a rather rnte 9 61

clean shape. There doesn't seem to be much hurrah about it.

2 The TMI issues are well dealt with. Let me talk about a

• 3 construction permit, so that we are not talking about some

4 thing that is immediately going to go into operation, but it

5 is years down the line.

6 Everybody agrees that the appropriate TMI~related

7 issues for a construction permit have been very adequately

8 dealt with here and so bn. It comes out of an initial decision

9 There are no stay requests. It is clean in that:*sense.,:* What

10 compulsory delays by this set of procedures are we building

11 into the process? It appears to me that in that case --

12 DR. BUCK: The no exceptions rule, no requests for

13 stay. We are aware of that. Within about 15 days -- I think

14 the request for stay, put in about 10 days, and you allow

15 about four or five days for mailing. Within 15 days -- in

16 the meantime, we would have been starting to look at the

17 record and know whether it is ciean or not. So that in that

18 case, we should be able to do it very rapidly.

19 CHAIRMAN HENDRIE: It will sti.11 be somewhere

20 between 30 and 45 days. How long should we give the Commission

21 to decide that it is --

22 COMMISSIONER AHEARNE: If it is an ideal situation

23 where everything is clean and everything, I would think we

24 ought to be able to do it in a week, if it is that.

Ace-eral Repor:ers, Inc.

• 25 COMMISSIONER KENNEDY: I would think we should. I mte 10 62

would predict we would take four. That is before the meeting.

2 CHAIRMAN HENDRIE: If it were nice and clean, we

• 3 could do it faster, Just as the guidance would say 60 days, 4 within 60 days after issuance, the appeal board would get its

5 package here. I would hope the policy statement could indicate

6 a time within which the Commission would hope to indicate

7 whether it was in effect releasing the proje~t, the license-

8 or the permit, or there were issues that it felt it had to

9 look further at.

10 I am not sure what time to specify forr that. A

11 week is certainly too short.

12 COMMISSIONER KENNEDY: I don't think so.

13 CHAIRMAN HENDRIE:: Two,. three, 20 days? I don't

14 know. Len?

15 COMMISSIONER KENNEDY: You can save yourself a trip.

16 I just said a week.

17 COMMISSIONER BRADFORD: One sets deadlines for the

18 difficult case, not the easy one.

19 CHAIRMAN HENDRIE: Or at least the median, and

20 hopefully, then, my clean case, which I tried -- would be one

21 in which in fact they could move faster than tne specified

22 time and we could move faster. It still looks like a couple

23 of months.

24 DR. BUCK: If there were no intervenors in the case A.eral Reporters, Inc.

25 to b~gin with, we wouldn't even have to wait the ten days.

rnte 11 II 63

CHAIRMAN HENDRIE: That is possible, but not I

2 probable.

I*

3 DR. BUCK: Very improbable.

4 COMMISSIONER GILINSKY: The time limit for the

5 Commission has got to be a goal.

6 CHAIRMAN HENDRIE: Let's discuss that a minute. If

7 we allowed a little bit more than a v~ry.short time, would

8 we be willing to write the guidance to say *that the license

9 will issue without further order of the Commission, and

10 require ourselves to take an action?

11 COMMISSIONER GILINSKY: I would require the

12 Commission to take positive action and to take responsibility

13 for the license.

- 14 MR. BICKWIT: I don't think you want to require thq_t

15 in the instance where the appeal board recommends that it

16 shouldn't issue.

17 MR. SHAPAR: It would conflict with the temporary

18 statement, anyway.

19 COMMISSIONER KENNEDY: If that is assumed by the

20 Commission, if that responsibility is on my shoulder, I am

21 here to say I can do it in a week. If I need more than that,

22 I will request my colleagues to authorize it.

23 CHAIRMAN HENDRIE: I think that may be a fair way

24 to go about it.

A ederal Reporters, Inc.

• 25 COMMISSIONER GILINSKY: That's fine. I would hope

I mte 12 64

that we can act rapidly. But the question still remains:

2 What, if for some reason or other, the Commission fails to

• 3 act? What happens then?

4 COMMISSIONER KENNEDY: I think the Commission gets

5 together, explains it is unable to do so, ~xplains to itself

6 whyi and concludes what it does next. As I said earlier~

7 discipline. begins at home.

8 COMMISSIONER AHEARNE: I would agree with the

9 discipline beginning at home, and I would come on Vic's side.

10 I think if we don't live up tp our responsibility, the way I

11 would rather have it coming down is that the license hasn't

12 been-issued yet.

13 COMMISSIONER-KENNEDY: I am suggesting the burden

14 is upon us to stop it, not just sit there and do nothing.

15 COMMISSIONER AHEARNE: The burden is on us to start

16 it.

17 COMMISSIONER GILINSKY: I am unclear what

18 Commissioner Kennedy is proposing.

19 COMMISSIONER KENNEDY: I am proposing that we set

20 a reasonably short period of time.* I don't mean so short

21 that we would.be unable to do it. But.I mean reasonably

22 short in the sense that we would be comfortably done if we

23 placed highest priority on it, which it seems to me it A 24 deserves.

' Acaeral Reporters, Inc.

25 Now~ having done that, if at the end of that period mte 13 65

or close to the end of that period,:: -one or all of. us concludes

2 that he is unable to reach that conclusion:-I don't think any

• 3 of us has been unreasonable in this regard up to now, and I

4 think what we ought to do then* is indicate that, request

5 additional time, vote to do so, and provide the additional

6 time, and hold the license for that period.

7 COMMISSIONER GILINSKY: What happens if the

8 Commissioners don't get together, for one reason or another?

9 COMMISSIONER KENNEDY: At that point, I think the

10 license issues. If the Commission cannot -- if the Commission

11 cannot at that time conclude, the thing will sit here forever.

e-5 12 I suggest to you a review of the record on export licenses.

13 COMMISSIONER GILINSKY: We could have decided to do

14 it that way, but it seems to me we decided to do it differently

15 COMMISSI,QNER KENNEDY*:* I am suggesting we do not

16 have to repeat error.

17 COMMISSIONER GILINSKY: In this particular instance,

18 the question of Commission review of licenses, it is my

19 understanding that we had agreed that a license would not

20 issue without a positive Commission action. That*action could

21 be simply to say that you a re perfectly satisfied with the

22 decision of the lower board. But it does seem to me to call.*

23 for positive action on the part of the Commission.

.iia 24 COMMISSIONER KENNEDY: For that very reason, if no A-deral Reporters, Inc.

25 other, there should be some stipulated time in which.we are r*

rote 14 66

going to take that action. We ought to have the same kinds

2 of discipline that the federal courts put on themselves.

• 3 COMMISSIONER GILINSKY: I hope you dci.n't understand

4 me as arguing for dragging out this process. I do want to

5 be clear on what happens if that time limit is exceed~d. It

6 seems to me the only course that is consistent with our

7 previous ciecision is to say that the license*does*not issue

8 until the Commission has acted.

9 COMMISSIONER KENNEDY: I do not consider that

consistent with our previous decision.

1 1 MR. SHAPAR: The policy statement does say,

12 Commissioner --

13 COMMISSIONER KENNEDY: I realize that. I know

14 exactly what the policy statement says. I am just telling

15 you that my interpretation, my view of what the policy state

16 ment says is the Commission has an obligation, and I am

17 suggesting that we ought to undertake the obligation freely

18 and on the record, and we ought not to sit here ambiguously

19 leaving to whatever the course may be whether or not we are

20 going to come to grips with an issue. And I think we can

21. do it, I think we should do it, and I think the public's

22 interest demands it.

23 That's the end of my statement on.the subject.

24 Those are my views. Whenever you are ready to vote, I am.

A eral Reporters, Inc.

• 25 CHAIRMAN HENDRIE: We are not going to be ready to mte 15 67

vote-until we get~- until we get a draft worked out, and that

2 will be another time.

• 3 I think the difference on this particular point is

4 fairly -- going to be fairly easily dealt with in terms of

5 what language one would use one way or the *other. That is,

6 you can write it either way and you'd know very simply what

7 the language would be to make it work the other way.

8 I think I would prefer to defer the decision on

9 which way it comes up until we can see the draft policy

10 statement. I think we have gone reasonably as far as we can

11 go here. We are just about an hour -- half an hour past my

12 hoped.,-for time.

13 On the other hand, we have unanimously approved the

14 interim statement, which I think is going to be a very helpful

15 piece of advice to get some*things moving that need*to move.

16 I will look for a place to schedule in the next

17 meeting to deal with the draft that is forthcoming when I

18 know what your best estimate is.

19 MR. BICKWIT: A couple of days.

20 CHAIRMAN HENDRIE: In no case longer and a best

21 effort to go less than.

22 John?

23 MR. HOYLE: We rave a short week-next week.

24 CHAIRMAN HENDRIE: Between depositions and the other A.era! Reporters, Inc.

25 things we have to do, Thursday morning? I will talk to the mte 16 68

secretary and see if we can get this in. Thursday might be

2 a possibility.

• 3 DR. BUCK: Are we going to review that between now

4 and then?

5 MR. BICKWIT: Yes.

6 MR. FARRAR: I don't think there are any cases

7 pending that are waiting for this rule right now. I would

8 like to see that we have it written properly and with all of

9 these varying concerns taken care of, rather than rushing

10 into something that is rough.

11 DR. BUCK: They are going to write it.

12 CHAIRMAN.HENDRIE: I presume when we meet that you

13 will be here to.help us with the discussion.

14 MR. FARRAR: All right.

15 (Whereupon, at 4:10 p.m., the meeting was adjourned.)

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24 Ace.rat Reporters, Inc.

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