ML22230A136
| ML22230A136 | |
| Person / Time | |
|---|---|
| Issue date: | 07/27/1979 |
| From: | NRC/OCM |
| To: | |
| References | |
| Tran-M790727 | |
| Download: ML22230A136 (96) | |
Text
I RETURN TO SECRETARIAT RECORDS NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
PUBLIC MEETING DISCUSSION OF TECHNICAL ISS UES IN RESTART OF TMI-1 Place -
Washington, D. C.
Date_
Friday, 27 July 1979 ACE - FEDERAL REPORTERS, INC.
Official Reporters 444 North Capitol Street Washington, D.C. 20001 NATIONWIDE COVERAGE* DAILY Pages 1 -
94 Telephone :
(202 ) 347-3700
9199 1
DISCLA.I:MER This is an unofficial transcript 0£ a meeting of the United States Nuclear Regulatory Cormnission held on Friday, 27 July 1979 in the Cormnissions's offices at 1717 H Street, N. W., Washington, D. C.
The meeting was open to public attendance and observation.
This transcript has not.b~en reviewed, corrected; or edited, and it may contain inaccu:;-acies.
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.
e5199 2
3 4
5 6
7 8
9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION-PUBLIC MEETING DISCUSSION OF TECHNICAL ISSUES IN RESTART OF TMI-1 Room 1130 1717 H Street, N. W.
Washington, D. C.
Friday, 27 July 1979 The Commission met, pursuant to notice, at 9:50 a.m.
10 BEFORE:
11 DR. JOSEPH M. HENDRIE, Chairman 12 VICTOR GILINSKY, Comm~ssioner 13 RICHARDT. fENNEDY, Commissioner 14 PETER A. BRADFORD, Commissiuner 15 JOHN F. AHEARNE, Commissioner 16 ALSO PRESENT:
17 Messrs. Bickwit, Ostrach, Case,Vollmer, and Chilk.
18 19 20 21 22 23 24
' Ace-Federal Reporters, Inc.
25 2
619901013
.c 2
3 4
5 6
7 8
9 10
.I l 12 13 14
- 15.
16 17 18 19 20 21 22 23 24 25 3
P R O C E E D I N G S
< 9.: 50 a. m. )
CHAIRMAN HENDRIE:
fhe next item we turn to is a continuation of. th.e discussion of the order, further order, in the matter of Three Mile Island Unit 1.
LetJs see.
The General CounselJs office distributed late yesterday a memorandum with. some options and recommended words t6 go with the options for several of the items on the list of matters that we need to agree upon for the 301 order and kindly provided a list of matters remaining on the last page o.f the memorandum.
And he recommends that we look at these recommendations,.and we also have the memo from the CounselJs office of July 25, in which he packaged current draft language on the order together and suggested we work from that as a base draft as we get started.
Do you, Steve, want to march us through your production of last night?
MR. BICKWIT:
The first section of the mem.orandum recapitulates some of the discussion that we had on Wednesday.
IJd l.ike to add.one modification to that.
We talked about a required statuary requirement for a hearing on the order.
The way thatJs phrased on page
.one could be construed as overly broad.
There is a requirement on the order under normal circumstances.
Under a typical order, that statutory requirement, in our view, would not extend for want of
61.0l 02 mgc 2
3 4
- )
6 7
8 9
JO 11 12 13 14 15 16 17 13 jy 20 21 22 23
)'
-'+
25 4
a better concept, toughening up the order, making more stringent the order.
On a typical order, you would provide that certain things had to be done and the statutory requirement which would allow the licensee and other interested parties to come in and contest the order would allow a trimming back of the order and perhaps a questioning of procedural legal q u e s -c ion s a s so c i a t e d w i t h t he o rd e r
- I t w o u l d no t a 11 ow, i n the typical situation, an intervenor to come in and say that a whole lot of other things ought to be done in this order.
However, the kind of order that you appear to be moving toward here would have as an issue in here not only the necessity of the-actions re~uired, but the s~fficiency to the actions required.
Under those circumstances, the scatutory right which is in che intervenor to come into the hearing would extend to all the issues in the hearing.
And one of those issues would be the sufficiency of the actions required.
Therefore, the scatutory right, in this instance, would extend to applications that the order should be made more stringent.
In further elaboration of the introductory sections, I just think its helpful for the discussion to try to keep in mind, as difficult as it may be, the issues of what are the procedures we're talking about with respect co
r 61.01 03 mgc 2
3 4
5 6
7 8
9 10 l I 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5
contesting the order?
What are the procedures we're talking about which are required by the terms of the order?
What are the procedures we're talking about with respect to the listing of the immediate effectiveness of the order?
And to try to keep those three kinds of questions separate.
What we suggest with respect to review process is that based -
CHAIRMAN HENDRIE:
I'm sorry.
I was drifting, and it's still early.
I apologize.
\\Alould. you just say the three again?
MR. BICKWIT:
Sure.
What proceduies are required to contest the order?
I.e, is there to be a bearing on the order which will evaluate that order and lead to a changing of that order?
That's question one.
Question two is:
what procedures are required under tne terms of the order?
What procedures does the order mandate pursuant to its terms, which must be accomplished in fulfi~lment of the requirements of che order?
I.e., if there is to be a finding of the Commission under the order that it is satisfied, that certain things have been done, what procedures are required by the Commission prior to reaching that decision?
And the third set of issues is what procedures are required witM respecc to the listing of the immediate effectiveness of the order?
All of those procedures can be
6199 OJ 04 le I
2 I -
3 4
5 6
7 8
9 10
.l l 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6
separate and distinct.
And I think by way of background, it/s important to note that the first, the answer to the first question comes from the statute.
The answer to the se~ond and the third question does not.
And there is total freedom with respect to the second and third, with the one caveat that with respect to the third~ you will have to base any finding on whether to list immediate effectiveness on the substantitve determination of whether the public health, safety, and interest require that the order be immediately effecti~e.
What we have suggested with respect to review process is that we allow the statutorily required review process to run its course.
But, that we do not insist on its running its course prior to the restart of the facility, that we allow the listing of immediate effectiveness to take place prior to the running of the courts of those procedures, and that it is to be based on a rather short and expedited review of the record based on motions to come in immediately after certification by the staff that the actions required, if such actions are required, have been completed.
And that the Commission move to evaluate the Board/s findings and the staff/s certification as a basis for listing the immediate effectiveness of the order.
And that that is a di.fferent judgement, the judgement on listing
r 2
3 7
- i. mm e di a t~ e f f e ct i v en e s s i s a d i ff e re n t judge men t f r om the judgement it will ultimately have to make with respect to its final decision on the order, i.e. it~s final decision on 4
the evaluation of the order.
5 We believe a substantial period of time is 6
possible, say, depending on certain factors.
One of those 7
factors is, when Ls the completion of the ac_tion required by 8
the Board likely to take place.
If it's likely to take 9
place and the staff is likely to certify it has taken place 10 far on down the line after the conclusion of the hearing by I I the Board and the writing of its initial decision, then jt's 12 highly unlikely there will be time savings.
13 Another factor to be considered is:
Is there 14 likely to be an amendment requiring a hearing?
An amendment 15 involving significant hazards, considerations?
If there is 16 to be an amendment and a hearing is to be statutorily 17 required, it is possible that that can be considered a 18 separate proceeding.
That could terminate or lead to the JY termination of this proceeding.
But most likely, I would 20 assume it wo~ld get wrapped up in this very procedure, and 21 under those circumstances, the finding of the amendment 22 would have to be made by the Commission after full review.
23 24 25 And you would save no time at all by this procedure.
You would have to go through the full review process.
So, with those qualifications, we wouldn,t --
61.0l 06 wgc I
I 8
CHAIRMAN HENDRIE:
ItJs not so clear that an 2
amendment will be n.eeded.
3 4
MR. BICKWIT:
That's true~
CHAIRMAN HENDRIE:
It hasn't apparently in other 5
cases.
6 MR. BICKWIT:
I put this question to Ed, and his 7
answer is consistent with each answer, each previous answer, 8
but it's always the same.
The answer is: *11 I don't know.*11 9
CHAIRMAN HENDRIE:
On the subject of review which JO we heard a little bit about the other day then, the ll
- recommendation is on page five of the memo.
And it's simply 12 13 14 a note that if there is an initial decision which favors the restart and so on and so on, the Commissiorr will entertain motions.
Now then, Peter, that sounds -
at least it has 15 the 1vord 11motions 11 in it.
So, it, to that degree, sounds 16 somewhat closer to what you were saying the other day.
17 CCH,IMI SS I ONER BRADFORD:
I th i n k th a t i s w ha t I w a s 18 saying, but I expect thac's your prerogative to judge better 19 than mine.
I think this is very close to what I was saying 20 the other day.
Let me just be sure, though, that the 21 phrase, *11 this order" -- that the recommendation, when it., s 22 outlined on page three or thereabouts, is a little clearer 23 than the language here that the phrase, n this order-11 24 refers to the order in which this paragraph would be 25 contained and not the order of the Licensing Board.
The
61.01 07 mgc -
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9
immediate effectiveness rule is, in fact, not in effect.
CHAIRMAN HENDRIE:
Where it says:
11 on whether this order shall remain immediately effective-11 ?
COMMISSION ER BRADFORD:
Yes.
CHAIRMAN HENDRIE:
All you're talking about there is the ---
COMMISSIONER BRADFORD:
In the order we"re talking about today.
MR. BICKWIT:
The order in which this language was CHAIRMAN HENDRIE:
Was just the shutdown?
MR. BICKWIT:
The order weJre discussing here on the table.
CHAIRMAN HENDFHE:
Furthermore, it won,,t apply to the whole thing, would it? Just to the shutdown portion?
MR. BICKWIT:
That's true.
It says, effec ti vene ss -
11 immediate effectiveness* of this order or provisions of this order 11 *
\\*'{hat is obviously meant is a shutdown..
CHAIRMAN HENDRIE:
Could it extent to J1immediately effective*", if we make the long term upgrades immediately effective?
Is there any -- do you need any further language?
UR *. B I C KW IT :
You,, re a l ways fr e e to l i st i mm e di ate effectiveness.
That's not what we had in mind here, but
'1.01 08 mgc 2
3 10 there's no reason that we couldn't do that.
COMMISSIONER GI LINSKY:
Wouldn-" t we entertain a motion in any case, whether or not you had this language in 4
the order?
5 MR. BICKWIT:
Yes.
6 COMMISSIONER GILINSKY:
So, what is this all 7
about?
8 9
MR~ BICKWIT:
It invites them.
COMMISSIONER AHEARNE:
Could I ask whether there 10 is an option of the Board?
I would guess it would reach one-JI of two conclusions.
It would either reach a conclusion that 12 it has to stay down, and it might be until additional things 13 are* done, or it would say it can go up, given the two things 14 are done, if it's going to stay.
15 16 COMMISSIONER KENNEDY:
Those are the same things.
COMMISSIONER AHEARNE:
Well, perhaps, it depends 17 upon the items.
Now, if it reaches the conclusion it's 18 going to stay down, that's the condition that it-"s in, so it 19 doesn't make much difference.
I guess we go through our 20 normal review process.
If it reaches the conclusions that 21 it's going to go up, is it possible to say that that 22 immediate effectiveness of that action would be stayed for 23 30 days during which time there would be this JO day, 7 day 24 option that you outline here, which would then give us two 25 weeks to review that?
,61.01 09 mgc 2
3 l I MR. BICKWIT:
Yes.
You can do that.
These time periods are just --
CHAIRMAN HENDRIE:
That is, make the Board 4
decision immediately effective, but with a 30 day -- some 5
number of days after the initial decision?
6 COMMISSIONER AHEARNE:
Right.
7 COMMISSIONER KENNEDY:
Unless the Commission were 8
to take action to stay it further.
9 10 COMMISSIONER AHEARNE:
Yes.
MR. BICKWIT:
That pushes much harder in the ll direction of bringing it up than this language.
12 13 14 time?
CHAIRMAN HENDRIE:
What would be a reasonable COMMISSIONER KENNEDY:
At least it pl1shes much 15 harder to bring the Commission to a decision in this matter 16 than this language.
17 18 intention.
19 20 COMMISSIONER AHEARNE:
Yes.
That 1vas the CHAIRMAN HENDRIE:
~hat would you want as a time?
COMMISSIONER AHEARNE:
Well, if his approach -
I 21 have no feeling at a.ll for how long it would be appropriate, 22 the initial period.
Tne General Counsel had su9gested l O 23 days and 7 days, which would be -- which would then say that 24 the 17 days after the initial order, we could have all of 25 the information in front of us.
5199 0 I I 0 le 12 And so therefore, two weeks seems to be a 2
reasonable time to do that.
That's why I said 30 days.
3 CHAIRMAN HENDRIE:
Seems to me, if I can bring 4
myself to go with page five, I could certainly go with you.
5 Other comments?
6 COMMISSIONER GILINSKY:
I guess I missed the 7 7
days.
Where does that come from?
COMMISSIONER AHEARNE:
That's on the bottom of 9
page three.
10 CHAIRMAN HENDRIE:
That's where it's being II discussed.
Thr_ee.
You have a problem on mailing times, so 12 the Commission would not end up having 30 minus 17
- 13 MR. BICKWIT:
Is it 30 days froni staff 14 certification or from the Board?
15 COMMISSIONER AHE.t\\RNE:
1/'Jhat?
16 MR. BICKWIT:
30 days from the Board issuance or 17 from the staff certification, I think.
18 CHAIRMAN HENDRIE:
I think whichever is later, 19 because they're both essential.
20 MR. BICKWIT:
I would assume the staff 21 cer~ification.
22 23 24 COMMISSIONER AHEARNE:
It's 30 days, I thought, from the point of when you started your 10 dGys.
(itR. BICKWIT:
Oh, okay.
Vie started our 10 days at 25 the staff certification.
l I 2
3 13 CHAIRMAN HENDRIE:
Yes.
COMi\\U SS I ONER KENNEDY~
The way your language on page five is written, the presumption is that the staff 4
certification follows the Board's decision.
5 6
7 MR. BICKWIT:
Yes, whichever is later.
COMMISSIONER AHEARNE:
Yes.
MR. BICKWIT:
I think it almost certainly would 8
have to.
Staff is -
well, I guess it~s conceivable staff 9
could start certifying that certain things had been done, 10 even before the Board had insisted that they be done.
l l COMMISSIONER AHEARNE:
It..,s whenever your 10 days 12 started.
I was basing it on -- you said it would take 10 13 days to do this, 7 days _followir:ig.
Then I was looking at 14 giving us two weeks.
15 MR. CASE:
10 days starts.
Then, after you get 16 your motion in, 10 days.
Then you have to have a reply 17 within 7, but it's presumably 10 plus mailing time that you 18 add these 7 to, I think, although that's more your business 19 than mine.
20 So that would take three or four -- what you 21 normally a-1low -- three or four days,. something l i k~ that, 22 five for the mails these days.
23 So that five would also come out of the 24 Commissioners' cime.
25 co;;MISSIONER KENNEDY:
Five twice.
61.01 12 mgc 2
3 4
5 6
7 8
9 10 l l 12 lJ 14 15 16 17 18 19 20 21 22 23 24 25 14 COMMISSIONER GILINSKY:
S.eems like *11e"re getting down into the fine structure.
CHAIRMAN HENDRIE:
Yes.
Yes.
MR. OSTRACH:
It must be received between 10 days, it must be received within 7 days.
COMMISSIONER AHE.ARNE:
Perhaps your off ice can sink to that level and work out those details.
CHAIRMAN HENDRIE:
Rise to it.
COMMISSIONER GILINSKY:
Could I ask you, how do you distinguish between appellate review of the merits of the Board"s decision and a determination of the public health and safety or interest no longer requires that this order remain* in effect?
At least i t"s an immedi::ite effectiveness; no longer remains in force.
Wouldn" -c you have to reach the merits to make that decision?
MR. BICKWIT:
No.
There are different standards.
When you decide whether to make an order immediacely effective, you are making a different decision from your final decision on whether that order is any good.
You are making a decision that you are so worried about circumstances that you want to bring that pl ant down
- ,11 hi 1 e you are decidin-; '>'fhcther the order is any good.
The test is different as to the pr2cis2 delineation of the differentces.
It"s difficult to
61.01 13 mgc I
~
2 3
4 5
6 7
8 9
10 I I 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 quantify, but it's clear to all that it's a diff~rent task.
COMMISSIONER KENNEDY:
That's true in making it --
I can understand it when you're making it immediately effective.
Yes, I have shared Commissioner Gilinsky-"s question, which I think is:
how do you differentiate when you ara lifting the immediate e+/-fectiveness?
When you are then saying it can restart?
CHAIRMAN HENDRIE:
All you have to do is come to a place where you say :
"Gee, I'm not sitting up all night by the telephone anymore expecting disaster; I've concluded that its --"
2 16 COMMISSIONER BRADFORD: I asked at the last meeting what the standards were that one would apply and_ I think Len 3
said, rightly, that that was something we would have to decide 4
5 either at the time we have to the review or sometime before then.
6 But I think your response then was there isnjt a 7
clear standard for this decision in this situation beyond 8
what we thought public health and safety required.
9 10 ItJs not a petroleum-type problem.
COMMISSIONER GILINSKY: It seems to me in our Jl previous order we agreed that we would, ourselves, make the 12 final decision the way that plan operates.
13 14 15 In effect, weJre deciding whether thatJs adequate protection for_the public.
And it seems to me that_ y'ouJve 'got to reach the merits of the case to do that.
16 JJm all for doing -1t expeditiously and effeciently.
17 I donJt reaily see why it ought to taks four months.
18 But I don_Jt think that you can separate that question 19 from the basic health an~ safety issues in the case. Or the 20 quest-1ons of public interest.
21 MR. BICKWIT.: YouJre go-1ng to be thinking of health 22 and safetyo 23
- First, in respons_e to your question, I want to say 24 that I think the standard is the same whether you decide to 25 impose immediate effectiveness and lift immediate effectiveness
6199.02.2 17
/'
I donJt. think it-'s a different question.
2 Then, in response to yours, I would say that, 3
obviously, public health and safety are relevant.
But it is 4
a different standard.
5 COMMISSIONER KENNEDY: Is it fair to say that in the 6
. f.irst instance -- that is,. the lifting of the immediate 7
effectiveness,.th.at is, allowin9 it to restart while the 8
quest.ion remains under consideration -- is a provisional 9
decision based upon one-'s initial perception that~ in fact, 10 public health and safety can be adequately protected?
.11 MR. SICKWIT.: That-'s right.
12 COMMISSIONER KENNEDY: While the broader questions 13 for a permanent arrangement can continue to be litigated?
i4 MR. BICKWIT: Yes.
15 CHAIRMAN HENDRIE: There are also a number of 16 elements in this order and that will come out eventually in 17 a board decision and in a commission decision, which.are of 18 a longer term character.
19 COMMLSSI.ONER GILINSKY: I appreciate that *.
And I 20 wouldnJt say that weJd have to look at every last item in 21 the board-'s decision and there may be a number of questions 22 which the commi.ss.ion would sti 11 have to review.
23
.But you wouldn.,t regard it as really very important 24 on whether the plants operate or not.
But it seems to me 25 you have to make a bBsic statutory finding and which we have
6199.02.3 gsh -
18 taken up upon ourselves to make.
2 And it may be that having followed the case, having 3
confidence in a board, you may feel that the moment they 4
make their decision, youJve got -- youJrs able to make your 5
own finding.
6 But I. think you do have to make it on the basis 7
of the fundamental -- evaluation.of the fundamental safety 8
questions in that proceeding.
9 COMMISSIONER KENNEDY: But you can make that 10 provisionally, subject ta a further review on your part if JI litigation continues.
12 COMMISSIONER GILINSKY:
.If you have sufficient 13 con~~dencs.
14 C{JMM1-SSIO.NER KENNEDY: Yes.
15
- cHAIRMAN HENDRIE:
I *believe that we have Bui.It in 16 to~ at least a portion of the things that are considared in 17 this proceeding -
is it an 80-day, do I recall correctly, 18 time for all the parti.es to provide briefs?
And-'then the 19 commission can consider those_ before it makes its findings.
20 So itJs a fairly extended time built in before a 21 final order of the commission could issue, lifting irnmediate 22 effect.iven.e.ss of a shutdown, a juqgment which you obviously 23 have to base on some level of assessment of the health and 24 25 safety as a way to avoid being tied t6 an extended period.
John, I like your 30 days. Can I propose it and sse
6199.02.4 gsh -
2 3
4 5
6 7
8 9
JO J 1 12 1 3 14 15 16 17 18 19 20 21 22 23 24 25 19 where the weight of sentiment lies up and down the table?
CCHiMI.SSJONER GILINSKY: Could we have that proposal again?
CHAIRMAN HENDRIE: Could you outline it again?
COMMISSIONER AHEARNE: You--'re proposing it?
CHAIRMAN HENDRIE: Well, let--'s see.
COMMISSIONER GILINSKY: Another sleepy commissioner.
COMMISSIONER AHEARNE: What I was do.ing was accepting LenJs 10 and 7 days and saying that the decision of the board, if the board were to reac.h a conclusion to allow restart, that any immediate effect_iveness of that could be delayed for 30 days.
And then, the appropriate words, you know, cousel could construct.
And whethe_r it*"s 30 or 30 plus mailing
- times* is something he would have to work on.
But the issue would then be that we would go through this process heJs identified.
What--'s the right word --
petition or make a motion, whatever it is, to us to overturn that immediate effectivene_ss.
COMMISSIONER GILINSKY:
Wait a minute.
The immediate e.ffectiveness is of the shutdown order or of the board.order.
CHAIRMAN HENDRIE: A better way to phrase it" would be --
COMMI.SSIONER AHEARNE ~ The removal.
CHAIRMAN HENDRIE: The immediate ef.fect.iveness of
199.02.5 gsh -
20 this order meaning. this order, to put it very simply.
2 COMMISSIONER KENNEDY:,~hat it means is a board 3
action that would suggsst that restart was authorized, would 4
5 not be effective for 30 days plus something.
CHAIRMAN HENDRIE: Would become effective in 30 days 6
unle.ss --
7 COMMISSIONER KENNEDY: Unless the comm i ss.ion acted.
8 COMMISSIONER GILINSKY: It seems to me 9
CHAIRMAN HENDRIE: Furthermore, it has to be phrased 10 to make clear that the decis~on does not constitute final Jl commission order and finding on the cass otherwise.
12 COMMISSIONER GILINSKY: That seems to me to 13 contradict what essentially we agreea to in the previous 14 1 5 order.
COMMISSIONER AHEARNE: Except, no, because that 16 would have -- it would come to us.
And it essentially gives 17 us that period of time.
18 COMMLSSIONER GILINSKY: Where you-'re saying barring 19 commission action, such an order on the board-'s part would 20 become effective.
21 C0MMLSSI0NER AHEARNE: The words that "barring 22 commission action" t.o disapprove.
23 COMMISSION~R GILINSKY: Right.
But we have said 24 that.
25 COMMISSIONER AHEARNE: Which is equivalent, though,
6199.02.6 gsh -
21 to our approving it.
2 COMMISSIONER GILJNSKY: Well, in that candid sort 3
of way, I wouldnJt regard it as being -- as conforming to 4
our previous ordsr.
5 CHAIRMAN HENDRIE: Look, the only thing which is 6
propos.ed that could go in 30 days, unless the commLss ion 7
said no, would be the lifting of the immediate effectiveness 8
of this order that we work on now and _nothing else.
9 Okay?
ThatJs the only thing which you would say JO will take place 30 days after an initial decision of the board J 1 or staff c.ertification,. whichever is later.
12 COMMISSIONER GILINSKY: We.11, you--'re saying that 13 should the board decide a plan can start operating 14 CHAIRMAN HENDRIE: If the board says shut down and 1 5
- don-" t start, th.en yo u c a n s t i 11, in 3 0 days, l i ft the 16 immediate effectiveness of_this order we work on today.
17 And the plant continues to stay down.
18 COMMISSIONER GILINSKY: Should the board say you 19 may start operating, then barring commission action, within 20 a 30-day period, the plant can start operating.
21 CHAIRMAN HENDRIE: Yes.
22 COMMISSIONER GILINSKY: But we said in our previous 23 ordar that an operation would depend on a decision on the 24 25 part of the commission.
You can regard no action as a decisiono
6199.02.7 gsh -
2 3
4 5
6 7
8 9
10 JI 12 13 1 4 15 1 6 17 18 19 20 21 22 23 24 25 22 CHAIRMAN HENDRIE: I regard it, indeed, as a decision of the commission~ but only with regard to the immediate effectivene.ss of this order and not a commitment on all of the other issues or, indeed, subsequent shutdown of that, as determined by the commission to be appropriate.
COMMISSIONER GILINSKY: I interpret our previous order as saying.it takes commission action to turn a plant on.
ThatJs what I thought it to be.
COMMISSIONER BRADFORD: There--'s another problem with that 30-day action thatJs been taken situation.
Suppos.ing for some reason that the commission has itJs hard to see a 2, -2, l decision on that.
But supposing the comm.ission is de'adlocked.
You then would have a situation in wpich restart. could -occur simply because'the commission*
was unable to take action.
CHAIRMAN HENDRIE: I guess I would regard that as commission action, too, in a sense.
And it seems to me that if a proceeding has gone along as far as I suspect this on.e will have gone, gone as long as this one has, by the time it comes to a board decision and staff certification, that everything-' s b.een done, it seems to.me that the 1 ic.en see has a csrtain interest in the matter and is entitled to some minimal a.spects of, you know, fair play and, indeed, if the Weight of the proceeding and the boerj decision is that restart could go ahead from a public health and safety
~199.02.8 gsh -
2 23 standpo-1nt, I. think that there may be a certain amount of elementary Justice in not allowing that to be defeated because 3
the comm-1ssion is divided and unable to reach a decision one 4
way or another.
5 That is stalled out. And I guess it Just depends 6
on whether you prefer to see the licensEeJs interests either 7
suffer or not suffer as a result oi a commission inability 8
to decide.
9 COMM I SST.ONER GI LINSKY: I wasnJt suggesting permanent JO deadlock.
But 30 days it begins to schedule filing papers,
.11
.5 daYs, or whatever it is, _in compliance with the mails, 12 you r.eally would allow the commission only,to have taken a 13 fairly preliminary look at the qusstion.
14 And that matters that might.be worked out over a 15 longer period of time migh£ well not be resolved.
16 CHAIRMAN HENDRIE: It seems to me that the record of 17 the proceeding, as it goes along, all the motions and 18 everything else and everything the board says, that that 19 record is available to the commissioners to the extent that 20 they want to be cognizant of it, starting months. before, and 21 even_the boards -- and, you know, the final decision or the 22 what do I ca 1.1 it -
the initial dee is ion of th.e board then 23 comes at the end 0£ that process, presumably a staff 24 certification.
25 And I must say, I guess commissioners it seems to
6199.02.9 2
3 4
5 24 me that 10 days after the initial decision of the board and some staff certification about completion 7 commissioners are going to have had ample opportunity to delve about as deeply as they"re going t.o delve into that record.
That is, what I--'m saying is that it seems to me to 6
reach a decision on lifting the immediate effectiveness of 7
the order we work on now, it-'s not necessary to have months 8
or whatever to look at it.
9 I don-'t know that that..,s what.follows from what 10 you-'re saying.
But --
JI COWHSSIONER GILINSKY: I...,m not troubled by 12 commissioners having closely followed th.e case.
And I studied 13 14 15 the issues deciding in relatively short order that they want to go one way ~r the other.
I am troubled by the notion of simply an action 16 on the part of the commission resulting in a lifting of the 17 i!i1mediate effectivess of this order when we*"ve committed 18 ourselves to take direct responsibility for the result.
19 COMMISSIO~,lER KENNEDY: The order we issued on July 20 2nd has two interesting facets in this connection.
21 Tne first is, it did say that the shutdown facility 22 should remain shut down until further order of the commission 23 itself.
And you-'re quite correct.
It seems to me that that requires not only some 25 order that says, if we don"t say somethingy that..,s deemed ta be
2 3
25 an order saying we did something.
I think we~re obligated to issue an order.
Now there might be some legal way to g.et around that.
4 But I think it would be.facile and not appropriate.
L think 5
we ought to issue an order.
6 Now, the question is:
How long should it take to 7
issus such an order?
8 It seems to me on one~s judgment as to what sort 9
of an order it really is, if, in fact, it is a provisional 10 one -- that is to say, that given what we know at this
.11 juncture, we see no further reason to reta.in th.e plant in 12 a shutdown condition while further proceedings continue, 13 but that that question is not foreclosed from further 14 discussion in the future.
That takes one period of time.**..
15 If one has to make the ultimate conclusion whether 16 for all time, this plant can, in fact, be operated without 17 any effect on or any appropriate effect on the public health 18 and safety.
It ssems to me that that takes a rather much 19 longer time.
20 There/s a second facet of this order which I think 21 is interesting and should not be forgotten by. this august 22 body.
23 It says that the commission will also issue an 24 order within 30 days specifying in detail the basis for its 25 concerns.
That is the reason that we shut the plant down in
6199.02.11 gsh -
2 3
4 5
6 7
J 8
I 9
yl 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 the first place, a fact which we have not made clear either to ourselves or to the public up to this point.
I reiterate, and I think I said this much earlier, and the date of this order is the second day of July, 1979.
And this is the 27th day of July.
If I am correct, we have something like 6 days in which to issue that second order, or another order saying that we canJt decide what the conceins were that we had when we issued the order to close the plant down.
Now, that fact may well bear on the point you-"'re talking about with this second order.
If we can-"'t even decide what it is we~re trying to do in 30 days, I wonder if we-"'re capable of deciding whether the plan,t could come up even on a provisional basis in two or three weeks despite the board-' s efforts.
I submit that we ought to be able to get on with this.
That might tell us the answer to whether we can handle the other matter in 30 days.
199.03.1 2
3 4
27 CHAIRMAN HENDRIE: I guess that I donJt know where that leads us, Dick.
CO MMI.SSI ONER KENNEDY: WeJre talking about -- weJre having endless debates about whether 30 days plus 5 for 5
,mailing, or 10 for mailing, would be appropriate when weJre 6
forgetting. that in 6 days, weJre going to have to do something 7
about the order weJre currently operating under.
8 I suggest that at the rate weJre making it, we 9
.are not going to, and counsel, I hope, is drafting some sort 10
.of additional order to give us further time to discuss this.
JI CHAIRMAN HENDRIE: As I read the current list, there 12 are 10 areas in which we need to come to some agr.eement on 13 the thrust of the order that we're in the process of producing.
14 This review quest ion and.the 1-ifting or not lifting 15 o.f the immediate effectiveness of the order we now work on 16 is. the first of the 10 items.
17 And what I am trying to seek is a consensus to find 18 where I can gather up the three commLssioners on how that 19 section ought to be written and that we go to number 2, 3, and 20 so on down the line.
21 I continue to think that thereJs a useful element 22 in building in ths kind of deadline that John has suggested 23 here.
24 COMMISSIONER KENNEDY: It is to be recalled that I 25 was the author of the JO-day deadline that I'm referring to in
6 l 99. 03. 2
.sh 2
3 4
5 6
7 8
9 10
.I l 12 IJ
- 14 15 l6 17 18 19 20 21 22 23 24 25 le 28 the present order for precisely the same purpose.
That-'s my point.
CHAIRMAN HENDRJE.: If you..,11 tell me whether you agree with the 30-day lifting of immediate effectivene_ss of this, if there is action by the commission, then r~11 know whether COMI-HSSIOi~ER KENNEDY: No.
I agree that there should be a 30-day limit. But I further believe that the order that WE have previously issued falls upon us to make that statement in this regard, not let it just happen by a failure to act, however it may be described as an act.ion.
I th.ink th.e commission is obligated at that po.int to put out a one-line order saying the board-'s decision is affirm.ed, which is then consistent with the arder we already have on the st~eet.
That-'s my view.
But I believe that it can and should be done within that 30-day p.eriod.
CO MM ISSI ONER BRADFORD: I *"m c erta inly prepared to agree to try to reach a decision one way or the other within the --
COMMISSIONER K.EJ\\JNEDY: It..,s a provisional decision, in my view, only.
I-'m sorry.
COMMISSIONER BRADFORD: To reach the provisional
. decision, I guess I-'d be a ll~tle. more comfortable with 35 days
61 99. 03. 3 2
3 4
29 than 30.
But anyway -
COMMISSIONER KENNEDY: I would certa.inly agree to 35 days.
Even 40.
5 COMMISSIONER BRADFORD: We.11, that, I think, would, 6
in effect, put that decision on the same status as our effort 7
to reach an order by August is now.
8 That is, we have stated a deadline for ourselves and 9
weJre trying to meet.it.
10 COMMISSIONER KENNEDY: I th ink setting deadlined for Jl ourselves is a great_thing.
I think even meeting the.m would 12 be be.tter.
13 CHAIRMAN HENDRIE: How would one phrase this, then?
14 MR. BICKWIT: One could phrase.it in a number of 15 ways.
One could say that the commission shall reach a 16 decision on whether to lift immediate effect.iveness within the 17 30-day period.
One could say that the commission sha 11 18 a_ttempt to do so, make every effort to do so.
19 One could say that if the commission fails to reach 20 a judgment, that the action of the board shall be -
the 21
.immediate effectiveness shall b.e lifted within 30 days.
22 If the commission fails to reach a judgment, that, 23 in effect, that the plant should not come up, in effect, 24 25 counter-acting the board~s decision within 30 days.
Then, the commission sha_ll issue an order lifting
_J
6199.03.4
-gsh 2
3 4
5 6
30 immediate effectiveness.
I_ think those would be the three basic options.
COMMI.SSIONER GILINSKY: It seems to me, as I said before, that the only course that~s consistent with our previous order is to lift the immediate effectivene..ss of this order only by 7
CHAIRMAN HENDRIE: By an action of the commission?
8 COMMISSIONER GILINSKY: By an action of the 9
commission, yes.
10 CHAIRMAN HENDRIE: So you wouldn~t favor the last one
.JI which still has an automatic circuit in it that says for 12 action and the board decision?
13 CO?,,,!MISSIDNER GILINSKY: I would say action -- no 14 15 immediate effect-iveness.
This order* remains in force.
MR. BICKWIT: It obligates the commission to take 16 action in the event of no action.
It obligates the 17 commission to order the plant up if it --
18 COMMISSIONER GILINSKY: It takes an order of the 19 commission to put that plant back into operation.
20 CHAIRMAN HENDRIE: Let~s see -
21 MR. BICKWIT: Wh.at I-'m saying is that technically, 22
.in each o.f those cases, you would have an order of the 23 commission putting the plant back in operation.
In the case 24 of the third, the entire drift of it ~ould be to the 25 contraryo
I I
I 61 99. 03.5 2
3 4
31 COMMISSIONER GILINSKY: Here, I've got to agree with Commissioner Kennedy.
It may be technically right, but ---
MR. BICKWIT: I think it does counteract the drift of your previous statement.
5 CHAIRMAN HENDRIE: Then, your first two options were 6
simply to say the commission will deal with the lifting of 7
.th.e immediate effectiveness of this order within ---
8 MR. BICKWIT: 30 days.
9 CHAIRMAN HENDRIE: 30 days of certification of JO completion. Well, I assume the same language would go here if J 1 th.e 1 i c.ensing board should Lss ue a dee is ion authorizing J2 resumpt.ion of operation upon completion of the certain 13 specific actions of the licensee, and subsequently, if sta+/-f 14 certifies those actions have. been completed to its satisf.action 15 MR. BICKWIT: They will reach a decision within 30 16 days on whether to lift immediate effectiveness.
17 CHAIRMAN HENDRIE: Of this order.
JS MR. BICKWIT: Right.
19 CHAIRMAN HENDRIE: And then it will go on and say, 20 if i~ determines so that the public health, safety, and 21 interest no longer require that this order or set provisions 22 remain immediately e.ff ecti ve.
And the dee is ion on that 23 question wil.l not effect its normal appe.llate review, and 24 so on~
25 How does that strike you, then, since I can't
61 99. 03. 6 32 headway with your original?
2 3
4 COMMISSIONER AHEARNE: But if there are four, that-"s obviously CHAIRMAN HENDRIE: I don-'t know whether I do or not.
5 Okay?
6 CO.MMISSIO~R GILINSKY: It-'s all very we_ll to set 7
deadlines.
r_think it-"s a use+/-ul discipline.
But what 8
happens ~f those 30 days, that 30-day deadline was not met?
9 CHAIRMAN HENDRJEJ Precisely the same thing if we 10 don-"t get the TMI order out now within the remaining days.
JI It means that, tn fact, we-"ve preached our intention as 12 expressed in an earlier order and noth~ng happens.
13 COMMISSIONER KENNEDY: I submit that may be open to 14 question and I would like to ask couns-el what the result "is 15 if the commission fails to comply witb its order?
16 MR. BICKWIT~ Violation of your own order.
I think 17 suit would try to compel you to take action in conformity 18 with that.
19 COMMISSIONER KENNEDY: I would hope so.
20 CHAIRMAN HENDRIEJ A litigation would ensue.
21 COMMISSIONER KS\\INEDY: We have the same obligation 22 to comply with our orders that everybody else has.
If we-"re 23 going to issue them, we ought to comply with them.
24 CHAIRMAN HENDRIE: As a matter of fact, the earlier 25 one in this case ---
2 3
4 said --
33 COMMISSIONER KENNEDY: Discipline, it was always CHAIRMAN HENDRIE: Have you got the earlier order?
COMMISSIONER KENNEDY: Discipline begins at home, 5
I was a.lways told.
6 CHAIRMAN HENDRIE: ItJs sort of the conventional 7
the commission will also issue an order within 30 days.
8 COMMISSIONEH GILINSKY: Would everyone entertain such 9
motions in other circumstances?
10 CHAIRMAN HENDRIE: People presumably will fly over JJ whatever propositions they_think are appropriate in that time 12 period.
13 Peter, whatJs your thought?
14 COMMLSSIONER BRAD"FORD: Sounds all right to me.
I 15 guess, as I say, IJd prefer 35 just because IJm not sure 16 I understand the time periods when you throw in the mail.
17 CHAIRMAN HENDRIE: By not spec.ifying that, we~ll 18 take motions in 10 and rebuttals in 7, and so on.
You say 19 itJs 30 days from staff certification that weJll attempt to 20 come up with an orde.r.
21 COMM I SS IDNER BRADFORD: No.
If somebody --
22 COMMLSSIONER KENNEDY: We have to specify those 23 other time periods, donJt we?
24 COMMISSIONER BRADFORD: We donJt have to 9 but if we
61 99. 03. 8 gsh -
2 34 CHAIRMAN HENDRIE: We-"re not asking for motions.
COMMISSIONER KENNEDY.: But if we don"t, then 3
establ.ishing a 30-day deadline, it seems to me, is unreasonable 4
because the parties will not know that they are obligated to 5
act within c2rtain periods of time when they won-"t get anything 6
done.
7 CHAIRMAN HENDRIE: They-"re not obligated to act.
8 CO MM.LSSIONER KENNEDY: Of course not.
But we have 9
a responsibility to them.
If we intend to do certain things JO and take certain amounts of time, they ought to know that.
JI COMMISSIONER AHEARNE: In the direction you"re goin9, 12 unless you put down some kind of time schedule, I don-"t. think 13 You-"11 have any power to reach this issue.
14 CHAIRMAN HENDRIE: I doubt th~t.
But 1/4OU-"11 have a 15 record of a hearing that will run literally years.
16 COMMISSIONER AHEARNE: You".11 find a need to get more 17 information.
18 COMMISSIONER BRADFORD: Well, what you will get are 1 9 the vi e w s of the pa rt i es o n the 29th d a y w i thou t a dd r e s s in g
- 20.
what other things are important issues.
So you-" 11 have a 21 whole new set of papers at the very end of thB time period.
22 COMMISSIONER KENNEDY: We won-'t have a whole set.
23 COMMISSIONER BRADFORD: It will be a new set and they 24 won-"t address the points raised by each other.
25 CHAIRMAN HENDRIE: Ol<ay.
So what you would propose
35 2
to do is get the kind of language I Just went through. And anybody that wants to file a *comment with us on this process 3
has got to do so within so many days and anybody who wants 4
to comment on other people.,,s comments have got. another so 5
many days.
6 I must say I.,,d give them 7 and 7.
If you know two 7
years ahead of time that when the board makes a decision and 8
then the staff certifies completion of actions and you.,,re 9
then going to have 7 days to tell the commission what, if JO anything, you want to tell them about their lifting the J 1 immediate effectiveness, why, it seems to me that the parties 12 are amply on record and don.,,t havs a problem.
l 3 14 You know, you.,,re not going to ask for this 80-day br +/-ef ing s-0rt of propos:i t ion. You just "give p eo pl e a cha.nc e 15 to come in arld say, you.,,re out of your mind if you lift it 16 or you ought to.
17 COMMLSSIONER BRADFORD: What will the parties involved 18 with the board by that time -
will they have filed comments 19 on the record?
20 MR. BICKWIT: Yes.
21 COMMISSIONER BRADFORD: The requested findings of 22 fact?
23 MR. BICKWIT: Yes.
24 CHAIRMAN HENDRIE: All you-'re allowing is sort of 25 one last letter4
6J99403.. l0 sh 2
3 4
5 6
.7 8
9 10 J I 12 13 14 15 16 17 18 19
. 20 21 22 23 24 25 36 COMMISSIONER BRADFORD: \\l'le.11, no
- CHAIRMAN HENDRIE: And comment on the other fellow--'s letter into the record.
COMMISSIONER BRADF0rW: At the very least, it will be the first time theyJve seen a board decision, which w.ill be a document of some importance and, conceivab.ly, a fairly Jong one.
I would sti.11 go with 10, 7.
C0.MMISSI0NER KENNEDY: We--'re talking about 3 or 5 days. I don_.,t see what the point is.
Why don..,t we just say 35 days, ~which seems to make sense?
l~e need 2 1,1.eeks. We ought to allow ourselvss 2 weeks.
If we can--'t answer that question in 2 weeks, I don.., t. th ink that we-' re going to answ.er it in 2 years.
CHAIRMAN HENDRIE: Can I get agreem~nt on 10, 7, and 35 overa 11?
COMMISSIONER BRADFORD: Yes.
COMMISSIONER KENNEDY: Aye.
COMMISSIONER AHEARNE: Fine.
CHAIRMAN HENDRIE: Steve, between you and Len, is it clear enough how this section ought to read?
MR. 0STRACH: Yes-CHAIRMAN HENDRJE: Next item, dis~overy.
The recommendation in the council--'s memor3ndum, those consider a course to attempt to encourage the board to try to keep the
6 l 99. DJ.J 1 gsh -
2 3
4 5
6 7
8 9
10 J l 12 13
- 14 15 16 17 18 19 20 21 22 23 24 25 37 discovery of operation in hand, not a.llow.it to extBnd on
. i nd.e finitely.
And the other side as another option would be to not allow discovery on the basis that thereJs a lot of info.rrna t ion that wouldn..., t norma_lly be a va ilabl e in a case coming out of this.
And then, to set a fairly high threshold that a party would have to get over in order to allow discovery in some special grounds, or rather, grounds that investigations werenJt producing the kind of information that was nseded.
I think your recommendation came down simply on not doing th.at, but on encouraging the board to keep track of
.. the discovery operation and prevent undue delay or imposition of an und~e burden on any party.
Is that r~ght?
MR. BICKWIT: No.
We went the other way.
CHAIRMAN HENDRIE: You went back and forth about three t~mes and I must have missed a turn.
COMMISSIONER BRADFORD: Last sentence on th~ first paragraph under discovery, page 5, shows what..,s recommended.
MR. BICKWIT: You may be thinking of the crQss-examination.
CHAIRMAN HENDRIE: Well, I also may have mischaracterized your options.
~aybe you'd care ta, A, recharacterize them, and B, co~ment on them and let..,s see where
6199.03.12 sh 2
3 4
5 6
7 8
9 10 J I 12 _
13 14 15 16 17 18 19 20 21 22 23 24 25 38 weight lies on this matter
- MR. BICKWIT: IJd like to ask Steve to.
MR. OSTRACH: Mr. Cha_irman, I believe you characterized the two options quite we_ll.
The first wou-1d be ordinary adversary discovery that the board would tightly monitor.
The second would be a somewhat different procedure, which would rely primarily on the existence of material that has been accumulated by the commission, by the special inquiry, by the PresidentJs commission, the Congressional com~ittees as a primary source of information.
The basis for our recommendation is not that we could easily point to a tremendous time savings if the second procedure is adopted because we recognize that in the schedule, that 'Nhat has-been propos~d so far, there is no.tell.ing where the parties are doin;; nothing but discovery and_ therefore, no matter ~hat you do with discovery on that schedule, you wonJt save any time.
CH.AIRMAN HENDRIE: It is, however, true that if the discovery process drags out and becomes four or five or six months instead of two, why, it becomes a controlling element.
MR.. OSTRACH: Yes, sir.
ItJs going to say our recommendation is based on the fact that a procedure like this would prevent any slippage due to discovery problems and it would also prevent the parties from distracting themselves
~ 199.03. L3
.sh
/7 V
.e 2
3 4
5 6
7 8
9 10 J l 12 13 1 4 1 5 16 17 18 19 20 21 22 23 24 25 39 and each other from the issues tn the case with discovery controversies.
Discovery requires a lot of work. Responding to discovery requires a lot of work.
That is totally apart from the gathering of the information, and a procedure like this With a legal limit of extraneous matters that often take place in proc..edure s.
01.04 01 kap 2
40 MR. BICi<WIT:
I guess the other factor is, I personally have more confidence that the SCH and ACRS phase 3
of chis will move on schedule.
And that schedule that's 4
running parallel to it, will move on schedule so it's 5
conceivable that you'll get to a point where the discovery 6
is on the critical phase.
7 CHAIRMAN HENDRIE:
Remind me again.
Suppose, in d
fact, t~at in a burst of enthusias~, we co~pleted the work 9
we now have in hand within the prescribed schedule so there 10 was an order issued August second?
At what ooint would the 1 I discovery -
if we limit it, they can't say discovery 12 13 14 15 16 starts, would have started?
I MR. BICK\\1/IT:
Or.i the 80th day.
CHAIR~AN HENDRIE:
About 80 days down the line?
W~
- B I C KW I T :
Y e s
- Cr-iAIRAIAN HEND~IE:
The ena of October.
Hh.en are 17 parties expected to file testimony, and so on?
18 MR. BICKWIT:
The 165th day.
19 CHAIRMAN HENDRIE:
Which puts it August -- puts it 20 six months, 5-1/2 months away, January 15th.
There 21 certainly should be a fair volume of material from 22 investigations in hand by that time.
The end of October, I 23 would think, not so much.
24 MR. BICK~IT:
~ell, the Commission deadline is the 25 end of October.
1.04 02 i<:ap 2
3 4
...)
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 41 CHAIRMAN HENDRIE:
Presuming they mak~ it.
MR. BICKWII:
Which we understand at this point, they are on schedule.
CHAIRMAN HENDRIE:
But at any rare, by the first of the year, I think we're expecting that ours will be in 9 too.
We.11, comments, Peter?
COMMISSIONER BRADFORD~
Yes.
Does this impose on a party then, a duty to be familiar with everything that is in the files of each and every one of those possible sources of information?
MR. OSTRACH:
No, sir. Eirst, we propose that the Commission would itself, maintain in one place, all of this material.
And secondly,, the party would not be re*sponsible for knowing what's there.
It is jus~ that instead, when he desires informat:ion, instead of going to a party and requesting depositions or interrogatories, he would be required first, to go to the available material and prove that he had, in fact, searched to find that material and co u l d n ' t ha v e f o u n d i t: and n e eds to have i t be f o re he c an file depositions.
COMUISSIONER BRADFORD:
\\'/ell, let's see.
Supposing it was there and he missed it?
\\~hat happens?
MR. O~TRACH:
He would say that I loo'.zed and if it were there and the Board knew it was there, the Board would say that or another party 1,vould say i 1:.
6199 04 lo 03 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 42 CO!,fMISSIONER BRADFORD:
And, are you saying then, Steve, that we would have in one place, everything there was to be had about it?
It was in the public domain about Three Mile Island?
MR. OSTRACH:
f'ie would try to accommodate everything that was in the public domain.
To the extent, of course, we can't get cooperation from parties, the material wouldn't be in the daca compilation and the party could get discovery on it.
COM}AISSIONER BRADFORD:
Is it normally a legitimate defense to discover a request for the party 6n whom it's being served to be able to say that t0e information is available through.other means?
MR. BICKWIT:
Under our rules, the scope of discovery is that parties may obtain discovery regarding any matter which is relevant to the subject matter involved in the proceedings.
COMMISSIONER.A.HEARNE:
That doesn.1t apply to the information NRC has?
MR. BlCKv~IT:
It does not?
COMMISSIONER AHEARNE:
Well, maybe I'm misreading 2744.
MR. BICKWIT:
2743?
CO :,1M ISSI ONER AHEARN E:
- 44.
MR. BICKWIT:
No, it doesn't.
It applies to 2743.
61104 04 kap 43 COMMISSIONER AHEARNE:
2744 applies to* production 2
of NRC documents and said presiding officer there is 3
supposed to decide one of its criteria, whether the 4
documented information is reasonably obtainable from other 5
sources.
0 MR. OSTRACH:
That is also in ordinary discovery, 7
a party can answer a request by saying that information is 8
available at such-and-such.
'-}
10 COMMISSIONER KENNEDY:
It is a reasonable answer.
MR. BICKWIT:
Not as I read our rule.
But, that's 11 the way i t"s been interpreted.
I"m not familiar with that 12
- interpretation of it.
13 CO;'AMISSIONER AHEARNE:
At least for our records, 14 it seems to be very explicit.
15 16 MR. BICKWIT:
Yes.
COMMISSIONER BRADFORD:
If the rule looks that way 17 in practice, then I"m uncertain as to why we would need to I 8 s pe 11 i t a 11 o u t in t he o rd er
- 19 20 MR. BICKWIT:
Yes.
I understand.
MR. OSTRACH:
Without requiring data compilation, 21 it would be very difficult to say where the material is.
22 23 COMMISSIONER BRADFORD:
Requiring data compilation is probably another ~atter.
I think it"s probably a good 24 idea.
I guess my opinion would be require data compilation 25 and let normal discovery rules work in conjuction with that.
61.04 kap 05 2
3 4
5 6
7 8
r..;
10 11 12 13 14 15 lo 17 IG 19 20 21 22 23
'.),1
~-,-
') c::
is in 44 co:,L'.\\ISSIONER KENNEDY:
I guess maybe that question if ~hat is in question, then we ought to nail down the difference of view, which seems to be expressed about what our rules really say.
Because we want to be wholly responsive to our rules, or, if we don't want to be, we could even change them.
COMMISSIONER AHEARNE:
Could I ask: a couple of questions on this?
CJn your description of limited discovery on page six, you have down near the bottom of that proposed language, the phrase:
and it will also permit informal access for NRC staff considerations of the issues involved.
I'm not sure what that phrase means.
MR. OSTRACH:
- rt was intended to mean that the practices that are now followed in ordinary licensing proceedings with staff is relatively free access for whether it's going on.
In addition to ordinary discussion, NRC staff is very cooperative with intervenor requests to see staff documents, to attend staff meetings, matters like J...
t...na t...11 It was perhaps an artful way of saying that that policy would be followed in ~his proceeding, as it is in licensing proceedings.
co;,1,'.;ISSICJt~cR Ai-iEARNE:
Normal process.
And what is the si~nificance of the last phrase in that particular description?
I can t understand in something called limited
5199 04 06
- ~
45 discovery, the idea that the information is cleirly 2
relevant, it's not available.
But, I'm not sure I 3
understand the last phrase.
To me, it seemed to read 4
particularly Hith an 11 and; 1 in there, that if I came in were 5
able to prove that it's A, clearly relevant and 8, it's not 6
available, but C, unless I could prove that finding, it 7
wouldn't result in any undue delay.
8 I still could get it, even -if I proved it was Y
relevant and unavailable.
10 MR. OSTRACH:
There are degrees of relevance.
11 That's why we chose the word nundue. 11
.A matter might be 12 tangentially relevant or relevant to a minor point or 1-3 cumulative point or one more evidence fhat sGmething was 14 true, but would require weeks and perhaps months to find the 15 answer.
And that's why we chose the term.
16 CO!,ii,iISSIONER AHEARNE:
So, the Board balancing the 17 judgment of relevance versus the delay?
18 lY M~. OSTRACH!
Yes, sir.
COMMI SSIONEF~ AHEARNE::
Last question.
On page 20 seven near the top, you've got a sentence:
There have been 21 allegations in proceedings that discovery has been used to 22 deter intervention.
So, you're saying that there is an 23 argument th3t discovery can je usad to ~Eep intervention 24 away -- to oppose intervention?
25 CDMiv[ISSIONER KENNEDY:
How does that work?
1'.04 07 1(2 p 2
3 4
5 0
7 8
9 10 11 12 13 14 15 16 17 13 19 20 21 22 23 24 25 46
- ML ClSTRACH:
Tc give a hypothetical example, a personal intervenor or small organization would appear seeking to raise certain contentions.
Particularly if they were the only intervenor and in their absence, a proceeding could be.uncontested, a party desiring to remove that proceeding and convert it to a contested proceeding could file a 200-page document asking for the basis of contention.
Are you familiar with this in this document?
Are you. familiar with that?
Please list.
There are ways of making it very difficult and frightening, particularly in what"s not familiar with discovery documents, making it look like you"re going to have*an awful lot 'of wo~k to do.
If you don"t respond fully, *then a motion can be filed with a board to do this and that.
Discovery can be used in that fashion.
If an intervenor, nonetheless, persists, the workload can be tremenciously increased by extensive discovery against him, tied up in depositions.
COMMISSIONER KENNEDY:
It works the other way, too.
COMMISSIONER AHEARNE:
Doesn"t it also work tying up the staff/s ~orkload?
- ,'\\ R
- O_ ST RACH :
O h, d e f i n i t e l y do e s
- 8 u t,
s ta ff and often the applicant have substantial resources.
By getting
61.04 08 k:ap le 2
3 47 into a discovery, the parties that come out ahead are the part i e s 11 i th the gr ea t e r re so u r c e s
- CO/,\\MISSIONER ;(ENNEDY:
It seems to me that such a 4
circumstance is probably inappropriate to discuss 'tlI"D comes 5
out ahead.
I think averybody is losing by such a process.
6 7
8 CHAIRi',lAN HENDRIE:
John. how do you come down?
COMlHSSIONER AHEARN::::
It seems to me --
MR. BICKWIT:
I'd just like to say that our 9
recommendation is not a hard recommendation, in fact.
10 CC)i\\fo\\ISSIONER AHEARNE:
Does the Board in so-called l I normal proceedin~, which I guess is tightly monitored, is it 12 the same as normal?
13 14 normal.
Y e s, s i r
- Pro c e d u r a 11 y i t i s It's just that the Board is given instructions to 15 the extent it can i_ssue to try to prevent distortion of the 16 problem.
The problem is in ordinary discovery the Board is 17 not involved until a ~arty receives compliance with an order 18 or seeks protection.
And a lot of discovery goes on 19 withouth the Board's involvement.
20 So, it might be difficult for the Board to monitor 21 and prevent all possible waste of time, particularly if 22 they're not abusive.
I'm certainly not suggesting it.
CO:,{MISSIC):iER AHEA;;[*JE:
But, if it 1,vere to get 24 abusive, is there always the opportunity for the person who 25 feels it is becoming abusive to go to the Board?
48
];IR. C)STR.. \\Cf-f:
/\\ mot.ion for a protecti 1le order, 2
yes, sir.
3 I guess I'd probably come 4
down on balance with Peter's approach to compile all the 5
information and go with that.
Your words type and monitor, 6
it's very close either way.
7 C();;U.\\I SSICJNER KENNEDY:
Well, I prefer the limited 8
discovery proposition as it is described on page six in the 9
language with the caveat that the particular effect of our I O o w n reg u l at i o n n e e d s cl a r i f i ca t ion, w h i c h I
-c ho U<::J ht w a s w ha t 11 Peter was suggesting.
12 13 COMMISSIO~-~ER BRADFORD:
Well, it may haye been the end result of getting two different'answers to my question.
14 But, I hadn't gotten around to suggesting it yet_.
15 MR. BICK~IT:
I might add, there would be no 16 conflict between either of these sets of language and the 17 rules.
15 CU :t.\\ I SS ION ER AH EARN E; I would hope not.
19 MR. BICKWIT:
If there were, I'd have no problem 20 with recommending a change.
But, I'n speaking of language 2 1 o n page s ix
- 22 MR. BICKWIT:
Yes.
We see no conflict because 23 there is an option under :he rules to change the scope ct 24 discovery procetLlres.
25 CHAIRMAN HENDRIE:
Let's see.
Under the
6!i 04 10
.-::ap 49 pro:Josi tion that Peter and John appear to favor,- one would 2
have some such language as that a~ the bottom of page five 3
of the counsel's memorandum.
4 It would then go on to note that a compilation of 5
all of these good things from the inquiries, et cetera, et 6
cetera, will be raaintained.
7 MR. OSTRACH:
I suggest we take the sentence out 8
of the middle of page six, beginning with -1 1accordin9ly. 11 9
CUMI1USS ION ER BRADFORD~
That"s what I would have 10 suggested, was exactly that, taking that sentence and -- I 11 wouldn-' t feel a need to say any more about discovery than to 12 say it would be pursuant to 10 CFR 2.740, 2.714
- 13
?,iR. OSTRACH:
In other words, you*would drop the 14 last sentence in the language on page five, drop t~e whole 15 thing?
16 CCH{i,;\\ISSIONER BRADFORD:
Yes, all I would say is it 17 would be pursuant to the rules.
It seems to me that the way 18 to hanole this hearing in most respects, is to pie% a Board 19 we have confidence in and expect them to enforce the rules 20 without taking par~icular sentences out of the rules and 21 underlining them.
22 COMiv\\ISSIO(\\jER Kt:NHEDY:
I vote for the language on 23 paJJ six.
CHAIRMAN HENDRIE:
I/d prefer it myself.
~e tend 25 to come down two-two on the item.
61.04 11 kap 2
3 50 COti\\MIS-:;;IONER AHEARNE:
I have been goir,g with the language that the General Counsel had here.
CHAIRMAN HENDRIE~
With the addition of 4
compilation?
5 COiA/,fl SS I ONi::f? AH EAR NE:
Right.
6 CCJ:.:HISSICJNER KENNEDY:
It.1s a practical matter.
7 Excepc for the addition of compilation I don/t see what 8
difference it is from what/s stated in the rules.
The 9
language that's there now on page five is essentially 10 redundan-t.
It is simply saying do what the regulations call 11 for.
Ic doesnc' mean a thing.
CHAIRMAN HENDRIE:
If we.1re going to go in that 12 13 direction, r.10 like to se~ the last sentence on page five.
14 I think it.1s a little urgent toJard monitoring and is 15 useful.
16 CClMl;iISSIONEr~ KENNEDY:
The Board-'s going to be 17 governed by the re;ulations, not by auditory language.
If 18 it-'s been told to follow the regulations, which is what it 19 is being told to do.
20 COMMISSIONER BRADFORD:
I would take the first 21 sentence and the sentence Steve indicated from Band go with 22 that.
23 CHAIRMAN HENDRIE:
Except you wouldn1 t head it 24 accordingly, I c.a;.:e it?
25 CO:,fo[ISSIONER BRADFORD:
I would have to remove the
cil.04 12 kap -
2 3
L~
5 0
7 ti 9
10 11 12 13
)4 15 16 17 I -~-u 19 20 21 22 23 2 t~
25 51 word accordingly, yes.
Cf-L\\IRr,\\AN HENDRIE; Okay.
Well, that,,s 2 clear enough recommendation.
John w2nts the last sentence on that.
And I guass on bal2nce, I think for the limited discovary, ic is likely to be better.
COMMISSIONEFf BRADFORD:
right out of the regulation?
Is that second sentence W*L OSTRACH:
The language of the second sentence is right out of the regulation, sir.
COWHSSIONER KEM~EDY:
Why don-'t we incorporate it as an appendix to the order, a copy of the regulations and say hereinafter referred to as regulations, see Appendix A?
C.
/Je could e*ven offer to_.__gerhaps have a course in the
- regulations to be provided to all parties.
CHAIRMA~ HENDRIE:
I tell you wh2t.
In order to get off chis one, why, we 1 ll daclare a brief pause to see 1Hhe ther either John will Jain Peter Peter will join Jo ht.
in this case.
It-'s a stand-off and I will go find out from Vic which way he wants to go or, if neither of you will join the other, I will declare a one-one-two and we will use.
pending further gathering of the clan and re-voting, use the li~ited discovery language in the next draft of the order.
8u~, I would suggest that che counsel have in l-'i2nci, also, cl~3 Bradfor-,j \\ir3rsic;n :.;~~d tl1e.Ahearne.,1arsion, be:ause we may need it, either or both.
You'd still prefer
51.04 13
- <:Dp 2
3 4
5 6
7 6
v\\
_J..,
10 1 I 12 13 14 15 16 17 10 19 20 21 22 L..)
24 25 52 to have a two-sentence one as you outlined?
co:.'.(IISSIClNcf-? GRADFDFW:
Yes.
I really think that it's a wistaje to take out a particular piece of it and underline it for the Board, unless we know exactly what we/re doing.
And I don't feel that I would in this situation.
CHAIRMAN HENDRIE:
I' 11 dee lare a two-one-one situation, and the ne~t time we do a draft on this, why, we will build into the limited discovery language.
But, as I say, I think Peter's version and John"s version should be in hand because, you know, when we get five commissioners back around the table, why, there may be regroupings that will move one way oi the othei.-
But, at least we"ve got three unidentified pieces of language and I think we can sort it out the next time 2round, sort out which.
Let me move on, then, to cross-examination.
- Now, rather than interpreting your memorandum for you in this case 1 will you tell us what you've recommended and why?
I 99. 05. 1 gsh -
2 53 MR. BICKWIT: What are the options before you in this case?
We have chosen the more modest and that option 3
would, in effect, encourage the board to provide us authority 4
to prevent any undue delay to the proceeding relating from 5
unnecessary or excessive crQss-examination.
6 COMMISSIONER AHEARNE: Close s er ut i ny by the board 7
is equivalent to normal procedure.
Is that correct?
8 9
CHAIRMAN HENDRIE: It should be normal procedure.
MR. BICKWIT: ThatJs right.
CHAIRMAN HENDRIE: Only consistent with our Jl regulations?
12 MR. BICKWIT: R.ight.
It would encourage the 13 alternative to delay crQss-exami~ation until a first phase of 14 15
~he ptoceeding and take the course to the board following that first phase.
But crass-examinat.ion was required and then 16 to lay out for the board some factors which are taken from 17 the Food and Drug AdministrationJs regulations as to what the 18 board should consider in deciding whether cross-examination 19 should be granted.
20 It would impose a somewhat tougher standard than 21 under our normal regulat.ions.
22 Let me just say one othe~ thing.
Under our rules, 23 the standard is a slightly different proposition in that the 24 authority of the presiding officer is to prevent argumentative 25 repetition or cumulative cross-examination.
Here we are
16 l 99. 05. 2 gsh -
54 saying unnecessary examination is also to be precluded.
2 COMMISSIONER KENNEDY: \\\\/ith a 11 due respect to the 3
board, isnJt that ultimately in the eye of the beholder?
4 MR. BICKWIT: Yes.
5 COMMLSSIONER KENNEDY: And therefore, subject --
6 MR. BICKWIT: I donJt see a great deal of difference.
7 9ut there is som2thin9.
8 COMMISSIONER KENNEDY: But to the extent that one 9
introduces something like unnecessary and as an additional 10 note, that is clearly a judgmental matter, necessity being Jl a ma~ter of oneJs own view of judgment in the matter at 12 hand and the merits.
13 IsnJt that building a major case for subsequent l 4" 15 litigat~on and challenge?.
MR. OSTRACH~ No, sir, itJs not.
16 The right of cross-examination that the 17 Administrative Procedure Act itself uses the word "required,"
18 which I believe is equivalent to 11 necessary 11 here.
It says 19 part.ies have the right to such cross-examination as may be 20 required for full and true disclosure of the fact. Stating 21 that the cross-examination i£ unnecessary or excessive is 22 the converse side of that.
23 MR. BICKWIT: In fact, it mi~ht be well to change 24 this language to include the very language of the 25 Administrative Procedure Act.
6199. 05. 3 gsh -
2 3
4 5
6 7
8 9
10 Jl 12 13 14 15 16 17 18 19 20 21 22 23 24 25
.55 MR. OSTRACH: And_ the commi ssion.1 s regulations.
That language of Hrequired 11 is, as we say here, 2743.
CHAIRMAN HENDRIE: So where are we now?
COMMISSIONER KENNEDY: Change the words down in that "close scrutiny of the board."
CHAIRMAN HENDRIE: What would be the words, then?
MR. OSTRACH: Required for a full disclosure of the facts.
COMMISSIONER KENNEDY: You"d have to rewrite the sentence.
MR. OSTRACH: Resulting from cross-examin.ation, not necessary for true and full disclosure of the facts or from the other sources mentioned in that section.
COMMISSIONER BRADFORD: First sentence stays the same?
MR. OSTRACH: Yes, sir.
CHAIRMAN HENDRIE: Can you say it one more time?
Read it from the top.
MR. OSTRACH: The first sentence is the sama:
In the conduc,t o.f this hearing the 1 icensing board should exercise its authority to seek to _ensure that it receives all informat.ion nec.essary to a thorough investigat_ion and resolution of the questions before it.
By the way, that~s new language.
We~re just adding that for balance.
However, it should also employ its authority
61 99. 05. 4 gsh -
2 56 under 10 CFR 2.757 to prevent any undue delay to the proceeding resulting from unnecessary or excessive 3
crass-examination or from the oth~r sources mentioned in that 4
section.
5 Actually, I suppose we could take out the word 6
J1other, 11 since full and true disclosure isn--'t in that section, 7
as Mr. Bitkwit discussed.
8 So delete the word *11 otheru from that phrase.
9 COMMISSIONER BRADFORD: I would again prefer to let 10 the regulat~ons speak for themselves.
But I donJt find that Jl this paragraph -- I donJt have the same difficulty with it 12 that I did with the other because I. think that the two 13 sentences balance each other, and if thereJs a preference 14 15 for it,' I would not hold out against you.
CHAIRMAN HENDRIE: I take it you-'re *arguing 16 principally for the delayed cross-examinBtion.
lJm waiting 17 to be swept by your argument.
Okay.
Amended -- you would 18 be willing to go with an amended A?
19 COMMISSIONER BRADFORD: Yes.
20 COMMISSIONER KENNEDY: Given the nature of the 21 discussion here and the statement that -- I must say that 22 this is a striking statement.
23 So I really do want to read it. Although OGC 24 believes on balance that the procedure would be legalf it 25 would be subject to a potentially serious legal challenge
199.05.5 gsh -
57 2
3 4
either as not comply.ing with the APA or as being arbitrary and, therefore, illegal.
And as I sa.id, I. think that-' s a striking sentence.
MR. BICKWIT: Our view is that it will be unsuccessful 5
COMMISSIONER KENNEDY: However, it-would be a serious 6
one.
7 MR. BICKWIT: I donJt know if Steve would want to 8
a ddre_ss that question.
9 VOICE: I think that.J's to the extent that one 10 imposes a higher burden on cross-examination than would JI otherwise be required under the CommLssion--'s present rules.
12 You might be in legal difficulty.
13 The language from the FDA regulation doesn-'t, on its 14 15 face, impose any higher burden.
So I_think that I would agree with a general 16 statement that the stanrlards set out in the FDA regulations 17 would be legal. But I would prefer Option A as Len has 18 recommended.
19 COi\\iWISSIONER KENNEDY: Having heard that, I conclude 20 What I thought it did mean and, therefore, feel driven to 21 Option A.
22 CHAIRMAN HENDRIE: As amended?
23 COM"MISSIONER*KENNEDY: Yes.
24 MR. BICKWIT: That.J"s what it meant.
25 CHAIRMAN HENDRIE:. We have three votes for Option A.
161 99. 05. 6 gsh -
53 Do it that way.
2 3
COMMISSIONER AHEARNE: No.
No.
I d idn...,t know where 4
you voted.
5 CHAIRMAN HENDRIE: Oh.
6 COMMISSIONER AHEARNE: I knew I did.
7 COMMISSIONER BRADFORD: You voted for that i Uegal 8
.one, right?
9 CHAIRMAN HENDRIE: No.
I voted for A, too, because 10 there seems to be*-- it"'s not clear to me that you_,,d save
.11 all that much by the other one.
And, indeed, the point is 12 a useful one, as we go away from our normal procedures.
13 14 15 16 said COMM LSSI0NER AHEARNE: Yes.
CHAIRMAN HENDRIE: You create more and more of a --
C0MMLSSI0NEH AHE.ARNE: I.,,m just wondering -- *,then you 17
~HAIRMAN HENDRIE: I've already indicated a reluctance 18 to go tno far from the normal procedures by recommending to 19 you that this be a single hearing instead of the two-hearing 20 version.
21 So that-'s okay.
22 Now the next toughie we may as well hit is whether 23 satisfactory compliance with the requirements of this order 24 that we are now drafting should.be an issue in the hearing 25 itself, or issues. Peter circulated a note to us saying he
I
~ l 99.05. 7 gsh -
59 thinks it should in part.
2 Would you define the in part?
3 COl£'vlISSIONER BRADFO:~D-: The area in which I was 4
comfortable with the original proposition was what are the 5
issues about?
6 CHAIRMAN HENDRIE: More hardware-oriented thing?
7 COMMISSIONER BRADFORD: Yes.
I have not sat down 8
since to give the kind of position th3t would set comfortably 9
into an order.
I guess in part I-'m not sure that there_.,s 10 anyone around who shares my concern.
Jl If there isn-'t, I might still have to write it down 12 on a slightly delayed schedule.
13 14 15 CHAIRMAN HEMDRIE: I guess, well, for myself, I would strongly want staff c e_rt if i cat ion of t h'e comp le't ion of items rather than having that even to a limited extent, 16 having that complianci be itself an issue in the hearing, 17 because it just see~s to me t~at it stretches the process 18 out.
19 I can~t define it all and foresee all of the kinds 20 of difficulties.
But I can see the potential for very 21 extensive arguments over the compliance in part and also, 22 again, isn~t there a certain amount of difficulty?
23 24 25 Let_.,s see.
I guess that there is a way to avoid a closed c~rcle, right?
COMMISSIONER BRADFORD: You mean in the sense that --
I 51 99.05. 8
.sh 2
3 4
5 6
7 8
9 10 J 1 12 13 1'4 15 16 17 18 19 20 21 22 23 2-4 25 60 CHAIRMAN HENDRIE: That you can-"t complete the hearing because you canJt complete the hearing issue on compliance?
And the reason you canJt do that is until the board finally makes up its mind, you donJt know absolutely everything you have to comply with.
There must be a way to break that down.
COMi'.HSSIONER KENNEDY: Decisions won't do you any good until we resolve the question of the commission"s role in those decisions.
MR. BICKWIT: Well, it will do you as much good as a final decision of the board, which will be followed by action of the licensee, IJm certain, in reliance upon the boardJs final decision.
It avoids the closed circle to the extent it can be avoided by normal practice.
MR. CASE: We have this problem in every operating license hearing.
I just donJt know what the language is that the board has to find with regard to completion.
But itJs not in the regs.
YouJd have to get a notice Qf hearing for an operating license.
But I think it says that they have to find reasonable assurance that things will ba completed.
COMMLSSIONER KENNEDY: Wi.11 be?
MR. CASE: I think. That is, those where you need to fill out the record and exactly what has to be done.
They use
1 99. 05. 9 61 the reasonable assurance basis for requiring it.
2 CHAIRMAN HENDRIE: V~hat about this more than an 3
operating license, for instance?
4 COMMISSIONER BRADFORD:
My intention was to put this 5
on at least as to some issues, emergency preparedness was 6
among one of the i.ssues the staff has suggested, the one I 7
had most thought that other parti~i~ants in the hearing ~ight 8
have something.useful to contribute.
9 CHAIRMAN HENDRIE: It has less about it of the aspect 10 of count the number of quarter 20 bolts, and if it 1 s over JI 7, thatJs okay.
And if it1 s under -- okay.
12 COMMISSIONER BRADFORD: No.
I had not intended to I 3 erect a higher threshold than the OL situation.
14 CHAIRMAN HENDRIE: Because it seems to ~e 15 MR. CASE: They sort themselves 9ut as to ones that 16 you needed dstail and th.a board decides.
17 COMMISSIONER BRADFORD: That would be good enough.
18 CHAIRMAN HENDRIE: Peter, where I;m going is to leave I 9 it in no different fashion with regard to the cert if icat ion 20 of compliance with the requirements of the board than the 21 OL.
22 COMMISSIONER BRADFORD: So that the board would have 23 the discretion to say as to this particular set of actions, 24 we are --
25 CHAIRMAN HENDRIE: We want to be assured that you/ve
6199.05.10 gsh -
2 3
4 5
6 7
I'
.(.,
8
,I Q,
9 10 J I 12 13 14 15 16 17 18 19 20 21 22 23 24 25 62 completed.steps A, C, and 8.
MR. CASE: Tell me more exactly what yo~Jre going to have them do.
COMMISSIONER BRADFORD: In some cases, conceivably, in fact, that they have b.een done.
MR. CASEJ I think they may do it without any expressed language to that effect.
COMMISSIONER BRADFORD: If the hearing is on that basis, that 1 s fine with me.
CHAIRMAN HENDRIE: Okay. Well, I didnJt propose a more casual standard than that. And that may have been a massive sort of misunderstanding.
COMMISSIONER BRADFORD: It.,s the question of c.ert if fc at ion 6f compliance as again st that background. the board involved in that thatJs good enough; IJll take a look at the language to see if I can either clearly read that into it or add whatever words are needed.
If we go ahead on that basis, fine.
6199.. 06. 1 2
63 COMMISSIONER KENNEDY: ThatJ's the way I thought of it originally.
But I comE back to that question.
What is 3
the relevance of that, the commissionJs decision we discussed 4
5 much earlier at the beginning of this discussion?
CHAIRMAN HENDRIE: You mean*-
6 COMMISSIONER KENNEDY: Is the commission, then, as 7
to this quest~on, going to review whet~er it considers that 8
suffic_ient?
ThatJ"s whatJ"s rea.lly at i.ssue.
9 If it is not, if itJs going to take the board 10 certification on this regard, then IJ'm for it.
But if the
.l l question r.emains wheth.er the commi.ssion is going to have to go 12 back and satisfy itse.lf on all of these po_ints, discussion has 13 14 l 5 b e en a c ad em i c, i n t e re s t in g b u.t no t us e f u l
- COMMISSIONER BRADFORD: I think at that point, the commissionJs,decision is reviewable, I_think, within the 16 context of the record and whatever.
17 COMMISSIONER KENNEDY: 1~hat IJm saying is the 18 commission is going to reserve for itself 'decision as to 19 whether the board was correct in a~surning that compliance 20 has been at least adequate.
21 COMMISSIONER BRADFORD: J guess-I thought you were 22 asking a dif.ferent question; namely, once the board is out 23 of the picture, having rendered its decision, we would review 24 that decision as we normally would.
25 Then there is a separate conceivably 9 a separate
I I l 199.06.2 gsh -
2 3
I -
4 5
6 7
8 9
10
.1 I 12 13 14 15 16 17 18 19 20 21 22 23 24 25 64 set of actions on which the staff is certifying that it feels that, in fact, the necessary steps have been taken" COMMISSIONER KENNEDY: That-"s fine.
COMMISSIONER BRADFORD: I have thought what you were Bsking was the relationship of the commission to the staffJs certification.
That is, would we have them come in as we have in some of the other cases and sit :::!o*-vn and :r-un through the basis for the certification?
Conceivably, I gue.ss CHAIRMAN HENDRIE: V~hen you come to the point where youJve got a board initial decision and if it does say, okay, i t can re st a rt, if t he y do c er ta i n. t h in gs, t he n you h a v e the staff.coming in and filing papers with the board and the coffimi.ssion says theyJve done these things~.
ThatJs the point at ~hich the 10 days, the 7 days and.the 35 or all would begin to run.
~~d I presume, depending on the interest of any commiss.ioner or group of commi.ssioners, there should be a formal inquiry to the board 1 to the staff, to expound further on a particular compliance item.
Did you check the following or whatever?
And sort of very much like we often query the staff, but, of course,.in a se.tt ing consistent with a formalism of the proceeding.
Sure? okay.
So let us count that one as settled and
61 99. 06. 3 2
3 4
5 6
7 65
!Jll characterize the settlement as being that the compliance requirements here are to be consistent with the normal OL practice in a case where there is a hearing, obv.iously.
And_ there's some more to be dealt with. And I-'m not sure what you need to say in the order, this order, about that.
But since the subjects come up, why, it may be --
8 well,.. think whether it's useful to have some language and what 9
you would say.
I-'11.cha.racterize it as OL standards apply for 10 compliancE *
. 1 l Okay.
Next item, whether the requirements for the 12 long~term actions should be made immed~ately effect~ve.
13 You-" 11 rec.all that in the other B&W orders, we did, 14 15 16 indeed,- make the long-term requirements to the *extent they were enunciated in the order immediately effective.
That suggestion to me was that it is appropriate to do it here.
17 On the other hand, here we've also mandated what is 18 likely to be a fairly extended period for proceeding before 19 the plant comes up.
20 And I wonder if it--"s really necessary or useful 21 here or if, in fact, it wouldn_.,t be better to leave the 22 licensee to decide whether he wants to go ahead and start on 23 those. things now or t.o judge for himself what the scheduling 24 25 is likely to be and start them in a few months or do~n the line some place.
I I l 199.06. 4 66 I don~t know.
Comment?
2 3
4 MR. BICKWIT: I think you ought to get a comment from the staff on. this point, on their reaction to getting the licensee going on some of these actions.
I certa.inly think 5
it would be helpful.
6 COMMISSIONER KENNEDY: You say that if you make the 7
assumption that the re is an even chance and no more, the p.l ant 8
wiil be allowed to start?
9 MR. CASE.: I do not say that without assumption.
JO CO.MMISSI0NER KENNEDY: You say that with the Jl assumptio~ that the plant will be allowed to start at the end 12 of"this proceeding?
13 MR. *cASE: More likely not.
14 COMMISSIONER KENNEDY: It is more likely the decision 15 will be favorablE than unfavorable?
That 1 s the assumption 16 unde~ which you made that statement?
17 MR. CASE:
Yes. I don,,.t know whether that,,.s right 18 or not.
19 COMMISSIONER KENNEDY.: Okay.
I just want to be sure 20 of the basis.for your statement.
21 CHAIRMAN HENDRIE.: I vote no.
Do you add anything?
22 MRo VOlLMER: I agree with that, although the 23 proc..eeding is really liable to be -
it might be difficult if 24 they wait for the resolution before the proceeding, before 25 they start to be bound up at the end.
l 99. 06.5 gsh -
2 67 CHAIRMAN HENDRIE: It won~t bind.them up in the end in terms of a restart because of the long-term items, unless 3
they~re judged, would be later judged to be of such a 4
nature they would have to be implemented down the line, in 5
any case.
6 MR. VO.UMER: Presumably, setting a date.
7 CHAIRi1\\AN HENDRIE:.I think the se.ttlamen.t of a 8
lon9-term issue is part of the board decision here. That is, 9
this procedure.
10 COMMISSIONER KENNEDY: He's talking about the lessons
.11 learned.
12 CHAIRMAN HENDRIE: So am I.
13 14 MR. VOUMER.
Which does have dates as originally proposed, has dat~s.
15 CHAIRMAN HENDRIE: When TMI 1, when this order is 16 published and TMI 1 g.oes under the jurisdiction of a board, 17 in fact, the board will look at those and say the staff 18 thought they ought to implement this, this, and this by this 19 date.
And we can see ourselves being so adhering on those 20 issues and never mind that schedule.
21 1t becomes a matte~ of the boardJs jurisdiction, 22 on behalf of the commission, as long as. this proceeding goes 23 on.
24 MR. CASEl.One of the advantages of your making it 25 immediately effective, it says based on all of the information
5199.06.6 gsh -*
68 you have now, but no mors than that.
2 Do you think that these long-term things ought to 3
be done on that schedule?
It sends out a me.ssage to the 4
l i c e n s e e in. th is c a s e, and to other l i c e n s e e s
- 5 CHAIRMAN HENDRIE: WeJve got the message to other 6
licensees because it.,,s immediately effective on the other 7
plants.
The long-term 8
MR. CASE: The long-terms here are different because 9
our understanding has progressed since we specified the 10 long-term ones on the other B&W plants.
JI CHAIRMAN HENDRIE: It seems to me in this case, 12 perhaps uniquely, there may be special considerations that 13 are required, that the board will require some measures, both 14 15 short-te~m and long-term.
Th'at is, in this.case, rather than in the run of 16 plant cases, there are likely to be specific plants -- units, 17 specific requirements.
And I gue_ss, on balance, I would not, 18 because the board will have control of the situation, I would 19 not make the long-term requirements immediately effective 20 unless counselJs office can see some advantage in it that 21 I guess I donJt see at the moment.
22 MR. BICKWIT: I guess responding to that, I want to 23 know whether it-' s likely that these actions *,'Ii 11 be started 24 upon if not ordered?
25 MR. CASE: You give the licensee an excuse not to do
gsh -
2 3
- 4 5
69 anything until the board makes a decision.
It postpones those long-terms by definition for two years.
COMMISSIONER KENNEDY: There are two orders of dscision here.
That was the reason for my question.
The.first.order is the macro-decision.
Will this 6
plant be allowed to operate under any circumstances?
7 Second is th.e micro, which 3re, okay, what are the 8
special c.ircumstances which must be immediate before it can?
9 But until the first question.is answered, it seems 10 to.me that the licensee has been put in a situation by an
.11
. immediately effective rule requir.ing long-term actions.
He--'s 12 been put under unnecessary jeopardy.
13 But if you make ths short-term immediately effective, 14 he has cohsi~erable jeopardy, too.
He ~as to start these 15 right away.
16 Without those, the answer to the question, will this 17 plant ever be allowed to operate, is no.
So that he" s doing 18 it in the interest of getting a favorable decision.
19 The others, however, are not, unless we are going 20 to say that the plant can*"t ever operate until the long-term 21 decisions have been taken.
22 MR. CASE: This is inevitably resulting in th.e 23 considerable delay of.this plant impiementing a long-term 24 25 measure, as compared to other plants.
CO MM I-5S I ONER KENNEDY: Not in terms of opera ting time.
1 99. 06. 8 gsh -
70 CHAIRMAN HENDRIE: 1 guess 2
COMMISSIONER KENNEDY: The other plants will have 3
been operating all the time without these things.
4 MR. CASE: The time was basically chosen based on 5
the time it. would take to implement these things.
6 CHAIRMAN HENDRIE: For whatever that time was, 7
judgment is --
8 COMMISSIONER KENNEDY: The plant can be operated 9
safely until itJs completed.
10 MR. CASE~ Yes, except the implementation times of JI lessons learned are calendar times.
12 COMMISSIONER KENNEDY: I re.alize that.
But.
13 conceivably, they could be the same?
14 CHAIRMAN HE~DRIE: They res~lt in certain periods of 15 operations*for a number of plants.
For instance, in this one, 16 because of the time that it will take to get to a restart 17
_ decision, that you would have any longer operating time 18 without.the long-term fixes and factors, youJd have a good 19 chancev I would think thereJd be a good chance youJd have 20 le..ss.
21 My only thought here, perhaps coming away f ram 22 immediate_effectiveness of the long-term provisions, is that 23 it might be useful to let this proceeding get cranking a little 24 25 bit and begin to see where things shape up.
Let soma of the staff recommendations, there be a new issue from lessons
6199.06.9 gsh -
71 learned on longer term things in a couple of months.
2 And since we arenJt talking about operat.ion within 3
that time-frame, it might be useful to see how those things come along before ordering that they be done.
4 5
Let me s.. ee.
Does counsel have anything else to 6
add?
7 MR. BICKWIT: No.
I think you/re focusing on 8
precisely the right issueso 9
MR. CASE: Does it raise the question why specific, 10 in this order, long-term issues at all, be they immediately J l eff.ect.iv.e or not, things that have been done?
12 CHA1RMAN HENDRIE: I think that~s a fair question, 13 as a matter of fact.
One might choose to reduce the comment 14
- about. longer term i terns.in th is order to nothing more than 15 a paragraph, which. point,s out that the so-called short-term 16 items are not the last people will hear of requirements or 17 other units on this or other units.
l8 Let me s.ee where commissionersJ views lie on the 19 question, whether the requirement on the long-term action 20 should be made immediately effective in this order.
21 COMMLSSIONER AHEARNE: I think the requirements for 22 other than the short-term items should be the same on this 23 plant as they are on the others.
24 So I would just have a phrase saying that whatever 25 reauirements are laid by the -- laid on other operating plants
61 99. 06. 1 0 gsh -
2 3
4 5
6 7
8 9
10
.l 1 12 13 14 15 16 17 18 19 20 2 1 22 23 24 25 72 with operating licenses would also be laid on this one, which is another way of saying that both these, which are now immediately effective, should be immediately effective.
And then the others address them to other plants.
That they also apply to this one.
CHAIRMAN HENDRIE: That would be a set of language which, in affect, would say with regard to longer term actions, whatever is required for essentially similar units by the staff is required here?
COMMISSIONER AHEARNE: That*,. s right.
CHAIRMAN HENDRIEJ Is that practical?
- B I CK WI T : I t i s i f in e a c h ca s e we have an identity of requirement.
The minute you would start having
. one requirement for one piant and one +/-of anothei, you're.
going to be lo~t as to what this provision means.
COMr,HSSIONER AHEARNE: My po int is that some of these items in the long term which are ones which would be immediately effective because they are similar to ones already laid out, itJs another set that are not yet required in all places.
My point is -
I would also have some statement in there to enable (inaudible) lease on other operating plants, the requirements, for example, coming out of the Madison task force.
MR. BICKWIT: It probably would be bettar if itJs
6 l 99
- 0_6
- l 1 2
73 not self-executed, just in case we run into some complications where you could simply obligate yourselves to address the 3
immediate effectiveness.
4 COMMISSIONER AHEARNE~ What I-'m trying to avoid is 5
a point that I thought Joe was making, was that once the 6
board is established, that any actions on plants hav9 to 7
come Under the purview of the board on_ this plant.
And I 8
9 was trying to address his concern that that would then automatically delay a lot of actions in this plant, try and 10 avoid that.
Jl 12 13 14 15 16 17 18 1 9 20 21 22 23 24 25
61 99.07. l gsh -*
2 74 COMMISSIONER BRADFORD: I think the principle that needs to bs done at other plants should be done at this one 3
is certainly val_id.
I guess, though, that I share Dick./s 4
concern and maybe the way to put the two together is to 5
state the first proposition but leave t~e timetable to the 6
board.
7 CCJMMISSIONEr1 KENNEDY: That I would agree with.
8 Obviously, I would not wish to see this plant operate overtime 9
without all actions.
Like I simply would not count on the 10 plant operating overtime without all the necessary changes JI having been made.
12 The only question is can we? I even question whether 13 we can legally force someone into a position where he must 14 investigate~
He has no choi~e.
He must investigate to avoid 15 being in conflict witb our rules and regulations and orders 16 in somethin~ which he may not be able to use.
17 And we know that.
18 I just think that it is a questionable legality.
19 So, I think if we can do something the way Peter 20 is suggesting it, IJm perfectly comfortable.
21 CHAIRMAN HENDRIE: 1t must be lEgal.
The government 22 does it all the time.
23 COlilivHSSIONER KENNEDY: That doesn_jt make it legal.
24 It is only until such time as people get to court and, of course, we note, I would add, that the courtJs calendars are
199.07.2 gsh -*
2 75 rather full.
CHAIRMAN HENDRIE: I donJt know.
How does Peter.,,s 3
elaboration strike you?
4 COMMI.SSIONER AHEARNE: I.,,m still in favor of having 5
those things go into effect.
6 CHAIRMAN HENDRIE: You.,, re closer to an i mmed iat e. I 7
don.,,t know whether you.,,re quite in agreement with an immediate 8
effectiveness language for the long-term actions or some 9
adjustment to it.
10 COMMI.SSIONER AHEARNE: As far as those long-term and Jl other actions that may be required, what I am for is treating 12 this plant as though it weren.,,t in the hearing.
13 COMMISSIONER KENNEDY: If it weren.,,t in a.hearing, it wouldnJt be operatlng
- 15 CHAIRMAN HENDRIE: lf you want to let it operate.
16 COMMISSIONER KENl'lEDY.: If it were, I would agre.e 17 with you.
18 CHAIRMAN HENDRIE: If you want to let it operate 19 while the hearing goes on, why 9 I m prepared to vote with you 20 and then go on to the point at hand.
21 COMMLSSIONER KENNEDY: That.,,s exa.ctly the log.ic.: If 22 you're going to treat it liks other plants, you have to put 23 COMMl.SSIONER AHEARNE:
I.m.saying as far as those 24 actions, because a number of those actions, I think it would 25 behoove us to make sure that they get started.
199.07.3 gsh -*
2 76 COMMISSIONER KENNEDY: Only if you..,re making the presumption the plant is going to be allowed to operats at 3
some point
- 4 COMMISSIONER AHEARNE: I..,m making two assumptions:
5 A, that there is a chance that the plant wiil be allowed to 6
operate at some point; and B, that given that, it would be 7
operating.
8 I would be interested in having had those changes 9
made in the plant as soon as possible.
10 CHAIRMAN HENDRIE: What do you do about the
.ll possibility that the board may, in fact, end up requiring 12 somewhat different configuration for a long-term improvement 13 than you would have if it were -
14 COMMISSIONER BRADFORD: That won.,,t happen if we 15 have told them not to.
!.. think John..,s proposition is that 16 we tell the board what the configuration is.
17 COMMISSIONER AHEARNc: No.
I.,,m saying we tell the 18 licensee to make these chang.es.
If the board would come out 19 and say, as far as long-term changes are concerned, we 20 believe that this is a requirement.
And that differencs, in 21 some. significant way from what Director Bennett has a !ready 22 told plants to do.
23 We..,ve got a broader question for all those plants 24 25 that have given this direction to go this way 1 whether or not we shouldn..,t change it to go this other way.
61 99. 07. 4 gsh -*
.77 I donJt think that thatJs 2
CHAIRMAN HENDRIE: Are you happy having. M plus l in 3
the group of plants that now have to be changed where you 4
could have had N?
5 COMMISSIONER AHEARNE: I donJt think thatJs -
I 6
would be happier knowing -
balance that against the problem 7
that if the plant does coma o1fj that unless IJve had them 8
making these starts on these changes, itJs going to be 9
that much longer before they get to it.
10 CHA1RMAN HENDRIE: I"ll count you as an immediately
,l 1 effective vote.
12 COMMI.SSIONER AHEARNE: With that slight modificat.ion, 13 which is not the same thing as immediate e ffecti vene_ss.
14 CHAIRMAN HE~DRIE: Could you re~tate?
15 CO Mi1/2 IS S I O NE R BR AD F O RD : Ye s
- I
\\v o u l d say a s to the 16 long-term issues, that if the plant is, in fa~t, restarted, 17 we would contemplate that it would do so under the same 18 regiment as other plants to which thesa actions apply.
19 But due to the fact that the matter is in hearing 20 and that both the certainty of restart and the timing of 21 restart are _in question, we would leave to th..e Licensing 22 board a decision as to the timetable as ordered by the 23 commission.
24 25 If th.e licensee prefers to go ahead and undertake the actions at his own risk, thatJs all rightr too.
6 l 99. 07. 5 gsh -
2 78 COMMISSIONER KENNEDY: I would certainly not suggest that we not let him do it, but rather, that that be an 3
option.
4 But he, likewise, might not be penalizsd for it.
5 CHAIRMAN HENDRIE: Have you got_ this version?
6 COMMISSIONER BRADFORD: Ask him a quest.ion.
7 MR. BICKWIT! Are you ordering that anything be done, 8
simply telling the board?
9 COMMISSIONER BRADFORD: No. What IJm doing is telling 10 the board that the commission views this plant in this Jl way, with regard to these actions.
12 MR. CASE: ThereJs a specific list of long-term 13 things that would go along with this language.
14 COMMISSIONER KENNEDY: It.is the lo_ng-term list that 15 we already have.
16 MR. OSTRACH: Are you suggesting that the board can 17 order the immediate effectiveness of these actions during 18 the hearing?
19 MR. CASE: The board can order when they should be 20 implemented.
The board would determine that.
21 MR. OSTRACH: It wouldnt order it at the beginning?
22 COMMISSIONER 8.2ADFORD: To the extent that the staff 23 has associated timetables 'ldth these a.ctions already, and that 24 they will give most of tha licensees, say, six months from 25 now.
And if its the applicant~s choice, the licensee~s choice
6199.07.6 gsh -*
79 2
not to begin the actions until the licensing board issues its order, then~ just off the top of my head, it would seem 3
reasonable that this licensee have six months fiom that time
- 4 MR. CASE: The board could say IJm sorry, thatJs a 5
short-term item. Now youJ.ve got to have it done before it 6
is started.
7 CHAIRMAN HENDR1E: SupposE itJs a six-month item.
a COM?v\\ISSIONER BRADFORD: Yes.
That possibility is 9
there also, of course.
The board feels that the timetable 10 should be shorter, well, for any number of reasons.
They can
.11 do that.
12 COMMI.SSIONER KENNEDY: And those kinds of quest ions
-13 would be subject t.o motion between the board and the licensee.
14 MR.CASE: Ar.guments by a..11 parties.
15 COMMISSIONER KENNEDY: ThatJs perfectly reasonable*,
16 it seems to me.
17 CHAIRMAN HENDRIE: Does it get to be -
let;s see.
1 8
. Th is, then, i s a boa rd de c i s ion ?
19 MR. BICKWIT: An issue in the hearing.
20 CHAIRMAN HENDRIE: JtJs an issue in the hearing..
21 What Steve is frowning ~bout is how does the board make any 22 schedule stick until itJs published its order, has completEd 23 the problem in the hearing and published its final order or 24 its initial decision?
25 MR. BICKWIT: Unless we can publish a partial decision
6199.07.7 qsh -*
2 80 CHAIRMAN HENDRIE: Unless we set this decision up in a special way with that and let the board come out a way 3
on it and let the board review on it, it may not be 4
implementable.
5 MR. OSTRACH: In another part of the order, weJve 6
already directed the board to the short-term.issues first 7
and only then, approached.the long-term issues.*
8 So, I mean, that. would be what was left before them 9
at the endo _ If they did issue the remainder of their decision 1 0, on_ the long-term issues and they p.ic ked a tim.etabl e, presumably J l the lessons learned timetabl.e of January 1, 198 l, is based on 12 people working, starting right now.
13 14 We..,.re talking about 18, 17 months from the time you tell 'them to go.
15 So, TMI l, assuming the board used.that timetable, 16 would have to be given 17 months to complete the long-term 17 actions, even assuming theyJre the same.
18 So that would be the last plan the United States 19 presumably would have for a long-term action b.eing implemented.
20 MR. BICKWIT: It wouldn t be possible for an order 21 to be in effect until the board reached a partial decision, 22 it came up to the commission and the commission made that 23 decision?
24 COMMISSIONER BRADFORD: I just don..,.t see how we can 25 have it both ways.
That is, conduct a hearing o~ nine months
S 1 99. 07. 8 81 2
to a year in which there is the possibility that the plant wouldn..,t be allowed to restart.
And at the same. time, the 3
board were to take a bunch of actions that it could, I would 4
5
.think, would never take for restart.
COMMISSIONER KENNEDY: How could it?
The public 6
utilities commission would be after it.
7 MR. CASE: The distinction between the short and 8
long term, that argument falls because that..,s just what you..,re 9
doing with short term.
10 You..,re ordering them to do it with no guarantee that
.11 the plant be a 11 owed to operate.
12 MR. BICKWIT: You..,re not doing that.
YouJre saying 13 that the only way that they can get the plant up is if they 14 15 do it.
You 1 re not ordering it.
MR. CASE: In prac t.ic e, you are.
16 MR. BICKWIT: But they_.,re not subject to any kind 17 of penalty if they choose to.
18 COMi'vlISSIONER BRADFORD: If you choose to wait until 19 they have a board order, we can restart by a certain amount.
20 COMMISSIONER KENNEDY: The fact that they know by 21 the outset.
22 COMMISSIDNER BRADFORD: That_.,s right.
23 MR. OSTRACH: In e.ffect, Commissioner, you..,re 24 proposing no immediate effectiveness at all.
Just leaving this 25 issue as any other issue.
The board will consider it when the
l
. 199.07. 9 82 I-*
2 3
4 board decides to order it.
It will set a timetable by which it must be completed.
COMMISSIONER BRADt=:"ORO: That_,,s right. I guess I_,,m going a little bit beyond that as to giving the board_the 5
guidance that it doesn_,,t expect this plant in the long run, 6
if _it-"s permitted, to operate, not to operate under the same 7
regiment as other plants to whom those actions apply.
8 MR. BICKWIT~ As to the legality of ordering that 9
immediately effective, I wouldn-'t subscribe to your statem.ent.
10 Was it Your statement that it was probably illegal?
JI COMMISSIONER KENNEDY: It seems a question of 12 legality.
13 14 MR. BI CKWI T: I wouldn-'t subscribe to that.
You would be in on a court tes-t and you_,,d be trying to establish that 15 this really w~s health and safety related and likely to be 16 of some benefit from that standpoint.
17 COMMISSIONER KENNEDY: My point is thet I find that 18 awfully hard.for myself to argue.
I can..,t convince myself 19 of that unless I make a simple presumption.
That presumption 20 is that at some point,* that plant will operate.
21 22 23 24 25 e
CR 6199 #8 LEONE/PV 83 I
I I
MR. BICKWIT:
I think the Commission wou]d be making I 2
3 some assumption along those lines.
It would not have to be of
- a. hundred percent assurance to sustain the action of the court.
I I I i
4 5
COMMISSIONER KENNEDY:
But it's got to be a reasonablJ i
6 I
presumption.
Okay?
That's what Ed said.
He said there would I
be more chance than not.
If we're prepared to make that assump-7 tion, stated clearly, if we're prepared to do that, then I have 8
no difficulty, I guess, with an immediate effectiveness order.
9 But that's different debate.
One could get into a great 10 11 12 philosophical argument about that question..
is the place for it.
I don't think this COMISSIONER AHEARNE:
I think, though, that's slightl 13 different.
I believe there are a number of. actions that are on l4 a longer time scale.
They are only on a longer time scale 15 16 because the conclusion is it's going to take a longer time to get there.
Were they able to be done sooner, they would have 17 been asked to be done sooner.
So, they are all items that, in 18 19 20 the conclusion of the NRR task. force, is -- are items that should be done.
So, then, it is the question o.f how soon can they be 21 done.
And what we are essentially saying is:
If we allow this 22 not to go.into effect immediately, is that for this plant, after:
23 24 Ace-Federal Reporters, Inc.
25 the board has reached its decision and if the Commission, upon review, and the board both agree that the plant should be allowed to up, there may well then be a set.of items which we could have
pv2 84 had done -- knew should have been done but will have allowed I
not to have been done.
2 3
i i
I COMMISSIONER KENNEDY:
That 1 s the dilemma.
That's thEj i
4 argument that this should be treated like other plants.
But it's 5 not like other plants; that 1 s the problem.
I I
I I
6 If we can put it in the same posture as other plants,!
I I
7 then everything's right.
It all comes out even.
8 9
10 1 1 CHAI&'vl.AN HENDRIE:
I tell you what.
After much debatl, I guess I am ending up back on the immediately effective side.
Counsel, let's see.
How does it read now?
What doe the draft say now?
12 MR. BICh"'WIT:
On immediate effectiveness of long-term 13 orders, the draft doesn't order anything to be done in the long 14 term.
15 CHAIRMAN HENDRIE:
All right.
But do you have a fair 16 idea from the discussion on the job site what the language would 17 be if it were that way, if we wanted to go that way?
18 19 MR. BICK1i'7IT:
Yes.
I I
CHAIRMAN HENDRIE:
Would you write that down, and 20 would you also write down the language or what it would look I
lik~,
21 Peter's version, and I don't know which one to put in the next i
22 draft.
Put them both in, I guess.
23 MR. OSTRACH:
There are three mergers.
I believe 24 Commissioner Ahearne' s proposition was different from simple Ace-Federal Reporters, Inc.
25 immediate effectiveness.
pv3 85 CHAIRMAN HENDRIE:
No.
I have moved over to John's 2 position.
3 MR. CASE:
I believe his was simple immediate effec-4 tiveness.
5 COMMISSIONER AHEARNE:
No.
Because, for example, 6 Carlton hasn't yet told all the other plants to do the task 7 force i tern.
8 9
10 be.
11 12 ate 13 MR. CASE:
He will, next week.
COMMISSIONER AHEARNE:
When he does, then it would That's the slight difference.
MR. OSTRACH:
The two options are that sort of immedi-ef;fectiven,ess, or Commissione+ Bradford's proposition.
MR. BICKWIT:
And no immediate effectiveness.
- That 14 is one of the options.
Immediate effectiveness as described..
15 No immediate effectiveness.
And the Bradford option.
Those 16 are your three options.
17 CHAIRMAN HENDRIE:
Well, I don't think I have a vote 18 for but two.
19 MR. BICKWIT:
I think I have a vote for no immediate 20 effectiveness.
21 CHAIRMAN HENDRIE:
Dick, I thought you were agreed 22 with Peter?
23 COMMISSIONER KENNEDY:
I think I agree with Peter 24 when I see this language.
Ace-Federal Reporters, Inc.
25 CHAIRMAN HENDRIE:
The Bradford-Kennedy axis has
pv4 86 struck again.
2 COMMISSIONER KENNEDY:
You know, if yo.u let emotion 3
run away with your logic, it always happens.
4 Counsel, I refer to your recent draft order submitted 5
to us under date of July 25, page 7.
And from that point for-6 ward is a discussion of the longer-term actions.
7 MR. BICKWIT:
Yes.
But there's no order requiring s that they be done.
9 COMMISSIONER KENNEDY:
That's the question we're 10 discussing.
l l MR. BICKWIT:
I understand.
12 CHAIRMAN*HENDRIE:
No.
I just asked him if.there 13 was effectiveness lan*guage iri it.
14 MR. BICKWIT:
There is not, because there isn't any 15 order language.
16 CHAIRMAN HENDRIE:
Okay.
Well, I think you've got 17 the Ahearne version and a Bradford version at the moment.
18 COMMISSIONER KENNEDY:
That's not correct. It says 19 the Commission has additional concerns which, though they need 20 not be resolved prior to operation, must be satisfactorily 21 addressed in a timely manner.
22 MR. BICKWIT:
In the operative section, with respec~
23 to the order which is Roman III, where it says it is hereby 24 ordered, there is no reference to the longer-term actions having!
Ace-Federal Reporters, Inc.
25 to be done.
pvS 2
3 87 COMMISSIONER KENNEDY:
All right.
You win this time.
CHAIRMAN HENDRIE:
Okay.
I have, once again, led this Commission squarely up the hill to an impasse.
But I think 4 we now have, or at least as soon as Steve manages to figure out 5 what the ends of the table mean there, we have two versions.
An
- 6 I expect, the next time around, we' 11 be able to decide.
7 Three:
Whether the Commission should remove from the 8 order any implication --
9 COMMISSIONER AHEARNE:
When do you intend to break lO this?
11 CHAIRMAN HENDRIE:
Well, I *believe I have an appoint-12 men t at 2 : 0 0
- 13 14 15 16
.Jt.... __
COMMISSIONER AHEARNE:
My secretary has given the impression that 12: 00 might be a good time.
coming in at 12:00.
I have people C01.1MISSIONER KENNEDY:
I don't know what the issue is 17 in No. 3.
If we can start and eliminate that --
18 19 20 COMMISSIONER BRADFORD:
I think I raised it in the first place as to what was on page 1 of the order.
MR. BICKWIT:
Commissioner Gilinsky was going to 21 raise something since then.
22 COMlvJ:ISSIONER KENNEDY:
If this is his question, I 23 suggest it would be useful if he was here, which I note he is 24 not.
Ace-Federal Reporters, Inc.
25 CHAIRMAN HENDRIE:
Good thought.
I i
pv6 le 88 COMMISSIONER KENNEDY:
Since I spent many years 2 debating issues which were raised by others when they were not 3 there, only to have the opportunity to have to do it all over 4 again, I suggest it's a very wasteful process.
5 CHAIR..1'1AN HENDRIE:
Now, Monday next, I think we may 6 have two Commissioners absent.
That hardly makes Monday a 7 practicality.
Tuesday, we have a couple of major offices making 1 8 budget presentations, and it's going to be a long, tough day at 9 the table.
10 Can you stand to try to squeeze in further considera-l l tion on this order?
12 13 COMMISSIONER AHEARNE:
Yes.
CHAIRMAL""\\J HENDRIE:
On Tuesday, it's going to be a.
14 long, tough day at the table on the budget.
I am just asking 15 whether you feel you can stand TMI-1 order discussions.
16 COMMISSIONER AHEARNE:
Yes~
Particularly if the 17 counsel will have drafted up something that would help us.
18 19 20 CHAIRMAN HENDRIE:
Yes.w I must say, the memo I got last night, I thought, for me, managed to put those three items that they treated in shape, where I felt we could do something, 21 and we have done something about them.
So, I think it was very 22 helpful.
23 24 All right.
Tuesday?
COMMISSIONER KENNEDY:
Let's see.
On Tuesday, is Ace-Federal Reporters, Inc.
25 the first order of business, if my calendar is correct, today
pv7 89 is the 27th.
Tomorrow is the 28th.
Sunday is the 29th.
2 Well, 30 days after July 2 gets us to the 31st, 3 through the 31st.
So, Tuesday as the first order of business, 4 we will have to have an order which does something vis-a-vis 5 the current order which expires on that day.
6 MR. BICKW"IT:
I think that would be advisable.
7 COMMISSIONER KENNEDY:
Okay.
So, I guess it would 8 have to be the first order of business, since the order that we 9 are supposed to be issuing on that day is one which, according 10 to our previous order, wi.11 describe our concerns, you know, 11 the things we are talking about are not the concerns.
We have 12 never described those yet, and we still owe the public an.order 13 in this regard.
14 15 16 17 COMMISSIONER AHEARNE:
The concerns were described.
COMMISSIONER KENNEDY:
No.
Well, in the draft --
COMMISSIONER AHEARNE:
Yes.
COMMISSIONER KENNEDY:
I know.
But we haven't been 18 discussing those for several days.
So we need to decide what this 19 20 21 22 order that we will discuss on Tuesday, hopefully, will be about.
Unless we wish to be in violation of our orders.
I vote "No" on that issue, if given the opportunity.
CHAIRMAN HENDRIE:
Well, you have to prepare for us 23 a suitable fill-in-a-slot order. It's a pity Leo isn't here.
24 H:e 1 s had a lot of experience on that, from S-3..
Probably knock Ace-Federal Reporters, Inc, 25 out what we need.
pv8 90 Let me ask.
At the moment, the schedule says 9:30 2 to 12:30, NRR.
2:00 to 5:00, research.
What do you think you 3
could stand by way of scheduling?
What I would like to suggest 4
we do is to move opening time up to 9:00, make a bold pronounce-5 ment that I intend to bang the gavel and go at 9:01, plan to 6 terminate that at noon, allow people 30 minutes for a sandwich, 7
come back to the TMI order at 12:30, and run until something 8
like probably 2:30, you know, allow walking down the hall break,,
9 and then go till 5:00, 5:30 on research.
10 COMMISSIONER AHEARNE:
That's fine, Joe.
It's also 11 fine if the three of you wish to continue going through these 12 points.
I 13 14 I have no problem.
COM.MISSIONER BRADFORD:
I have to go, also.
CHAIRMAN HENDRIE:
I will propose that the next TMI 15 that we meet on Tuesday, along the lines Sam, please amend the 16 schedule and let people know.
It will be a brutal, long day 17 at the table, I must say.
But I think we need to get to it.
18 Now, Counsel, we have gone through items Roman I, II, 19 and III, and decided what to do about the!]l,
- at least on a tenta-20 tive basis.
I would ask for a redraft incorporating those 21 22 things.
We've also dealt with item Arabic 1.
On Arabic 2, 23 we at least came down, and you have some work to do to get with 24 the two Commissioners concerned and get that aspect, language Ace-Federal Reporters, Inc.
25 for that.
The two sets of language for the long-term immediate
pv9 f,J 2
3 4
5 6
7 8
9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc.
25 effectiveness.
Now, on item 3, that, in fact, deals with some dis-cussion of what are the Commission's bases for concern, and are they all enumerated in this order; are they limited to the thingi I
that are in the draft, or aren't they necessarily limited to the!
I things in the draft?
I think some comment from you and a further memorandl' based on the good work that you got out of last night might be i
helpful in shaping the views here.
Let me just suggest that the alternatives seem to me to be:
A, that the concerns, language and list of actions languag~ which are clos'ely related and are essentially the same I
thing, *just stand as they are; and that what we ~ither understan9 I
or include as specific language, understand that the sufficiency!
of these items is at issue in the hearing, maybe at issue; and that they represent a provisional list in some sense.
That is, if we knew of other concerns, if we could enunciate other con-cerns at the moment, we'd put them down; but these are the con-cerns.and the actions that go with them that we have been able to enunciate.
We don't assert that the proceeding itself may not turn up others, and those will be considered.
And the other way to go about it would be to take all of that stuff out of the order,to deal with the concerns in a more general way, maybe just that theTe's one paragraph there I
pvl0 92 with one, two, three, and so on.
And_,then say the actions 2 required to cure those are whatever the staff submits and the I. __
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal. A epohers, Inc.
25 board determines from the proceeding are necessary, sort-of throwing it all back into the proceeding.
And I think I don't propose that, you understand.
But in talking around, why, I found some feeling that that would be a way to go.
How practical it is in terms of trying to pro-vide some guidance to the board in the proceeding and getting on with the thing, there may be some down sides to it from that standpoint.
COMMISSIONER KENNEDY:
Item 6, it seems to me, should be* dealt with in conjunction with item 3.
COMMISSIONER AHEARNE:
Actual*ly, i tern 6 is already incorporated in my option.
CHAIRMAN HENDRIE:
Yes..
I think that's right.
COMMISSIONER KENNEDY:
Yes.
CHAIRMAN HENDRIE:
Good..
You can remake this list and note that I have 6s collapsed upwards.
COMMISSIONER KENNEDY:
No.
The question. still arises if, in fact, a choice other than that proposed by Commissioner.Ahearne is chosen in respect to question 2.
The question still arises.
CHAIRMAN HENDRIE:
Okay.
COMMISSIONER KENNEDY:
And it ought to be discussed, it seems to me, in conjunction with discussions of item 3.
In
pvll 93 connection with item 4, if you're going to discuss it, I would 2 appreciate a discussion which didn't go just to the question of 3 whether -- although that's a very interesting and fundamental 4 question -- that go with the question and, if so, how.
5 6
7 MR. BICKWIT:
That was the intention.
COMMISSIONER KENNEDY:
Okay.
And as to item 7, one further request:
If that is to s be discussed, I would like an unequivocal statement of law from 9 the counsel indicating our authority to provide such.
I please 10 underline the word "unequivocal."
1 1 CHAIRMAN HENDRIE:
I t:p.ink you have overconstrained 12 the system.
I am not sure it's capa~le of producing a solution~
13 COMMISSIONER KENNEDY:
I believe we can or shouilid 14 discuss the disbursement of public moneys.
It must be legal.
15 The Comptroller General has indicated that many, many, many 16 times.
17 18 19 in my view.
20 MR. CASE:
Not necessarily unequivocally.
COMMISSIONER KENNEDY:
Oh, unequivocally, indeed, CHAIRMAN HENDRIE:
See what you can do helping us out 21 with a memorandum on these i terns..
22 23 24 MR. OSTRACH:
Roman II on discovery was not resolved.
CHAIRMAN HENDRIE:
Yes, it was.
Roman II.
MR. OSTRACH:
Excuse me.
Acs-Federal Reporters, Inc.
25 CHAIRMAN HENDRIE:
In your redraft, you go for the
pvl2 2
3 limited discovery language, just as you 1 ve got it.
MR. OSTRACH:
Roman III, discovery.
CHAIRMAN HENDRIE:
Let me go ahead on discovery.
I 4 have got a vote of two, one and one for limited discovery, the 5 tightly monitored option, with a compilation sentence, John's.
6 And just do it like the regs with a compilation schedule for I
I 7 Peter, and Vic can come in and create deadlock or whatever, I
along 8
the line.
9 And what I have said about these things, you ought 10 to get alternative language in your hip pocket for the Ahearne 11 and Bradford versions of discovery.
And I can help you with 12 that.
That's one of the few places I can help, if your notes 13 are confusj ng.
14 On the review process, we've got a 10, seven, 35-day 15 overall for Commission action on listing immediate effectiveness 16 And cross-examination, it's the close scrutiny by the board 17 version, as amended.
18 19 MR. OSTRACH:
I have that.
CHAIR.MAJ."q HENDRIE:
Okay.
On 1,. Arabic 1, it's OL 20 standards apply.
We've got a deal.
21 Nowj I don't know quite whether, A, there needs to 22 be any, or, B, what the language is.
But -- I don't know.
23 24 MR. OSTRACH:
I have some language.
Ace-Federal Reporters, Inc.
CHAIRMAN HENDRIE:
The meeting is, in fact, over.
(Whereupon, at 12 :15 p..m.,. the meeting adjourned.)
25 end#8 I