ML22230A137
| ML22230A137 | |
| Person / Time | |
|---|---|
| Issue date: | 10/10/1979 |
| From: | NRC/OCM |
| To: | |
| References | |
| Tran-M791010 | |
| Download: ML22230A137 (43) | |
Text
BETURN TO SECRETARIAT RECORDS NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
PUBLIC MEETING DISCUSSION OF PETITIONS SEEKING LEAVE TO INTERVENE IN A HEARING, PHILIPPINE APPLICATIONS Place -
Washington, D. C.
Cate -
Wednesday, 10 October 1979 Pages 1 -
40 ACE
- FEDERAL REPORTERS, INC.
Official Reporten 4-44 North Capitol Street
- Washington, D.C 20001 NATIONWIDE COVERAGE* DAILY Telephone:
(202) 347-3700
CR7617 DISCLAI:i:-IBR This is an unofficial transcript of a meeting of the United States Nuclear Regulatory Corrrrnission held on Wednesday, 10 October 1979 in the Commissions's office.s at 1717 H Street, N.. W., Washington, D. C.
The meeting was open to public attendance and observation.
This transcript has not been reviewed, corrected, or edited, and it may contain inaccuracies.
The transcript-is intended solely for general informational purposes.
As provided by 10 CFR 9.103, it is not part of the formal or informal record of decision of the matters discussed.
Expressions of opinion in this transcript do not necessarily reflect final determinations or beliefs.
No pleading or other paper may be filed with the Commission in any proceeding as the result of or addressed to any statement or arg-u.ment contained herein, except as the Com.mission may authorize.
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25 BEFORE:
UNITED STATES OF :AMERICA
- NUCLEAR REGULATORY-COMMISSION-PUBLIC J".t.1EETING DISCUSSION OF PETITIONS SEEKING LEAVE TO INTERVENE.IN A HEARING. PHILIPPINE APPLICATIONS Room 1130, 1717 H Street, N~W.,
Washington, D.C.
1 Wednesday, 10 October 1979 The Commission met~ pursuant to notice, at 9:35 a...
DR. JOSEPH M. HENDRIE, Chairman VICTOR GILINSKY, Commissioner RICHARDT. KENNEDY, Commissioner PETER A. BRADPORD, Commissioner JOHN F. AHEARNE, Comrnission~r ALSO PRESENT:
Leonard Bickwit, Jr., Esq Carlton R. Stoiber, Esq.
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PRO CE E D.I*N GS CHAIRMAN HENDRIE:
Why don*'t we come to order?
Commis.sioner Kennedy will join us in a little while, but in the.meantime suggests that we go*ahead..
- The Commission meets this morning to discuss petitions for Leave to intervene on a hearing on-an application for export of a.reactor-to the Phil~ppines.
I guess there are several l.icenses-concerned in that matter.
There are several. propositions before the House this morning.
The principal one I guess would be whether or not the Commission is of a mind to grant petitions for a hear-ing in the matter of these* licenses.. Arioth.er would be con-solidation of the several licenses into a single proceeding.
Third would be the scope and form of such a proceeding if the Commission determined that one o~ght to be h~ld on the applica-tions *for export.
And then a matter which comes.before all of that for Commission decision is a petition to present oral argument to the Commission this morni.ng on the question of-whether or not such a proceeding as enumerated previously should be held, The Commission has advice from the General Counsel on the latter matter which I think we have to turn to first.
We do not normally have oral presentations at these sorts of meetings.
These are discussion sessions.of the Commission but are not especially well adapted for presentation*
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of-oral_ argument between parties who would like.to influence the outcome, one way or the other.
On the other hand, we have in fact done it in times past *.
I have a notion that the sense of the Commission on whether or not -we should consolidate into a single proceeding and have a proceeding on the several export licenses in the Philippine case is not apt to be a long-debated and agonizing one for the Commission this morning, and it seems to me that we might simply move forward,* dealing first with this request for a presentation of oral argument, and then getting on with
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the matter of the proceeding itself.
I'll note:that under the Commission ls.rule, a hear-14
. ing of some form or other will be held. on an export matter in 15 the event that two Commissioners feel that it I s appropriate to 16 do so; that is, this is one of the fairly ~are circumstances 17 in Commission proceedings where a. majority of the Commission 18 do not govern.
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- Well, with -regard to the request for presenting 20 oral arguments.on why we should have a hearing, the Counsel 21 22 23 suggests that it be denied~ that it is not necessary.
He suggests that under his recommendation with r~gard* *to having a proceeding that the matter.would be covered.
Secondly, that 24
- other participants in the matter would be somewhat late ad-Ace-Federal Reporters, Inc.
25 vised if.we were.to entertain.oral presentations from the
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parties this mcirn~ng, ~and thirdly notes his general disinclina-tion to convert the Commission discussion sessions into*oral arguments between parties on matters.
My own view is that oral argument is really not necessary for the Commission to get on-and cons.ider the matter of.whether we.should have a proceeding, and that would.be my recommendation to them.
I would ask for comment.
COMMISSIONER AHEARNE:
I would agree there is no need for the oral argument.
On the other hand, I 0 don't neces-sarily agree with all the arguments in the General Counsel's papers*since I disagree with the recommendation of the other paper.
CHAIRMAN.HENDRIE:
We.get to the vote*but not necessarily by the same route.
COMMISSIONER AHEARNE:
I agree with that.
MR.*BICKWIT:
Our arguments in the other paper were 17
- not the most important arguments with respect to whether or not 18 to have oral argument.
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Yes.
COMMISSIONER GILINSKY:
I agree that no oral argu-ment is needed today but I think our position would be a little firmer, cin firmer ground, if we had been more consistent*in 23 the application*of that policy in the pas~.
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COMMISSIONER BRADFORD:
I agree with that.
I think 25 that at least the second and third General Coun~el's reasons
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are sufficient in this case *.
CHAIRMAN HENDRIE:
Okay.
The sense of the Commis-sion clearly is that we will not have presentations from the parties this morning in determining whether or not we should have a proceeding *on these export:matters.
With regard to consistency in the past, Vic, it reminds me.
Is it in Gilbert and.Sullivan, the line that goes, "No, *.never.. Well, hardly ever. 11 MR. STOIBER:
That I s Iolanthe.
COM..~ISSIONER BRADFORD:
I knew we had him here for 11
. a reason.
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25 CHAIRMAN HENDRIE:
You may be transferred to OBE if you continue.with that sort of expertise.
(Laughter.)
Now turning to* the principal matter before the Commission, let me see if I can enumerate.the licenses at hand.
There is an application to export low enriched uranium to the Philippines, XSNM~l471.
There is an application to export a reactor to the Philippines,.xR~120, and an application covering some compo-nents for the reactor and plant, XCOM-013.
Have I succeeded in covering the* license waterfront here, or are there yet other applications that have escaped my notice, lurking?
There are none.
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6 COMMISSIONER GILINSKY: *. We don't have the State 2
.Department view on the low enriched uranium export?
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CHAIRMAN HENDRIE:
I don't think so.
I think the XSNM-1471 is rather recent.* The reactor and the component 5
applications have been on hand for some time* and we 1 ve been--.
6 I'm glad we didntt hold our breath.waiting for the views of 7
the Executive Branch on the reactor*application but they've B
finally come in and it now is incumbent upon the Commission 9
to go forward and take action.
10 You're right, the fuel application I believe is ll recent and we do not have, so far as I know, Executive Branch 12 views on the fuel.
13 MR, SHEA:
That I s correct.
14 MR. STOIBER:
They have indicated that they will 15 withhold-filing those views until the Commission has taken 16 action on the other pending licenses.
17 CHAIRMAN HENDRIE:
Let me ask a question then, be-18 cause what I amgoing to do is to recommend to you that if we 19 decide that a proceeding is appropriate in considering one or 20 *another of these that we consolidate the group of them.
Does 21 not having. the Executive Branch views and the intention of the 22 Executive Branch not to forward them until we.deal with the 23 other licenses,
- does that suggest that the 14 71 application 24 can't or ought not to be consolidated for 9ur *purposes here?
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25 MR. BICKWIT:
No,. it really doesn't.* Our view.is
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that the order of events in which you ought to take.these things*up is to.take up the consolidation issue last in that our advice on whether to consolidate will depend on which options you choose with respect to what kind of proceeding you have and whether you want a proceeding.
7 But if you choose to 'consolidate the three, you can simply waive the rule on not having a hearing until Executive Branch views are submitted, take a Commission vote to do that.
It would be a reasonable course.
COMMISSIONER AHEARNE:
I would opt not to consoli-date the fuel.
- COMMISSIONER BRADFORD:
Are you making the assump-*
tion that one day the reactor will have fuel in it?*
COMMISSIONER AHEARNE:
Yes.
CHAIRMAN HENDRIE:
I guess that means in deciding on the reactor application that you would.in fact be including the general proposition on the fuel.
That is, am I likely to be faced with two sets of hearings?
COMMISSIONER AHEARNE:
Not on my part, no.
COMMISSIONER BRADFORD:
Well, I wouldn'*t want to foreclose other questions about the fuel but I certainly would.
not want to hear the reactor question over again.
COMMISSIONER AHEARNE:
Yes.
It doesn't seem lumping them all together it would seem tobe necessary.
CHAIRMAN HENDRIE:
In any case Counsel thinks we
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ought to deal with consolidation and to what extent after we decide on other matters.
I have indications of opinion from the.Commission on whether we should.conduct hearings.. I-will note by the way 5
that the Commission's legal advisors believe that 0.a hearing 6
- in this case is not available as a matter of right to the 7
parties.but certainly, obviously can be granted at the discre-8 tion of the Commission.
9 10 11 12 MR. BICKWIT:
.. Put another way, consistency with your past decisions would not make it available as a matter of right.
COMMISSIONER AHEARNE:
I would opt for written 13 hearings and I would opt for the option where you had both :the -
14 jurisdiction.and the substantiv~ decisions at.the same time, 15 which I think is this Option 3.
16 COMMISSIONER BRADFORD:
Let me just ask:
By 17 consistency with past decisions you have in mind*post-NNPA 18 decisions or pre-NNPA decisions?
19 MR. BICKWIT:
Pre-NNPA decisions.
We have used the 20 term "hearing.as a matter of-right" to :connote hearings to 21 *Which the petition~r.is entitled as a.matter ~f his own in-22 terest*under the.Atomic Energy-Act, 189A of the Atomic Energy 23 Act.
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We have used the term "discretionary hearings to c9nnote the hearings to which he might be.entitled in fact 25
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--__ The'distincti6r1.betwe~ri *hearings. as_ *a matte*r. of.
right-and.hearings as a.discretionary matter really is'adis;..
tinction.in degree.: It is* riot: to *.. say that yoti have no dis-cretion in one, ca~e: ~~d absqlute* discretion -in. the :othe*~- case..
BU:t we'.* have- ~sed
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that :tincler i89A _of th~ Atom_id Energy A.ct, if you stay.con-sis tent with<_your previous n~lirigs, the '.petitioners would_
not be entitled.under that section.to come into this.proceeding
. COMMISSIONER BRADFORD:
- Is there.. such. a thing as **a.
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hearing as a matter of right.under the NNPA?
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- BICKWIT,:
.As.* I* say, that term has not been.used.
However,**an*:argumertt can"be:~~dethatthere* is a*right.to a.*
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hearing under the NNPA,i eve~ the "ri.ght to what we call in-our paper. a._ discretionary hearing under* the NNPA.
You are :i::'e-16 quired*to, grant a ;h.earing*i£ you find that the hearing would
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- be* in tjle public interest arid *would facilitate your. reaching 18 decisions on your._ statutory -determinations.
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. Those are veryd.iscretionary'.findings. -However, you would not be able to* say. Yes.:, -:~hose f indirigs can be made
-and we_deny the hearing~.
And if.you decided-that.they could not -be made., the,petitioner~-
Judicial -reviewc* would. li.e on 23
_that _question, on'- an arb.itr~ry and*capric,ious basis.
-24 So., as.a_ practical matter yo:u.have, dis.cr*etiOn under Ace-Fecferal Reporters, Inc.
25 th~ 'NNPA, but there a_re 'rights conferred under the N,NP,A.
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10 COMMISSIONER AHEARNE:. But under the.NNPA, wouldn't there be a greater requirement to.show a need for that hear-ing than there would under other circumstances?
MR. BICKWIT:
That Is. true.
That.~ s the finding that" you' _re maki.ng.
COMMISSIONER AHEARL~E:
So I guess at *least to a l~y 7
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There is a distinction.
CHAIRMAN HENDRIE:
Peter, can I ask what*your inclination is on the basic-matter of a proceed_ing on these ---
or proceedings on these applications?
- MR.* BICKWIT:
- Let me add just one thing before.you 13 make your decision.
14 15 16 17 18 19 Our view--
I think you should add that all of our views, all of the options*.we pose here we believe to be legal_ -
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COMMISSIONER AHEARNE:
I would assume so.
MR. BICKWIT:
~- tho~gh we favor --
COMM!SSIONER AHEARNE:
I would either assume that 20 you do think so or that you wouldn't be so unwise as to tell 21 us that they were.
22 MR. BICKWIT: - We do believe it would be legal to 23 deny the request although we don't counsel that~
24 COM..lUSSTONER BRADFORD: - I **m inclined in. the -direction Ace-Federal Reporters, Inc.
25 recommended by
- the General Counsel. -
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25 11 CHAIRMAN HENDRIE:
Vic?
COMMISSIONER GILINSKY:. Can we have that briefly detailed?
MR,*BICKWIT:
That you would grant the petition, that you would divide the proceeding into two phases.
In the first phase you would attempt, with the assistance of p\\lblic*
participation, to make a decision on just what your juris-diction is.
It would be considering only jurisdictional and procedural questions.
After you decided at the end of that.first stage what it was you wanted to consider from a substantive stand~
point in the course of this proceeding, \\ you would then. go out for comment on those matters~
Our recommendation was that this proceeding should be written in the first phase, written in the second phase at least initially but that ultimately you might want to con-sider the option of taking oral argument on the factual; sub-stantive matters in the second phase.
COMMISSIONER GILINSKY:
But there may in fact really not be a.. second phase?
MR. BICKWIT:
That t-s. true,.
COMMISSIONER GILINSKY:
Now would you limit the first phase to the question of* the Commission t*s. jurisdiction*
on health and safety matters?
MR. BICKWIT:
That is really the only*matter that
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Let me qualify-that.
It may be that health and safe=ty determinations* are relevant to common defense and security jurisdic'tion, and we would confine :the first*phase to a* discussion-of that question, plus yo.ur direct heal th and safety jurisdiction.
COMMISSIONER GILINSKY':
And how long would this 7 *
- phase take?
How much time would you allow for-,-
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25 MR. BICKWIT: *We.have in mind a 30-day written sub-mission.
COMMISSIONER GILINSKY:
Which will start when?
MR.* BICKWIT:
As soon as the order would go out, which I guess would be in about a week.
MR. STOIBER:
- Here on page 13 of our memo we offer the opinion that it would take us until approximately October 22nd to issue that order.* If we get it* faster of course you.*
coul~ start that much sooner.
COMMISSIONER GILINSKY:
And then you would have reply briefs?
MR. BICKWIT:
That was left open.
We didn 1*t see the need necessarily. for reply briefs-on-the procedural stage.
COMMISSIONER' GILINSKY: ' So' you go through, a' J0~day' perio*d du;i::ing which the.public would have *an opportunity to*
supply*-.:. to* comment on this question, and then have the Commission decide its jurisdiction MR. BICKWIT:
Right.
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25 13 COMMISSIONER GILINS~Y:
-- and then decide on any subsequent phase, if any?
MR. BICKWIT:
Right.
COMMISSIONER GILINSKY:
Do we really need 30 days?
MR~ STOIBER: *As we have.it here we said.issue the notice of hearing on October 22nd.
Then I believe we gave 21 days, until November 12th,* for.a response.
And then we esti~
mated that it would probably take a month for the Commission to decide the original question and to frame any additional order it wanted to issue and therefore, the substantive phase would begin sort of mid-December.
COMMISSIONER GILINSKY:
But there is no reason why the Commi.ssion could not, in the meantime, be dealing.with the common sorts of NNPA issues that we take up in the usual course of business?
MR. STOIBER:
That's right.
In fact as I read the NNPA you have an obligation to be concurrently looking at those things:
CHAIRMAN. HENDRIE:.
Am I correct--
I don't recall from the correspondence from the parties*, I *don t*t recall a challenge*to the *application or applications.on the basis that they don't meet.the requirements of the Non-proliferation Act.
MR, STOIBER:*
That is certainly not the thrust of the issue.
. I CHAIRMAN HENDRIE:
So. far as I know, I hadn *:t noticed1
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25 14 that being.raised.
Nevertheless.of course the Commission has to decide those matters.*
COMMISSIONER GILINSKY:
We're obviously going to scrutinize those questions.
MR. BICKWIT:
I think it is the Staff's view that some of those-":"' that they are not prepared.to recommend-that some of those findings be made now without further information.
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25 COMMISSIONER *GILINSKY :.
In. effect, we would be going back and taking another _look at questions th~t were decided in one of the Tarapur decisions.
15 MR. STOIBER:
We've certainly been loo.king at them in a different factual context of this matter.
COMMISSIONER AHEARNE:
But*not in the way you're proposing, because; the way.you're proposing, you wouldn't have this matter in front of you.when you are first addressin~
the jurisdidtional issua.
COMMISSIONER GILINSKY:
Except you could --
COMMISSIONER AHEARNE:
It would be.latent.
MR. BICKWIT:
- . I:.*.wouldn't think that the Commission wo:u.ld foreclose submi.ssion. regarding this matter which were relevant to the jurisdictional determination.
COMMISSIONER BRADFORD:
Let me make that point another way:
the primary drawback, I think, of your preferred option is that it does raise, in th.e particular context of the Philipping export, the question about the Commission having health and safety matters generally.
A number of other parties might have views.
On the one hand., I think inevitably the decision th t*
would be made in that conte"l~t would theoretically be limited to the Philipping context.
Other parties could raise it in the context of exports to other countries, if they felt.there was a significanr I
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25 16 difference.
On the other hand,* it does appear to ~rnll out comments from any other potential exporter or any ob.her potenti 1 intervenor. unless we structure*
the proceeding in a way
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that invites them.
MR. BICKWIT:
I had not envisioned that you would wall them out.
If others wanted1.to,o.ome
- in in this matter they would be allowed in..
COMMISSIONER GILINSKY:
- As I understood you, we would be asking a more general question, what are our responsi-bilities, and indicating a willingness to take another look at the question.
COMMISSIONER BRADFORD:
Then you would see the decision that came out of it as essentially being the Cornrnissio position on health and safety matters in export licenses?*
decision is.
MR. BICKWIT:
To the extent that any adjudicatory It*could always be changed in subsequent cases.
COMMISSIONER AHEARNE:
I'm just curious as to why you feel, since in many ways the recent issue that'~ coming up is because of.the Philippine issue, why you think it is sounder to quickly address -- and that's what I view this procedure -- quickly address this much broader geneiic issue and then focus on the specifics that have caused it as opposed to trying to at least answer a part of the application in the specific case.
MR. BICKWIT:
First of all, I ought to say that I
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25 don't feel very strongly that option two is preferable to option three.
I do think it is, but I don't think you'd.be
~aking a serious mistake ---
17 COMMISSIONER GILINSKY:
When you're talking about two and three, are yo.u.talking about A; Band C?
MR. BICKWIT:
No, on page -nine.
COMMISSIONER GILINSKY:
Well it seems to me to call for comments on the substantive issues is implicitly to agree that the Commission has jurisdiction in this area.
MR. BICKWIT:
Not necessarily.
That really is the answer to your question~
COMMISSIONER AHEARNE:
I think it.says we have a question as to what extent we wo.uld have --
MR. BICKWIT:
The basic reason your question is why are we favoring option two over option three; the basic reason is to go with option three is to ask for submissions involving large amounts of material, which we may ultimately find to be irrelevant.
COMMISSIONER AHEARNE:
Except that when you go for option two, since there -- as has just been pointed out, you are making a broad conclusion,.it doesn't say that for some unique facets that might exist in this case. it is appropriate to consider.
Instead, what it says is that we either will reach a conclusion --
I think -- that in general we sha"lll consi-der these i$sues or in general we won't.
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18 MR. BICKWIT: _ I have in mind that you.can reach a conslusion.that in general we w6n't but in this case we want to modify that general proposition so we will.
COMMISSIONER AHEARNE:
But you won't have had the substantive issues raised.
MR. BICKWIT:
You will ask for submission that are relevant to your decision on the jurisdictional question generally and on the jurisdictional question here.
COMMISSIONER AHEARNE :.
Once you say irrelevant on the jurisdictional question here, _doesn't that begin to
. get to be option three?
MR. BICKWIT:
I think it will get to some substance I think some substantive submissions will come in in your first phase, if the point being made by the proponent of expansive jurisdiction is in this particular case you've got a peculiar situation that requires you to address it.
COMMISSION AHEARNE :.
It seems to me that by going to option two, you are trying to address in the absence of a concrete case a* much broader issue which then I don't thi.nk you have allocated adequate time to address.
.On the other hand, if you went to your option three, you are now trying.to address a specific case, and*I think you do have adequate time.
MR.* STOIBER:
Well, this-.,.to some extent, was modeled on the proceeding in the Tarapur matter, which was also a two-phase proceeding, in which the Commission had to
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25 initially confront the ju~isdictional -.:and proce*dural issues and it was reasonably successful in the ex:tent to which the 19 first proceeding did. result in the submission of some substanti e materialain order to support the*arguments for the scope of jurisdiction being made by the* parti*es:.
I don't think you can separate them neatly into procedural and substantive issues, but it just seemed to be a little more,orderly than throwing it. 9pen entirely to.any submission however broad.
MR.-BICKWIT:
Suppose you came to the condlusion in phas*e two that what you really wanted was the Staff* to do a comprehensive *analysis of the heal th and safety features in the Philippine's.
To.at.. this point s-ay we want that analysis sub-mitted because it might be relevant strikes us as potentially duplicative and exhausting.
COMMISSIONER.AHEARNE:
But,I would think that a more likely. :situation would be that in the absence of any of the specifics, the substantive issues focused on this case, that you are just going to.get a re-hash of the broad general
- questions that have been* raised before, and the conclusion will be the*same sort of shrugging of shoulders.or lack of-a specific.conclusion, and you really won't be any further.
MR. BICKWIT':.*
I just think you could alleviate that by. making clear that-substantive submissions are not, >o.ut
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20 of order in-phase two.
COMMISSIONER AHEARNE:
Why no_t make it sufficiently clear and focus it in option two?
MR. BICKWIT:
For. the reasons I've given.
COMMISSIONER GILI*NSKY:
I must say, I _dort*~:t see w~y you need -submissions.in :,the specific. case *. You *deaL:with certain possibilities, and you decide that under certain circumstances we have jursidiction and under other circumstance you won't.
If the circumstances. of the case fit one of those categories, then decide the case~
I don't know why*you have to get involved in the deta1ls* of this case.
MR. BICKWIT:
I think Commissioner Ahearne's point would be that sometimes the specifics of the case can help you in -the formulation of the general proposition, and I would agree w.ith that.
- COMMISSIONER :GILINSKY:
Well, I would be prepared to go forward with a hearing,* a written hearing, I guess, on*
the subject of our jurisdiction.
I participated and subscribed in the earlier opinions.
A lot of things have happened since then, the membership of the Commission has changed, I think the Commission owes it to those who are interested in its decisions or are affected by it to speak clearly on this matter And so I think it would be useful to hear. from the interested persons in the public and. then to decide the question, -;-; four -
jurisdiction.
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25 21 And as for later phases, I would leave that to be decided.after we have decided the jursidction question.
MR. BICKWIT:.
You wouldn't have any problems in the order announcing what we've called the first phase that the Commission may follow up on the.first phase?
COMMISSIONER GILINS:KY.: *Sure.
CHAIRMAN.HENDRIE:
Okay.. We wil'l then have-a proceeding on a license, or license for export to the Philip~
pines, the consolidation matter to be determined forthwith.
We are agreed that it ought to be a written proceeding.
I guess it's less clear to me --
I tend. to feel as Commissioner Ahearne does that we perhaps ought to simply ask for written comments. on both the j:urisdictional and sub-stantive matters, and sort those outj.rather-than going into steps.
But my feeling certainly isn't strong enough that I
.will fall on my sword.if we do it the other way.
COMMISSIONER AHEARNE:
We have a fifth Commissioner here now.
CHAIRMAN HENDRIE:
Commissioner Kennedy arrives in the nick of time to save us from indecision here.
Let me see if I can sketch where we are.
COMMISSIONER KENNEDY:
Are you asserting that I'm a swing. vote?
(Laughter.)
COMMISSIONER KENNEDY:
It's an accolade which I
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25 22 haven't sought.
CHAIRMAN HENDRIE:
Well you do good work so these.
.things come.
COMMISSIONER KENNEDY:..I'm sorry I was late.
CHAIRMAN HENDRIE:
we understand.
The first.thing we did this mornriJ:Iilg was to decide, in determining whether or not we sho.uld have one : or. more proceedings on the Philippine export applications, that there really was no need to hear oral presentations by the parties.
COMMISSIONER KENNEDY:
Right.
CHAIRMAN'HENDRIE:
Then we turned to the matter of the applications, there* are three in harid:
the reactor,. the components, and more recently, a fuel application.
We.have Executive Branch views on the first two but not on the third.
And we'll have to decide on what degree of consolidation, if we have a.proceeding, what to consolidate.
We'll do that in a few moments.
On the subject of having a proceeding on one or another of the applications, the feeling has been that we should have a proceeding, that it should at least through the.
immediate*phases-be written.
And we are, at the*moment, miilldly divided to two on the question.in having this written proceeding:. should. we have a phase one to deal with the jurisdictional que~tion, ~nd then a phase two,having decided the jurisdictional question, the substantive matters within the
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25 23 jurisdiction previously dete_rmined,: i.e., *this alternative labeled number two.the the General Counsel's memorandum, we would ask for comments on the jurisdictional question and decide that, and then issue a second -order* say.i,ng Good.,. now, here's what we have determined to.be the ap,propriate juris-diction and scope of considera"b.ion-and we woul*d l.ike the commen s on the followiz:i,g substantive matters.
So it would be a two step process.
The other view is that in order to get straight in this particular case on what you *want to do about juris~
- diction, you are inev~tably going to have to see some *of *the particu_lars of -the matter and so. some people are going to have to write in their -jurisdictional arguments some of the. facts ii;i. the case as they see them.
And so the other view is well, why _not just ask for comments on both the. jurisdici:tional question. and on substantive matters at one -time, allow a little more time. for preparation of those comments and the Commission presumably a little-more time to sort. it out and then decide -- sort out the jurisdictionail.J. 1.matter and decide them, and then take up the substantive ones without a need for a subsequent round of comments.
COMMISSIONER KENNEDY:
Which is what,option three?
CHAIRMAN HENDRIE:
In *effect, option three of the
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25 24 General Counsel's memorandum *.. There are obviously.pros and con that one can see ~n both of these directions~
I think if we could have your views on the matter of whether we should have a proceeding on the*Philipping export applications, what_ general form it should take,. and,.in parti-cular, your.views on this latter question on which we are split That would allow us to move forward.
COMMISSIONER KENNEDY: As* :a pipaatical matter -- and I recognize only from an academic point*of view-at this point, if I understand what has been said --
I really don't feel a pressing need. overwhelming me to move toward any s0rt,of i.H'J proceeding on the matter at all.
But as I say, I r.ealize that' I
an academic view, if I understand that the Commission has alrea y agreed to go ahead.
Having anticipated that that would be the general tenor of the Commission's views, I have thought long and hard about theother matter and come rather quickly, I think, now to the conclusion that I would vote for a two-step process.
I would look at the jurisdictional question -- let me say as a practical matter I think we should recognize that it may turn out to be a one-step proces~, depending on the answer to the jurisdictional question.
So that's the process to which I would move~
CHAIRMAN HEND.RIE:
O~ay..
I COMMISSIONER KENNEDY:
Option two, I take it, I
is the
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25 25 desc~iption.
CHAIRMAN HENDRIE:
Okay, option two carries the day.
Counsel's Office will please continue, I hope, its preparation of a draft order to reflect these discussions
_incorporated on option two, and we will see it.soonest and hopefully not have to debate,Jwords among ourselves too much and put it on out.
Now, I see a question coming up.
I want to turn now to consolidation, but do you want to add something?
MR. BICKWIT:
Only to tell you that we'll operate on the schedule outlined on page 13,.unless the Commission has problem with it.
COMMISSIONER KENNEDY:
Is this the tightest schedule that's feasible?
MR. BICKWIT:
We can always tighten it.
COMMISSIONER AHEARNE:
Realistically, it's going to be a lot longer than that.
CHAIRMAN HENDRIE:
It looked to me l.ike it was about as tight as*was-feasible, I must say.
It's.now *the 10th, Federal Register publication on October 22 is already touch and go because you.have to-back off about five working days after you get it.over there for th~m.to get it into print.. That's seven calendar-days,. you're-b~ck to October 15.
It will sur-prise and delight me if the.Commission has authorized the-order by the 15th.
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25 26 CO~USSIONER KENNEDY:
I don't see why it,,couldn' t authorize it by the* 11th *.
- Today's t11,e l*0th, :t mean, how long -~
presumably counsel, in anticipation of possible outcomes, must.
have already drafted some rough orders.
MR. BICKWIT:
We never want to anticipate what the body would do.
COMMISSIONER KENNEDY:
I would have thought you had at least three, one for e-ach of the options ¥.ou put forward.
as completed Staff work.
MR. BICKWIT:
We could have done.that, yes.
COMMISSIONER KENNEDY:
So.I would think a very rough policy this afternoon, followed by an intensive effort on the part of the Commission* to move promptly to meet its full responsibilities and all the things I keep hearing about,.
particulaily with its deep involvement and increased involvementj in the licensing process, would wish to indicate its capabiliti Is in thi.s regard.
And I would commit myself to being prepared to sign off on an order before tomorrow afternoon.
CHAIRMAN HENDRIE:. Hear., hear.
COMMISSIONER BRADFORD:
I would certainly be pre-pared to sign off on an,1.order that I agreed with by tomorrow afternoon.
(Laughter.)
COMMISSIONER.KENNEDY:
Now I understand the reason for the schedule.
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25 27 COMMISSIONER BRADFORD:
I'm perfectly prepared to make the effort, but it does.contemplate the order coming up in a form that gives no one any difficulty
- CHAIRMAN HENDRIE:* That seems to be straightforward.
j Wo.uld you*please write it that way, Counsel?
COMMISSIONER AHEARNE:
And you do believe 21 days is adequate time for responses?
CHAIRMAN. HENDRIE:
- I was going to say 21 days for participants' views, parties' views is not what I wo.uJJd call overly generous.
COMMISSIONER AHEARNE:
COMMISSIONER KENNEDY:
dictional questioris.
For this sweeping a question
[We're talking about juris-1
- MR. BICKWIT:
People have been thinking about these questions, I don't see any problem.
COMMISSIONER BRADFORD:
Well have people, other than the possible participants to this proceeding,_ been:,_
thinking about them?
MR.
- BICKWIT:
- I suspect they have.
COMMISSIONER BRADFORD:*
Why do you think that?
MR. BICKWIT:
- People have. an interest in this area and they *thj,:nk in these terms.
Those ar~ the people we w~ul.d
- expect would come in.
CHAIRMAN-HENDRIE:
At any rate, the base question,
.I must say, my*own impression of-the schedule, ten,tative
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25 28 under option two.is, if hustled along;. about. as good as we are likely to achieve.
Now let me move to consolidation.
I guess my inclination would tend to consolidate all of these licenses into one proceeding with the step that has been pointed out which was necessary, which is to. waive the requirement that the Executive Branch views be on hand.
I guess the reason that I would be inclined to do that and to recommend*.it.*: for consideration would be to. try
\\.
to avoid the need to deal at a later time with a new round of petitions to intervene and requests for hearing,on the fuel license
- L_assume that we' 11 deal with the components and the*
reactor, that we would at least consolidate those two.
We've had that before us for quite a while,and they relate to the same sorts of things.
But other views,.a couple of other views turned up.
I believe, John, you said you would not consolidate the fuel COMMISSIONER AHEARNE:
I would just go on the reactor and the components.
CHAIRMAN HENDRIE:
Who.else did I hear that from?
Peter, was that you?
COMMISSIONER BRADFORD:
I do feel that.way.
Is there no legal problem within the framework of our regulations
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25 29 with.. going_. ahead with a hearing on a:.1.matter on which we have yet to receive-*_Executive Branch views?
MR. STOIBER:
CDur regulations say that we would not order a h.earing in the *absence of Executive Branch views.
So you would.have to _make an exception to the rules,a waiver of your rules.
MR.* BTCKWIT:
There is a specific waiver provision.
You take a vote of the Commission.
CHAIRMAN HENDRIE:
Are there other views? Vic?*.
- COMMISSIONER *KENNEDY:
I am attracted to trying to dispose *of the matter rather than*. have to repeat it all.
By the. same token, I'm not convinced that having disposed of the matter in respect to the reactor and components it would necessarily entail a sub~equent rev~sitation to the whoie question.
I would think,that enough precedent would have been established in whatever decision had been reached to allow us to come to grips very quickly with the *fuel matter separately.
Thus I wo~ld not --
I would certainly consolidate the reactor and the components questions.*. I think I could go either w.ay on the fuel, I am not persuaded that we* :need to do it.
CHATfilm.N HENDRIE:
Vic?
COMMISSIONER GILINSKY:
.I go along with that limite consolidation
- CHAIRMAN HENDRIE:*
Okay.
We will then* consolidate
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25 C) 30 the component and reactor applications., and. not include the fuel applications in.this'proceeding.
Please draft the order accordingly.
- Good.
Now, what e:JJse *1ies *before the house to deal with?
MR *. BICKWIT:
Carl.-has asked me, does the. Commissio want to deny standing under 18"9 ( a*) *. in this. si tuation.,;-and granti it under.3'04(b), or the alternative-would.be simply not to.
reach the question of standing under 189(i$.)i,.
I think the.drafters of the NNPA had in mind that, providing in 304(b) for this flexible test, that the.Commission could avoid reaching that question.
And my recommendatiO:n would be that you do that.
COMMISSIONER AHEARNE:
Why do you have to reach the question?
MR. BICKWIT:
You don**t have to reach it.
COMMISSIONER AHEARNE:
Why.should we?
MR. BICKWIT:
It's a question of whether the Commission wants to reach it.
COMMISSIONER AHEARNE:
What's the argument for?
MR. BICKWIT:
Simply to --
CHAIRMAN HENDRIE:
Probably just.to enunciate the proposition that it's our belief *that you don't have _189(a) hearing rights in export matters.
I thought that was fairly clearly.laid down in the legislation.
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25 31 MR. BICKWIT:
That you would-reach that decision?
CHAIRMAN HENDRIE:
The legislation reached *it.
MR. STOIBER:
- There is some debate about that.
There is a view in the Stat:e. Department that that issue has bee laid to rest, others would argue with that, I-presume inter-venors.
CHAIRMAN HENDRIE:
The Commission's,regulations certainly COMMISSIONER KENNEDY:
I.had thought that there were some fairly unequivocal statements in the legislative history on the point.
MR. STOIBER:
Some reg~rd them as un~:quivocal, some regard them as equivocal.
I raise specifically the question of whether an applicant might be able to assert.an interest and therefore obtain a hearing under Section 189 (a).
CHAIRMAN HENDRIE:
Don't our Part ll0regulations -
MR. STOIBER:
Our regulations include the 189(a) provision.that if an interest can be shown, then a hearing will be ordered and leaves open the question of whether in any specific case that kind of an interest could be established.
CHAIRMAN HENDRIE:
I think it is then a question of whether you want to try to add this additional question to the matters to be settled in this ca~e.
COMMISSIONER AHEARNE: *Carl, could I ask you a question?
In reading the NNPA, it talks about the possible I
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25 procedures:
"The procedures to be established*pur-suant to Section B here shall 9onstitute exclustve basis for he~ring~ in nucl~ar export li~ense pro-
. ceedings before* the Commission,: *.
,*notwithstanding Section 189(a),* shall not require the person Commission to grant any *person on the record
~iring in such a proceeding."
Doesn't this say this is the only --
MR. BICKWIT:
I'm sure that is not.
COMMISSIONER AHEARNE:
"The procee.ding
- shall constitute the exclusive basis for hearings in.-,.
nuclear export license proceedings before.the Commission."
32 MR. BICKWIT:
I think<the. intention was.to rule out the on the record. requirement in 189 (a).
COMMISSIONER' AHEARNE:
The language seems to be extremely explicit.
MR. STOIBER:
The debate is over the meaning of the word "bas.is. 11 If basis me*ans procedures, then -- the argument that this does not *resolve tlile issue.,* as I understand it, would say if yo~ have a right~ the basis or the procedures which are used in the proceeding._are still only those that the Commission decides to give you, leg is la ti ve, written, adj*udica.;.._
tory,.oral.
But that you still cou,ld make a standing arg.ument
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25 33 However, if basis means the jurisdictional basis, then it does resolve the issue and there is no right.
COMMISSIONER AHEARNE:, To me it seems to resolve the issue.
CHAIRMAN HENDRIE:
I.rather thought so, too.
But **
MR. BICKWIT:
I would' be very surprised if Con~ress would want to take away the right to a hearing under Section -
189(a), and without explicit legislative history to support that reading, I'd-be very disinclined to read it that way.
I accept that the wording that you point to is certainly admissible of that reading, it is more i*.1.ii.kely than not that yo_u come out that.way.
COMMISSIONER AHEARNE:
It seems to me it's very clear.
MR. BICKWIT:
It seems to me it is open to some interpretation with re~pect to.legislati~e history and it would be a rather major step~-
COMMISSIONER AHEARNE:
Isn't there some quote about when the legislative history is in doubt you look at the law?
COMMISSIONER BRADFORD:: I've argued that unsuccess-fully before.
MR. BICKWIT:
That would mean,. if* the Commission decided that* it was not in the public interest to-have ahearin, that hearing rights under 189(a) that had been established for dec.ades would be nullified.
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25 34 COMMISSIONER AHEARNE:
That's what the law seems to have done.
. MR. BICKWIT:
I don't believe that was the intent.
I'm admimting to :you that your reading of. those words is the more logical,*the easier reading.
I'm saying it is not the
.only reading.
I'm saying if you went to.the.legislative histor, which you:w.ould be entitled to*do, if it were not the only reading, you would not £ind the kind of legislative history that would lead me to that interpretation..
CHAIRMAN HENDRIE:
Well I know that was certainly on the minds of.at least some of the participants in drafting the legislation.
COMMISSIONER BRADFORD:
It sounds like a good*issue now to decide this morning.
(Laughter.)
CHAIRMAN HENDRIE:
The discussion;*while not leading to a conclusion on the issue, convinces me it's a dandy thing not to have in this proceeding on the Philippines export application.
COMMISSIONER AHEARNE:
You see now why I asked why did we reach that question.
MR. STOIBER:
One other relevant point, perhaps, is that there was a lawsuit on this very issue brought *by the Natural Resources Defense Council in the Tarapur-:proceeding.
And Judge Leventhal did, in fact, leave the issue open in his
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25 35 final opinion.
There is not any clear legal authority on the issue.
COMMISSIONER BRADFORD:
His final opinion was post:-:NNPA. ;_.
tJ CHAIRMAN HENDRIE::
Okay.
Any other items that we ought to discuss?
COMI'-1ISSIONER AHEARNE:
Isn't there another. --
Peter?
COMMISSIONER BRADFORD:
I was going to raise the question, maybe the same one you had in mind with regard to this request that we investigate *certain allegations.
CHAIRMAN HENDRIE: Okay,.let me turn to that a*fter I as,k, *the General Counsel if he is perfectly clear on what they're going to draft in an order and get to us practically immediately, at which point we will deal with it practically immediately and get it on to the Federal Register.
MR. BICKWIT:
It's clear.
CHAIRMAN HENDRIE:
Okay.
Peter, go ah.ea*d.
COMMISSIONER BRADFORD:
I think I agree with the thrust of the recommendation that we defer* a decision on that.
But it did occur to me that if similar. allegations were made about a reactor being built.in *this country --*in another country, I would certainly hope that that country's regulci,tory agency would, at the very least,' transmit them to. us.
- And I* wonder if we oughtn't at lec;ist ask the** Staff
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25 36 if there is any. reason why we shouldn't.forthwith at least transmit those allegations to the Phi1ippine regulatory agency.
CHAIRMAN HENDRIE:
Let's ask Mr. Shea if they see any reason why not.
There is a*hand.up here ctiffering an opinion.
MR. DORIAN:
I'm Tom Dorian, and I'm with the Office of Legal Director.* I would like to bring up the point that if, in fact, the allegations are.of a criminal nature, then under Sections 221 and 223 of the Atomic Energy Act and in light of past Commission practice, we have turned over similar allegations in the past to the Justice Department for investigation by the FBL and have not handled these kinds of investigations by the Commission.
CHAIRMAN HENDRIE:
What do you do about notifying
- the Philippine regulatory agency?
MR. DORIAN:
Well the que.stion that occurs is whether, first of all, these are criminal allegations.
And the second question in connection with the allegations on the particular party, that is,* EBASCO, whether* the elements of the allegation were committed in-the United States or whether they were *committed in the Philippines.
And it's i'poss.ible that the.iustice Departmen*t may conclude, assuming that they turn that over and that obviously is a question, that in fact it can investigate these allegations I
in the United *States.
One-would have to dig *a little bit further I.
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25 37 before coming to a conclusio:6. as to where. the crime, if any,
- was*cornmitted.
CHAIRMAN HENDRIE:
I still don't see what that has got to do with the question can.we communicate these allegations to the Philippine authorities for whatever use they may think appropriate to make of them in the Philippines.
I don't find anything in this discussion that bears on the question at all.
MR. SHEA:. I don't see any problem.
CHAIRMAN HENDRIE:
I agree with Peter.
If an American utility were exporting*a Philippine reactor -- importi g a Philippine reactor and in the Philippines they were having a big argument about whether they ought.to let us have it in view of our limited state of.development and g~neral incompeten in things, and there were.allegations that there was funny busi ness on the part of the engineers, why I think we'd be delighte to hear that.
So. I think we ought to make it known.
Any objection?
COMMISSIONER AHEARNE:.No.
COMMISSIONER KENNEDY:
No.
CHAIRMAN HENDRIE:
The Staff presumably could find the appropriate ways to do that.
COMMISSIONER BRADFORD:
I was just.going to say as far as I know the Staff has jtist been apt to think. about that for the first time five minutes ago that they ought to sort of take a little while this afternoon to think about why
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None occurs to me.
But let us know if anything occurs to you by 5: 00_.
MR. SHEA:
Right.
COMMISSIONER AHEARNE:
And certainly you ought to let the State Department know.
MR. SHEA:
Yes.
COMMISSIONER KENNEDY:
Indeed the question I guess arises, how do we communicate it.
And it would seem to me that it would be the State Department that communicates that,*. unless we've established an embassy in_ -- we may have.
Can you check that?
CHAIRMAN HENDRIE:
You apparently haven't read the morning_paper.
(Laughter.)
COMMISSIONER BRADFORD:.Is there a normal route for communication of things like this. under our nucle.ar safety agreement, or do we have a nuclear safety agreement 18 - with the Philippines?
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25 MR. SHEA:
We.do not have one concluded yet.
We are actively negotiating one.
I would think the best approach would be through the State Department.
- COMMISSIONER AHEARNE:
Even though we have*.
separated it into a two-step process, I would agree with the General Counsel's recommendation-to postpone our*own addressing of the issue.
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25 39 CHAIRMAN HENDRIE:
In terms of seeing whether we(
conclude we*have jurisdiction and*what jurisdictd:ion.
CDMMISSIONER AHEARNE:
Yes...
COMMISSIONER BRADFORD:
I guess I would °like to at least have the legal office look at the question of whether the referral to Justice is in order, because if in fact they conclude the allegations*raise questions of that sort, then we should be doing something other than simply postponing action for the first phase of the proceeding.
COMMISSIONER AHEARNE:
What office actually refers to Justice?
Is it yours, OEOD or MR. BICKWIT:
OIA.
COMMISSIONER AHEARNE :,
So that should be referred*
to OIA.
CHAIRMAN HENDRIE:
Oaky.
You'll get it on then to Cummings and his crowd.
MR. BICKWIT:
Yes.
CHAIRMAN HENDRIE.:
Are there other matters?
MR. BICKWIT:
One matter, Mr. Chairman.
We have referred to these recommendations as our recommendations.
- Throughout.these recommeno.ations *are ours and the Office of Policy Evaluation~
COMMISSIONER AHEARNE:
It was understood.
I figured you* would have protested furi*ously.
MR *. BICKWIT:
We worked together on this, and I
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25 40 we'll continue to work together on, the order.
CHAIRMAN HENDRIE~
Okay.* Thank you very much.
(Whereupon, at 10: 45 a.m., the meeting of the Commissioners was adjourned.)