ML22230A154

Tran-M780509: Discussion of Testimony on Proposed Licensing Legislation (Open to Public Attendance)

ML22230A154
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Issue date:	05/09/1978
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Tran-M780509
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f ~~0~i Transcript of Proceedings

\\~/ NUCLEAR REGULATORY COMMISSION

~.,

~o DISCUSSION OF TESTIMONY ON PROPOSED LICENSING LEGISLATION (Open to Public Attendance)

May 9, 1978 Pages 1 to 61 Prepared by:

C.H. Brown Office of the Secretary

DI SCLA Ii-~ER This is an unofficial transcript of a ~eeting of the United States Nuclear Regulatory Commission held on ___May 9, 1978 in the Commission's offices at 1717 H Street, N. W., Washington, D. C.. The*

meeting was open to public attendance and observation.

This transcriot has not been revie~*ied, corrected, or edited, and it may contain inacc~racies The transcript is intended solely for general informati ona 1 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 fina 1 determi nati ans or beliefs.

~o pleading or other paper may be filed viith tile Commission i.n any proceeding as the result of or addressed to any statem2_nt or arg~1ment contained herein, except as the Comr.iission may authorize.*

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DISCUSSION OF TESTIMONY ON PROPOSED LICENSING LEGISLATION (Open to Public Attendance) 1 Commissioners' Conference Room Room 1130 1717 H Street N.W.

Washington, D. C.

Tuesday, May 9, 1978 The Commission met, pursuant to notice, at 1:55 p.m.,

Joseph Hendrie, Chairman, presiding.

PRESENT:

Chairman Hendrie Commissioner Gilinsky Commissioner Kennedy Commissioner Bradford ALSO PRESENT:

J. Hoyle L. Go*ssick H. Shapar M. Malsch E. Case D. Muller w*. Reamer C. S-toiber A. Kenneke

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P R O C E E D I N G S CHAIRMAN HENDRIE:

Okay, if we could come to order, I will see if I can figure out what th.ts afternoon's subject is.

We are to continue discussion in the licensing bill.

Mr. Shapar was leading us through the bill and had arrived at some appropriate place.

I hope we can complete the jo~rney today.

This is an open meeting of the Comrilission because we are discussing. the draft bill.

Tomorrow, hopefully we will turn to discussing our collective testimony, such as it is, and what is the recommendation of the counsel on open or closed for that session.

MR. STCDIBER:

The Commission has the option of opening or closing.

I think the justification would have to be for frustration purpose justification and the Commission is able to determine that it can close on that basis.

We really have no recommendation.

CHAIRMAN HENDRIE:

Let's see, there was going to be -- we were hoping to get some proposition for some general guidelines on these openings and closings with regard to discussion testimony and discussing that sort of thing.

MR. STO~BER:

We have a paper in the works that should be up shortly, in a day or two.

CHAIRMAN -HENDRIE:

I think they are del?ying it to see

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what we do on this and then they~ill follow the p~ecedent.

What's you inclination for tomorrow.

We may as well decide now so that people will know.

MR. STOIBER:

I think what we will say in the paper is that in terms of going.through testimony in detail, there is a plausible argument to be made in announcing to the public what you are going to say before you announce it to the committees with the jurisdiction.

It may well frustrate the purpose behind the Commission's action.

MR. SHAPAR:

Well, the Commission, indeed in the past has closed such meetings when it was so minded.

COMMISSIONER GILINSKY:

You would then what, release the transcript after the testimony delivered?

MR. STOIBER:

Yes.

COMMISSIONER KENNEDY:

After the testimony had been delivered or after the completion of action on the bill or the conclusion of the.session of Congress, whichever comes first as we have so often said in the past?

MR. STOIBER:

Well, I think you have either option, depending on--~

COMMISSIONER KENNEDY:

We have never done -- we have never released it immediately after giving testimony, I don't think.

MR. STOIBER:

I think you would be able to determine after you have had *the debate or the discussion on the

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testimony whether or not to release immediately after issuarn;::e-*"woi.ild::frusfrate-~:l:Lhe purpose behind your discussions.

Therefore, you would probably make that judgment on an ad hoc basis after you had completed your discussion.

COMMISSIONER KENNEDY:

Up to now it is typically what we have said was we would release all of the stuff after the completion of action on a piece of legislation or the termination of that session of Congress.

COMMISSIONER GILINSKY:

Well, I was just making a point that if your only ground is that you don't want to release the discussion until the testimony has been delivered, then it is hard to argue with COMMISSIONER KENNEDY:

,I agree, you are right.

CHAIRMAN HENDRIE:

That's right~

The other consider-ation was whether in arguing out testimony you went over some ground which you would just as soon hold confidential to the Commission until the legislative action had either occurred or not occurred.

I guess the earlier run of hearings -- of Commission meetings on thi_s subject back in September were closed with a note attached to them "For Release After Action by the Congress on the Bill or the end of the 95th Congress, whichever came first."

COMMISSIONER BRADFORD:

Our motives there might have been a little different, because there we were commenting on

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We were concerned in.,part also with the testimony before Congress, but ---

CHAIRMAN HENDRIE:

We were also shaping our own recommendations and had in that part, where we were working up our own recommendations it had.more in the nature of an NRC initiative or legislative initiative in whi6h you might prefer to have a hold on to it for a while longer.

I don't much care.

What's your pleasure about tomorrow and maybe at the close of tomorrow's meeting we could decide when to release.

5 COMMISSIONER KENNEDY:

I have no preference.

It makes no difference to me.

I would hold it open or closed.

Whatever you wish.

COMMISSIONER GILINSKY:

Me too..

CHAIRMAN HENDRIE:

I have two votes for open or closed.

(Laughter)

COMMISSIONER BRADFORD:

I suppose that in the absence of any strong sentiment or reason why it ought to be closed, we ought to open it.

I basically feel the same way the other two do, but I guess that's my feeling.

I come down on the side of op~n.

CHAIRMAN HENDRIE:

It sounds to me like three votes for open or closed.*

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This particular piece of testimony and the discussion tomorrow are a little bit different than some other things that we do here.

It continues to seem to me, for instance, when we argue here preparing things like settling down to review the arguments of the Congress to convince them of the right and justice of our budget request that those are legitimately held arguments on the Commission side until there has been some action or whatever and so on.

Here, we are going to talk about some testimony which is of a fairly general nature, about legislation which is in the public domain and the discussions we had yesterday and today will be public.

It seems to me much less likely as a candidate for closure for tomorrow than other -- than we may find at other times where we.are discussing testimony.

COMMISSIONER KENNEDY:

I would certainly think it is not in the nature of a precedent, but then I would have to site the oft-stated premise that everything is within this Commission.

CHAIRMAN HENDRIE:

Well, I think it is simply too much to try to make a general rule that says when we are discussing testimony we close, whereas if we are discussing something as we are today, the bill itself, I don't think that makes the grade as a guidance rule for the Commission.

I think there will be some times when we are talking about

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It seems to me unlikely that tomorrow's discussion will be of that nature, so unlikely in fact that why don't we go ahead and have it open.

Let the transcript show, with due caution, that Mr. David Cohen of Common Cause, however, that it is on the grounds that I have mentioned that I suggested we open and I continue to think contrary to the views he has expressed to us in correspondence that there is a perfectly legitimate basis for closing on the frustation exemption.

I simply don't think that tomorrow's discussion is one that really meets that standard.

Okay, Howard, onward.

MR. SHAPAR:

The next section is on Page 21, Early CHAIRMAN HENDRIE:

The smart thing to do is skip 7

7 or 8 pages, you know.

I dontt know whether you did that, but I missed a bet if you didn't.

MR. SHAPAR:

That would be wrong.

The next section, 193 Early Site Approval.

COMMISSIONER KENNEDY:

Have*you decided not to discuss Hearings or did we take care of all the hearings?

Approvals.

MR. MALSCH:

I think we finished up Hearings.

COMMISSIONER KENNEDY: Oh, yes.

MR. MALSCH:

The next section is 193, Early Site

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Basically what this does is to authorize the Commissio to issue site permits for thermal neutron power generation facilities.

Basically what a site permit is,is a device to enable the Commission to make a final decision on site suitability without having before it a construction permit or combined permit and license application before it to ictually build a plant on a site.

COMMISSIONER GILINSKY:

Now, is that the difference from the present situation?

MR. MALSCH:

That's the essential difference.

In the present situation the decision by the Commission on site-*suitability is treated as a first step in the overall construction permit review and hearing process.

Here it would be a completely separate proceeding. 'The out-growth of that is states who have no intention of applying for permits or licenses could apply for site permits, whereas now that would be kind of awkward since they wouldn't be in a position of actually filing a construction permit application.

COMMISSIONER GILINSKY:

But they can go through a review then can't they?*

MR. MALSCH:

Then can go through a review and get a staff recommendation or staff report.

MR. SHAPAR:

But not a Commission sign-off after the necessary required hearing.

MR. MALSCH:

Right.

And that's the essential differen e.

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That's what the result is of having a different concept, a concept of having a part of the CP proceeding and the concept of having a separate proceeding.

This makes it clearly a separate proceeding.

In the Commission's earlier comments to 0MB no particular problem wassexpressed with regard to the geneial concept:~:of site permits.

The Commission did ask the concept be extended to production and utilization facilities other than DOE demonstration plants.

Here it is only confined to thermal neutron power generation facilities.

This suggestion has not been adopted in the DOE draft.

COMMISSIONER KENNEDY:

Excuse me.

The suggestion was what, I forgot?

MR. MALSCH:

The suggestion was made that the concept of2ea~ly site permits ought t6 be extended to all prodtiction utilization facilities except DOE demonstration plants~--

COMMISSIONER KENNEDY:

Oh, okay.

MR. MALSCH:

-- not just thermal neutron power generation facilities.

MR. SHAPAR:

There in vein it would seem to have a generic value.

COMMISSIONER KENNEDY:

Yes.

MR. MALSCH:

That's basically what 193a does.

193b, on Page 22 specifies the contents of application and includes a requirement that applications contain information

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 on the number, type or types and thermal power level of the facilities, the boundaries of the site, proposed.location of the facilities on the site, *maximum*levels of radiological and thermal,-,e~ff luents, type or types of cooling systems and then such'other information as the Commission may by rule or regulation require.

In the Commission's earlier comments to 0MB it had suggested deletion of the specific application c0ntent requirements in subsection lf,,:* for two reasons:

One, the Commission said it had not really throught the:matter through and wasn't in the position to recommend at that point in time, which matters were and were not of sufficien importance to actually put in the statute.

Secondly, the Commission pointed out that certain of the items, for example, the specification of maximum levels of thermal effluent and type or types of cooling systems dealt with~:.NEPA issues and appeared, because of conflict with the later sections of the statute calling for a NEPA delegation.

Presumably if the states are going to perform a NEPA review there will be no need for the Commission to have in its application such things as maximum levels of thermal effluent.

But the section is pretty much in the same form as it was when the Commission reviewed it last October.

MR. SHAPAR:

I might also add that under the present act there is very little specification of what is required in an

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MR. MALSCH:

That's right.

Under this there would be more information specified in the statute for a site permit than for an operating license or a construction permit.

COMMISSIONER GILINSKY:

What would be the practicality of such a review?

MR. SHAPAR:

Negligible, I would think.

MR. MALSCH:

Yes, except for the possible confusion caused by the specific listing of such things as thermal effluent and type or types of cooling systems.

COMMISSIONER KENNEDY:

Well, how serious a problem is that one?

MR. SHAPAR:

I don't think it is a very serious problem.

MR. MALSCH:

Subsection .c 11.*_si:mply calls for --

specifies what the decision standard is, on-site permits, and that is simply that if. after considering the information the Commission decides to decide it is suitable for a construction

• -:-,-:-,: or.operation on the facility prescribed in the application consistent with the public health and safety, and protection of the environment, it shall grant the site permit and the Commission is required to make specific findings in the matters listed in 193b.

In our comments we had suggested that some of the language here was unnecessary and had suggested that some of it

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I think that's primarily an editorial kind of thing.

I don't think anything here causes particular problems, but some of it wasn't absolutely required to be said.

Some of it was sort of obvious any way.

"d" however, deals with the duration 6f site permits and in general what it provides is that site permits shall be good for a period of 10 years and renewable for additional 10-.

year periods.

In fact, the language on Page 24 in paragraph large (BJ_ there is in fact NRC suggested l~nguage dealing with renewal of site permits.

What is says is that the Commission shall review site permits unless it finds that there is significant new information and as the result it is not likely that the site will comply with the Commission's regulations.

It is possible, although not entirely clear that what this language would do would be to preclude the Commission from denying renewal on the sole basis that there has been a change in regulations or Commission policy.

So there has to be -- there appears to be a need for new information before the Commission Qan decline to renew.

Earlier language that also set forth a special standard for revocation or suspension of site permit was suggested be deleted by NRC in its comments to 0MB, because of a possible conflict with another section of the Act dealing with revocation and suspension of licenses and permits.

And that

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So the problem disappears.

COMMISSIONER GILINSKY:.

Let's see, it does say that unless it is likely a site would not comply with the Commission' regulations.

MR. MALSCH:

Right, but it has to be significant or new information. and as the result of the significant or new information it must be that.the site will not comply with the

/ Act.

The language is not perfectly clear, but at least it is susceptible to the reading that you need, significant or new information to even trigger an examination of the matter of compliance with the Commission's regulations.

MR. SHAPAR:

I might add that section 185 of the Act says the "Commission shall" issue an operating license if the amended application comes in and if the plant has been built according to the CP, but the Commission has never had any difficulty in imposing the additional requirements with respect to the issuance of an OL.

MR. MALSCH:

Well, of course there is language in there that says in the absence of good cause, too, which is a pretty broad authorization to look beyond just a provisiona review conducted at the CP stage.

Paragraph 3 on Page 24 simply keys in to the contents of site permits in 193b.

The Commission had suggested in its comments to 0MB that this be deleted, but that was simply a

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If one is in, three doesn't do any harm.

"e" is a provision -- paragraph "e" is a provision which authorizes automatic or semiautomatic commencement of const~uction on a pre-approved site.

COMMISSIONER BRADFORD:

Marty, let me bring you back to 3 for a moment.

MR. MALSCH:

Yes.

COMMISSIONER BRADFORD:

The phrase there which is designed to produce levels of thermal power radiological effluent air, emfssj.cms:; no greater than the level specified in the permit.

What does the word '.'design" in that context mean.

Why shouldn't that just say "will"?

Who makes the judgment about what a.facility is designed to produce?

MR. MALSCH:

Well, I suppose that the first point in time when that issue would come up would be at the construction permit stage when all you had before you was design.

And you would be looking primarily to see whether the design fit restrictions on facilities of the site permit.

COMMISSIONER KENNEDY:

I would have thought that what it meant was since we are talking about a site permit and not a particular plant, indeed it is divorced from the plant, I would have thought what it was talking about was some hypothetical plant, that is a standard plant or a plant

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That's different.

CHAIRMAN HENDRIE:

Well, it has to be designed, Peter, not so much for the thermal power level which is fairly well established as a design level, but for things like radiological effluent and air emissions.

The reason is that in your site permit you want to know in order that the normal operating conditions will meet Appendix I and such things, that the plant will be designed to release no more than so much iodine and stuff, and that in turn we find it good and that meets the criteria and so on.

You can't say "will" because you can't assure absolutely that there won't be accidental releases that go above it.

What you are saying is we agree that this site is okay. fbr..a plant, *_bne of whose design features has to be measured to keep down efflents to the following level and 15 then that specifies it.

So that's why you need the terminology.

COMMISSIONER BRADFORD:

Well, that gets at half of my concern, but you could cover that, I think, by saying some-thing like the -normal operation of which will ---

MR. SHAPAR:

Or which is expected to.

COMMISSIONER BRADFORD:

Yes.

The proble~ that I was having with the word lldesign" is *if an applicant comes before you and says this facility is designed to operate at thes levels and the staff in its judgment, or the Board in its

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There is nothing in the ---

COMMISSIONER KENNEDY:

Well, that means that it isn't designed to do that.

one, but CHAIRMAN HENDRIE:

Then we win.

COMMISSIONER BRADFORD:

So I would like to think.

CHAIRMAN HENDRIE:

I can't think of our loosing 16 MR. CASE:

I think he is bringing up another point.

They say it is designed to it and that's sufficient.

COMMISSIONER KENNEDY:

No.

If the staff says it isn't, it isn't.

COMMISSIONER BRADFORD:

I wonder if this is susceptible to that reading.

CHAIRMAN HENDRIE:

I think it is clear that if the applicant says this plant is designed *to meet the site permit requirements and the staff says, no, it isn't it needs another set of flim flaps hung on it;*, This becomes then an argument and if you can't strong arm him into it, why you go into the hearing with h~m saying it meets it and the staff saying no.

And that's what I'm saying.

The staff tends to be,big winners on those.

COMMISSIONER BRADFORD:

But the standard the,,.Boa:td-then has to apply is this standard of whether or not it is designed to produce rather than whether or not the normal

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If you were applying the.'former, then you would have to come up with some reading of" design which meant something more than just what the designer expected.

You would have to read into it the word "reasonably" or something.

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I guess the intent is that it is nothing more than expected.

CHAIRMAN HENDRIE:

Where there is a design of specification that matters in safety analysis the applicant is expected to show that the design proposed or indeed produced the expected performance.

The staff either concurs or doesn't concur in that analysis or requires other things or whatever.

COMMISSIONER BRADFORD:

The difference between that situation and this one is that this language on its face, at least, doesn't key in to performance level. It simply keys in to the expectations that.~someone has about the design.

If it were clear that the relevant expectations were the staff's and the Board's expectations, I'd be comfortabl with it.

I'm just not sure this language do~sn't blend itself to the reading that the relevant expectation is the designer's expectation.

MR. STOIBER:

That is something that is usually cured in legislative history.

CHAIRMAN HENDRIE:

I guess you could read it that

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COMMISSIONER BRADFORD: Yes, and I can see why you would do it in a guide, because there you want -- a guide 18

. CHAIRMAN HENDRIE:

You don't use it because you want flexibility.

MR. MALSCH:

I think when we say something shall be designed such that, if it looks like to us that it will not in fact do that we would conclude it has in fact not been designed that way.

MR. SHAPAR: It is an objective standard in which each party can take its own position.

COMMISSIONER KENNEDY: In that view, as the Chairman says, if the staff says your review notwithstanding the fact, is in our judgment,it is not designed to do that.

The meaning of that is it won't do it.

I think.

CHAIRMAN HENDRIE:

We never treat the other interpre-tation --

we have never done it that way before, and this sort of language is used other places and with the meaning that staff concurrence in the*design is going to be necessary and safety related in order to get staff approval.

COMMISSIONER BRADFORD:

Would I be safe in saying that the radiological effluent andt.he air emissions of power

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CHAIRMAN HENDRIE:

Yes.

COMMISSIONER KENNEDY:

If they are,they are reportable occurrances.

CHAIRMAN HENDRIE:

If when you say design levels you mean those designs which are agreed upon for licensing purposes presented to the applicant and argued over>with.: 1.f.lie staffaand would withstand that test and then go forward as 19 part of the license design.

As a practical matter I think they are, ~~ren't th~y Ed?

COMMISSIONER BRADFORD:

And are they phrased like air pollution standards and other types of industrial plants, that is, is there some sort of average emission that is allowable with a variance for 15 minutes out of a 24-hour period?

CHAIR.J."1AN HENDRIE:

Yes, typically annual average, quarterly average and et cetera.

MR. CASE:

In other words, the design objectives have a connotation of the performance objectives as distinguishe from what a particular party thinks or asserts how it is going to come out.

If the word were expected, well, I guess you would say well, that's fine; rather than design.

Really, you could have the same argument over expected; by whom?

COMMISSIONER BRADFORD:

Yes.

If desigri has become something of a term 0£ art and

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CHAIRMAN HENDRIE:

I think that is the case.

Why don't you speedy on.

MR. MALSCH:

Okay.

Subsection "e" authorizes an applicant for a construction permit or a combined permit and license for a thermal neutron power generation facility,which is to be located on a site,which has been approved and a site permit upon a certain notice to the Commission and to the state in which the plant is located,and upon publication in certain newspapers commence construction at his own risk, unless he 20 is otherwise

• ordered to stop or not commence construction by the,;Commission or a state.

In earlier comments to 0MB the Commission hadn't expressed any objection to this.

It is a little different from the version the Commission saw before.

The language regarding 30 day prior notice to the state and the Commission has been added since the Commission saw it last.

The Commission had two significant comments to OBM on this version as it was last October.

One, as I indicated yesterday there was a request that there should be as a requirement prior to commencement of construction a specific need for the plant certification, just as there is in the case

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We had also expressed concern about the language about the activities being conducted to the risk.of the applicant.

Here the concern was rathertthe Seabrook decision on the sum cost was being modified.

The same issue which occurs earlier in connection with the so-called LWA rule in LWA provision section 185b.

On Page COMMISSIONER BRADFORD:

We did request a need for power finding at this point in time?

MR. MALSCH:

That's right.

COMMISSIONER BRADFORD:

Do you remember what number among our test that would be?

MR. MALSCH:

Here it is, it is number 8 on Page 2 of our 0MB comments, bottom of the page.

We say the Commission has no objection to the requirement of a state certificate of need for the facility as a precondition to NRC's issuance of a construction permit for nuclear power reactors if all the states have authority to issue such certification.

Indeed -- and here's our comment:

"we have added similar language to later provisions of the bill authorizing site preparation and limited construction activities, 185b" which is the LWA section and 193e which is this section.

COMMISSIONER GILINSKY:

Is this section on Page 25

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MR. MALSCH:

Eleven is the LWA provision?

COMMISSIONER GILINSKY:

Yes.

MR. MALSCH:

In terms of scope of work authorized, it is intended to be identical, but there is no specific review called for before this work can commence.

22 COMMISSIONER GILINSKY:

Beyond the early site permit itself.

MR. MALSCH:

Beyond the early site permit itself and the notification to the Commission.

COMMISSIONER GILINSKY:

And the previous case ---

MR. MALSCH:

There has to be a complete NEPA review of the application before the Commission, before the Commission can authorize that kind of activity.

review.

COMMISSIONER GILINSKY:

Including the specific reactor.

MR. MALSCH:

That's right.

COMMISSIONER GILINSKY:

But here you have had a NEPA MR. MALSCH:

On the s.ite.

.COMMISSIONER GILINSKY:

On the early site.

MR. MALSCH:

That's right.

MR. CASE:

But you don't have a NEPA power finding need for the facility as part of that do.you?

MR. MALSCH:

You presumable have what's called for in subsection "f", ~ so-called generic -- finding of generic

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What, whatever it means, has been made.

COMMISSIONER GILINSKY:

But you don't have a finding MR. MALSCH:

At this specific facility as needed.

Presumably you have a finding that there is a need for 1, o*oo megawatts, not necessarily by this plant, but by some plant.

What you don't have is they find that this plant is the one that is needed.

COMMISSIONER GILINSKY:

You are talking about the earlier finding in connection with the site permit?

MR. MALSCH:

Site permit, as ~pposed to the constructi n permit finding.

COMMISSIONER GILINSKY:

But that's a general projection into the future 16ok+/-ng some years ahead.

MR. MALSCH:

That's right.

In fact, in earlier comments to OBM the Commission had expressed some concern about exactly what was meant by a so-called finding of generic fiutur~oneed2fbr electric power.

COMMISSIONER GILINSKY:

But the state is free to prevent the construction of a plant should they choose to do so?

its own.

MR. MALSCH:

MR. SHAPAR:

That's right, and so can the Commission.

The Commission can establish it on MR. MALSCH:

That's right, but the authorization is

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 24 expressly stated as unless otherwise ordered by the Commission or the state.

So the Commission has 30 days and the state has 30 days in which to stop.

COMMISSIONER GILINSKY:

On what grounds could the Commission ---

MR. SHAPAR:

On any reasonable grounds related to health and safety or environmental protection.

MR. MALSCH:

Yes, there is no specific grounds stated.

COMMISSIONER BRADFORD:

What about need for power?

MR. SHAPAR:

That would be unusual in terms of the way this thing is drafted as that's dealt with.

COMMISSIONER GILINSKY:

On health and safety grounds, to use them, you would have to say that this reactor just doesn't fit on this site.

MR. SHAPAR:

I guess, to cut through the trees and get the_forest, some grounds it.~ould indicate that the general rule isn't good enough for the situation.

There is something particular about this application would dictate not applying the general rule.

Certainly the thrust is they would be allowed to do it.

We h~ve the reserve right to stop it and I would think it would be rather unusual circumstances where we would want to stop it.

COMMISSIONER KENNEDY:

Can I ask:

what is meant by the statement "safety-related construction activities shall not proceed more than one year from the commencement of such

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 25 activity~-*?*.

MR. SHAPAR:

I think that parallels the LWA rule now and I think it relates to components of a plant that would actually bring health and safety considerations in to it and it would be reviewed by the staff.

As I indicated, that does parallel the present LWA paperwork.

MR. MALSCH:

Okay, I already mentioned "f" which is a reference here to a so-called finding ang.

• generic future-.

need for electric power.

The intent here is to -- apparently to provide for some kind of need for powers finding at the site permit stage without requiring what would appear to the DOE, I. guess, would be impossible;. namely, a specific find that a particular facility is needed on this site at a particula period of time.

COMMISSIONER BRADFORD:

Marty, come back.

I'm sorry to pull the process backwards, but in section "e" it says they can go ahead unless ordered by the state.

Where in the bill does the Congress specify what form or order the state should take?

MR. MALSCH: It isn't specified.

COMMISSIONER BRADFORD:

Any conceivable state official might have authority to issue such an order, could write a letter to the company saying stop?

MR. MALSCH:

I think so.

COMMISSIONER BRADFORD:

Now, that's an intriguing

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MR. MALSCH:

Well, I presume he would have to be authorized under state law to issue such an order, and in 26 fact the last sentence of the section says nothing in the subsection affects the authority of a state or local government over preparation of the site and construction activities.

MR. SHAPAR:

You must remember what the consequence would be, he would be held up for a few months until he got his site permit or construction permit rather.

He wouldn't get a head start automatically, it would be the consequence of the state order of that kind.

COMMISSIONER BRADFORD:

It could come, at least probably from the public utilities commission, the siting board or probably the environmental board.

I would mention the governor's office.

MR. SHAPAR:

I would mention the governor first.

COMMISSIONER BRADFORD:

Well, he may have the least clear authority of any one under the statutory mandates, but it is hard to see what would stop him from issuing the.order as a practical matter.

In most states it would be at least four agencies, well, five.

The attorney general in a lot of states certainly wouldn't want to be left out.

MR. SHAPAR:

I suppose in some states the states would have that authority now on nonradiological, health and safety grounds. Zoning or other authority the state might have.

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 COMMISSIONER GILINSKY:

Would the state have to act within a 30-day period?

MR. SHAPAR:

I think so.

Let me check the language.

MR. MALSCH:

I don't think the language is clear on that.

I think the language specifical:]'.y calls for a 30-day advance notice, but doesn't necessatily require the notice be within 30 days.

MR. REAMER:

The last sentence in the subsection is it might give the state the authority MR. MALSCH:

Even after 30 days, yes.

I think that brings us to a new section, 194 Standardized Facility Destgns.

Just to summarize briefly, what this section does is to give the Commission specific authority to approve the preliminary or filed designs of thermal neutron power generation facilities or major subsystems of thermal neutron power generation facilities.

And it can do so in one of two ways, either by issuance of a rule or by issuance of a manufacturing license.

The approvals would be good £or five years, renewable for additional -three-year periods.

In its comments to 0MB, again the Commission had inqicated there was no basic problem with the concept.

In fact, some of the language in the section was added by DOE at NRC's request.

For example, the reference to both preliminary and final designs, and subsection A was added at NRC's request.

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9 10' 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 28 The language in paragraph "c" on Page 27 that no application,?fiiift~nqr issuance fee should be required for application for approval of standardized designs, but instead the cost would otherwise be defrayed by fees of applications under this section would be allocated among applicants for permits and licenses.

In other words, the user.

That was added at NRC's request.

Some of the language of renewal of approval of.

designs in paragraph "d" was also added at NRC's request.

MR. SHAPAR:

Well, I think this had to be tied to another section.

Of course, the Commission has authority now to issue manufacturing licenses.

It also has authority now to issue rules app~oving standardized designs.

What is significant about this in the context of other provisions is that an adjudicatory hearing is required *for the rule making in order to get full advantage of the provisions of the act.

• There is,~--, requirement now that any rule-making done by the NRC be done after adjudicatory treatment.

There was a question about that before and, of course, it was resolved by Vermont Yankee.

So this is a rather different direction, but it was in the earlier versions and the Commission focused on it before.

COMMISSIONER BRADFORD:

You could still have a standardized design that was approved through rule making, but if you did it that way you wouldn't be eligible for some parts

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MR. SHAPAR:

That use to be that way, but it is no longer true.

29 MR. MALSCH:

I think if we are to approve preliminary or file design of a whole thermal neutron power generation facility or major part, we would have to follow these provisions.

We couldn't do it some other way and have some different cons~quences attached.

MR. SHAPAR:

But the bill originally read the way you just suggested it.

MR. MALSCH:

Right.

There is a savings clause on the end which reserves our authority to approve the designs of minor systems or designs of other kinds of facilities or to promulgate standards or criteria without f6llowing procedural requirements cif this section 189.

So, for example, even with this section on the books the Commission could still promulgate like ECCF's criteria or part 20 criteria without going through the formalities of this, but it couldn't. approve a whole or major part of a design of a thermal neutron power generation facility without going throug the procedures here.

In fact, that savings language in h~re, which is.

in subsection f" on Page 28 was added at our request so as to leave our other *authority uneffected.

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 30

~HAIRMAN HENDRIE:

Is there a problem with the times in here versus manufacturing licenses currently, i.e., the particular proceeding we have got going forward with offshore?

MR. MALSCH: The appendix now ::d9n 1::t:::*s:pecify a duration, I don't believe, for the manufacturing licenses.

MR. CASE:

They have asked for more than five in the application we have before us.

MR. SHAPAR:

There was some discussion when that rule went out as to whether or not there ought to be a time period.

The conventional wisdom at that time was, it was better to leave it unspecified.

MR. MALSCH:

And the rules require that the app~+/-cant specify the latest date for completion of all units to be manufactured~ but there is no restriction on when.that date.

would be.

CHAIRMAN HENDRIE:

Does d2 affect that?

MR. MALSCH:

Well, this is a provision for renewal t:hat is very similar in _*_<5:on:Ei:ept-for the provision for renewal of.site permits, namely, you would renew unless there is significant new.information that suggest that the plant won't comply with the Commission's requirement.

CHAIRMAN HENDRIE:

In dl, this thing says that a rule or license issued under this section and the section starts out talking about manufacturing license proceedings asoone of the pieces of it.

This thing says,any rule or license issued under this section is valid for a CP for five years.

And I

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 believe the offshore application is too short of time. I think we hav:e'.J.had ::comment back, DOE has had and we have had comment that that language is too restrictive because their schedule would not put those things in process in time to ---

31 MR. CASE:

It wouldn't be economically attractive for a number of units they could manufacture within five years is what it would say.

MR. SHAPAR:

Because it could be renewed,under two.

MR. KENNEKE:

It says the application is filed.

The plant could be done later.

It doesn't exclude that possibility.

MR. MALSCH:

Well, but even still there might be a problem.

Would you have to take the current pending applicati n as an example, if you have application for construction permits filed for all 8 units within five years after a final decision on the current pending license.

That is just one way of expressing the five year period for design approvals, to key it into the date when the applications ---~utilizing the design to be filed.

CHAIRMAN HENDRIE:

It is a party to the nuts and bolts enterprise.

You had better look up their complaint and understand it against this language.

MR. CASE:

Marty, in light of the fact there is no revocation standard here or in the site permit, do you revert to some ---

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 32 MR. SHAPAR:

Yes.

Your general revocation provision of 186 of the Atomic Energy Act and that was one of the points of discussion in drafting this bill.

MR. MALSCH:

In fact, there is a conforming change made to 186a a*nd the conforming changes in the bill, Page 49 to add site permit in there, and also to add a reference to 193 in there.

Okay, as I indicated, the renewal provisions parallel almost exactly the renewal provisions on site permits.

This is the language at the bottom of 27 and top of page 28.

As in the case of site permits, earlier language that impose special requirements for revocation and suspension of design approvals has been deleted pursuant to an NRC request in the 0MB comments.

One problem the NRC had*-.was with paragraph "e" on Page 28 which appears to say that certain-designs that are presently referenced and pending construction permit act applications can quali£y as standardized designs under this section.

In our earlier comments we had suggested that the provisionr be deleted because we didn't think it would be particularly useful.

We also questioned whether in order to qualify under this paragraph those same designs referenced in CP pending applications had to be the subject of the notice requirements and mandatory hearing requirements that would otherwise apply in the case of standardized design.

MR. SHAPAR:

Also, we are not sure what the language

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 33 really means.

MR. MALSCH:

Right.

The language is unchanged from what it was last October.

MR. KENNEKE:

Marty we have asked the question and batted it around on the three-year period, why the Commission picked three years for a:renewal period *.

Bottom of the last line on 27.

MR. MALSCH:

I don't think we picked it.

I think that was in the bill that was before us and we didn't comment one way or another on it.

As I indicated, the last section or*.the.next-to-the-last section, subsection "f" was added at our request to pEeserve our present authority to promulgate standards and criteria by rule and to approve preliminary or final designs of systems of facilities other than thermal neutron power generation facilities and to approve the preliminary or final designs of minor subsystems.

So this means that design approvals and criteria are in two categories.

Design approvals for other than thermal neutron can be done by notice and comment rule-making or by manufacturing licenses, I suppose, and then for thermal neutron power generation facilities and major subsystems this section applies.

That brings us to Title II of the bill ---

COMMISSIONER GILINSKY:

Let me ask you.

What is the significance of "g" the final determinations of the Commission

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for facilities.

What constitutes final determinations?

MR. SHAPAR:

They may sue us.

MR. MALSCH:

That makes it clear it is subject to judiciary review just like a construction permit or an operating license.

Section 201 amends the provisions in the Act in.Section 182b dealing with ACRS reviews.

It does principally two things:

One, it changes the name of the advisory committee on the reactor safeguards: to. aqvisory.committee on.:reactor safety.

CHAIRMAN HENDRIE:

CoHld we refer to that as the Gilinsky amendment.

34 GJOMMISSIONER GILINSKY:

I'm trying hard to disassociat myself from it.

COMMISSIONER KENNEDY:

It will turn out to be the only thing enacted in the bill.

MR. MALSCH:

The other thing it does is to remove the requirement for, mandatory ACRS reviews except for standardized design approvals and construction permits and operating licenses for facilities other than thermal neutron power generation facilities.

MR. SHAPAR:

I might note that the recent 1GAO report recommended that ACRS review for all custom plants be mandatory.

That was one of their p~commendations.

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. MALSCH:

That brings us to the next section which is section 195, State Environmental Reviews.

35 Let me summarize first.

What this does generally is that it provides that all or part of NRC's NEPA environmental impact statement functions may be delegated to a state within an approved NEPA program.

It only applies to applications for thermal neutron power generation facilities.

And if a state does have an NRC approved program the Commission couldn't issue a license or permit without getting the NEPA input from the state.

The Commission is required to promulgate guidelines COMMISSIONER KENNEDY:

What constitutes an approved state program?

MR. MALSCH:

Well, there are provisions in the bill later *here which detail -- which require _the Commission to promulgate guidelines in evaluating th~~,programs and they include a number of requirements.

COMMISSIONER KENNEDY:

And the Commission is the judge as to whether the program is an approved one?

MR. MALSCH:

That's right.

The guidelines include a requirement that state comply with NEPA, hold hearings comparable to the kind of hearings which NRC hold:.-:which would be this new class of hybrid hearings.

Consent to jurisdiction bf the Federal Courts and do a number of other things.

Those are the principal features.

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 There is also a provision authorizing Commission technical assistance to states with approved programs and grants for the development or administration of the state programs.

MR. SHAPAR:

And use of national labs.

MR. MALSCH:

Well, that would be included in the category of technical assistance.

The use of national laboratories on the site to help the states perform the NEPA evaluations.

COMMISSIONER GILINSKY:

And how do you get this asssistance?

36 MR. MALSCH:

Presumably by request through the Commission or another Federal agency.

The grant program is administered by the Commission.

I think the request for technical assistance could come to DOE.

I think that applies to all Federal agencies.

Yes, subsection "h" on Page 40 says:

"states with approved programs may request and receive theaassistance of Federal agencies including national laborabor-ies."

So it is a broad authorization across-the-board to all Federal agencies and national laboratories as well.

COMMISSIONER GILINSKY:

What would *:_:w.e.z do, sort of retain the labs on some basis-,)and partial this out to the states.

MR. MALSCH:

Presumably~

COMMISSIONER KENNEDY: Or would the states go to the labs or through DOE and request their services directly.

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 37 MR. SHAPAR:

That remains to be worked out.

The bill itself_:_it not clear as to the mechanism that would be used.

COMMISSIONER KENNEDY: It would not be necessary that they come to us any.*'.mor:e than they would go -to the labs;.*

would it or would it?

I wouldn't think so.

MR. SHAPAR:

I think it would be a discretionary matter that you would want to focus on.

COMMISSIONER KENNEDY:

Yes.

MR. MALSCH:

The language says assistance of Federal agencies including national laboratories.

So you could say ---

COMMISSIONER GILINSKY:

That means free assistance.

MR. MALSCH:

I believe that's right.

But by saying agencies including national laboratories they are presumably treating national laboratories as sort of an arm of some Federal a,.gency_/or other as* opposed to some indeperident:'.eptity-:that.*would be subject to the bill.

COMMISSIONER GILINSKY:

But somebody is going to have this put in their.rE!quest.

MR. MALSCH:

That's right.

CHAIRMAN HENDRIE:

I think it will_have to end up having to be us to the extent that funds aren't available or as much as people might want.

There will have to be an apportionment.

MR. MALSCH:

Now, the Commission had a general observation about the programmatic NEPA turnover concept that

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 38 was in this bill and was in the October bill. It noted in its 0MB comments that this programmatic approval as opposed to the NRC proposed case-by~case use of state determinations was a little more complex in.' that the case-by-case use of state determinations in NRC's view then provided for better control, organization and was better understood and preserved the Federal Government as the overall NEPA coordinator and the overall NEPA overseer.

COMMISSIONER GILINSKY:

Which was more complex?

MR. MALSCH:

The provisions in this bill is more complex.

But it said that it understood that some states may prefer this version, that it did not have any strong objections to it, but pointed out that the promulgation of the guidelines for approval of state programs would be quite complex and it would take a major effort on the part of the Commission.

COMMISSIONER GILINSKY:

Does anybody have any notion as to how long that would take?

MR. MALSCH:

I don't think that has been thought through" in.detail.

I don't recall there is any time, limit specified in the bill.

MR. MULLER: The initial states~ - would be something on the order of a year.

But then to get a good system going it would take quite a bit of time.

COMMISSIONER GILINSKY:

What do you mean by the initial states?

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. MULLER:

Well, we thought if one or two states wanted to do this initially right at the beginning ---

COMMISSIONER GILINSKY:

Oh, you mean to get it started?

MR. MULLER:

To get it started it would probably take on the order of, as I recall, a year.

CHAIRMAN HENDRIE:

To approve the program?

MR. MULLER:

MR. SHAPAR:

guidelines or both?

For the first one, yes.

To approve the program and put out MR. MULLER:

To approve the program.

CHAIRMAN HENDRIE: This thing says put guidelines out how fast?

39 MR. MALSCH:

I don't think it specifies a time table.

MR. MULLER:

I would say about 15 months for the initial ones.

COMMISSIONER GILINSKY:

Does the bill indicate,anywher what';"';the.purpose of shifting these responsibilities out to the states is?

MR. SHAPAR:

Yes, I think in the findings by minimizin duplication.

COMMISSIONER BRADFORD:

Well, there is also something in there about having decisions appropriately made local decisions appropriately made at local levels.

MR. MALSCH:

It says they should be made by competent

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 40 state or regional authorities and should not be duplicated by the Federal Government.

That's Finding 4.

COMMISSIONER GILINSKY:

But it also talks about an efficient process and it is not clear that this is it.

MR. MALSCH:

Well,it is not clear that this is going to speed.things up, because for example, there are no time limits on the state input to the NRC.

Although there are other provisions in the bill apart from this that require, for example, state certificates of need.

So even apart from this provision if a state is bound and determined to hold the plant up it has already got, quite apart from section 195, Federal leverage to do that.

MR. SHAPAR:

The other answer is that if states do indeed take longer, that if they go into the early approach of early site approval that won't be critical at*~that time.

MR. REAMER:

Does subsection, "e" on Page 51 deal with the timing question about rules and regulations?

"Specifically shall be effective as to all applications filed with the Commission on or after that date."

Presumably we would have to have a mechanism for approval of a state program in,place by that time.

MR. MALSCH: Yes, I think you could argue that.

MR. REAMER:

Would you win?

MR. SHAPAR:

I don't know.

What do you say?

MR. MALSCH:

It is not so clear because you would

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 41 ordinarily expect that the intent of the time limit to h~ve.,it in the statute which talked about the Commission promulgating guidelines.

There are other provisions, for example, in section 202 that are not dependent upon Commission promulgation and NEPA guidelines.

COMMISSIONER GILINSKY:

I don't know whether you referred to this, but are you referring to Page 51?

MR. MALSCH: Yes.

That's the effective dates provisions and 202 is this provision.

As I said, there are some provisions in 202 which are not dependent upon the Commission promulgation of guidelines and don't need guidelines to have some meaning.

MR. MULLER:

But the bulk of 202 being the transfer to the states so that certain environmental authorities surely does require improved programs under 195.

MR. MALSCH:

That's correct.

COMMISSIONER BRADFORD:

Marty, are you familiar at all with the attorney general's opinion in California to the effect that their law is unconstitutional?

MR. MALSCH: I have not read it.

MR. SHAPAR:

I.have read it.

COMMISSIONER BRADFORD:

Would that opinion, in your opinion,.have to come out differently if this legislation were in force?

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SHAPAR:

I don't think so because that~_is addressed to the radiological health and safety preemptive authority of the NRC and this bill does not purport to turn that over to the states.

So having._- looked at it quickly, my answer would be no.

42 MR. REAMER:

Subsection B of 202 -- actually 195

.seems to say that the existing situation with regard to public health and safety between the NRC and the states has not changed by this action.

MR. SHAPAR:

That provision was deliberately crafted to be neutral on preemption.

That wouldn,!*t affect it one way or the other.

MR. MALSCH: Although it does do one thing that people have debated about for years, and that is it does authorize the Commission to take radiological impacts that have been assessed by the Commission and factor those in*,:t:o its overall balancing judgment as to where the plant should be jpermitted,:~or not.

There has been a lot of debate whether that is or is not a violation of the preemption that bridges the Atomic Energy Act.

This would clearly authorize the state to presumably take the radiological impact as evaluated by the Commission and argue it up that that would be the stEaw that broke the camel's back, and you know, was close to no, but not quite no without it, but with it,it is no.

MR. -~):_A.M~R :.. *:,But.. :.it:::r.equires them* to take our

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 43 evaluation of the radiological impact, right?

MR. MALSCHER:

That's right.

They are to take our evaluation without independent state evalution or without challenging it.

One interesting,'. th_ihg :_here,,. fp.e. bfll" rs_ not~ clear - as t whether our evaluation -- it will be in turn used by the state -

is subject to challenge in our hearings.

That's on Page 36.

MR. REAMER:

Is there any significance to seeing the "d" provisions to radiological safety but not mentioning radiological health?

MR. MALSCH:

I don't think there is any significance.

Okay, going back to the beginning again, "a" is the basic program.

Two is a provision which says the Commission can issue site permits or construction permits or combined permits and licenses without getting the state input.

One slight glitch in this is that on Bage 32 it is drafted so as to not require a finding of:need for power in connection with issuance of site permit~~

Yet the earlier provision on the,,:s+/-te<permi t section talked about something called a generic NEPA rieed>*:Eor:**power.

I think those two need to be reconciled.

CHAIRMAN HENDRIE:

You say you don't need that site permit?

MR. MALSCH:

See, it says that in a case of permits or a combined permits and licenses -- beginning on line

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 three, that the Commission can't issue the permit unless it is notified that it is environmentally acceptable or needed.

But when it references site permit it just references environmental acceptability.

44 See, the only place you see need is in big paragraph B, beginning on line 11.

There is no reference to "needri in paragraph A which deals with environmental acceptability.

So they have to make a finding as to environmental acceptability for site permits, construction permits and combined permits of licenses, but it only specifically requires to-_make a finding of need as to permits or combined permits and licenses.

Now, the major features of the program are: one, as specified in Paragraph 4 in the middle of 33 that the state evaluations have to be in compliance with NEPA; and paragraph B which says where the state is going to make those evaluations that those evaluations will discharge the Commission from its NEPA responsibilities.

Now, two things are noteworthy about this:

In the version that the Commission saw when it was commenting to 0MB last October the state evaluation and determination under this section not only discharged the Commission from its NEPA responsibilities, but also discharged all,other Federal agencies from their NEPA responsibilities in connection with the plant.

In the present version it only discharges the Commissi n

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 45 from its NEPA responsibilitie~.

So it is possible that there could still be some duplication between other agencies in the states even though the duplication between the Commission and the states has been taken care of, although, to address that problem there is a new provision in the bill which says that the Commission or states acting under this section shall be the lead agency under NEPA.

So presumably the net effect is that while other Federal agencies may indeed still have some residual NEPA responsibilities they do not go so far as to require those agencies to independently prepare their own statement. It may be sufficient if they are reviewed, the lead agency statement prepared by the state.

Also, that Commission environmental responsibilities under Federal laws, aside from NEPA are not aff:ected.

For example, we would have some responsibility apart from NEPA to look at impact on historic sites as one example.

We would have some obligation probably to look at impacts on fish and wildlife pursuant to the fish and wildlife coordination act apart from NEPA..

It is only our NEPA respons1bili ties that would be discharged.

On Page 34, paragraph 3 two-thirds of the way down on the page says that if the states aren't going to p*erform these reviews then the Commission shall have the exclusive authority to determine.whether the facilities will be needed

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 46 or whether the fac+/-lities will be in compliance with NEPA.

This has been drafted so as to avoid any impression that states are preempted if they elect not to participate in the program.

MR. SHAPAR:

This takes care of the comment that the Commission made on the earlier version.

MR. MALSCH:

That's right, we had expressed concern that whatever language is developed it not preempt the states in the event the states chose not to participate in the program.

There is a small drafting problem in the sense that it is kind of silly to say the Commission shall have exclusive authority to determine compliance of NEPA as against the states when the states aren't required to comply with NEPA any way.

But in any event, it is clear there is no preemption.

On Page 35 we have already discussed Paragraph "d".

That is the preemption savings provision which says that the present preemption in the Atomic Energy Act is per.served and that the Commission, rather than the state, has the respon-sibility to assess environmental impacts or radiological safety.

MR. SHAPAR:

This would not affect then, the amendments to the Clean Air Act.

MR. MALSCH:

That's right.

On Pages~36 thru 39 are the guidelines which the Commission is to promulgate for approving state programs and

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 47 they include, as I mentioned, provisions to assure compliance by the state with NEPA, including consent by the state official to assume the status of a responsibile Federal official within the meaning of NEPA and consent to the juris-diction of Federal Courts.

In our comments we had expressed some concern about whether states might find objectionable a requirement to assume the status.of a responsible official and assume juris-diction of the Federal Courts, although in the earlier version it appeared that the jurisdiction of the Federal Courts was exclusive and the state courts were also the jurisdiction.

That is no longer so clear.

On the other hand, there is the same problem here as there is with the state certificates of need. ~t isn't clear exactly which court is suppose to have jurisdiction over the state NEPA determinations.

Presumably without. saying a!}.:y:thing it might end up in a district court and you might have two proceedings pending at the same time.

One in the District Court and one in the Court of Appeals and that may not be such a hot idea-.

New provisions are added in paragraph 2 to require the state to give Ilrea-soriable ~eor:i.siderati0ri *.to:-eqon~m.tca.1-ly.

feasible alternative sources of power, including conservation, solar energy, et cetera.

These are pretty much a codification of what the existing law provides.

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Finally, there are provisions on Page 38 in paragraphs (5) ---

COMMISSIONER GILINSKY:

Let me ask you about provision 3.

How many states would you say now ha\\te that sort of expertise and have the resources to conduct these kinds of reviews.

Are we talking:"about a handful of states or a lot of states?

MR. MULLER:

It is more like a handful.

New York and California apparently in pretty good shape now.

COMMISSIONER. GILINSKY:

So the o*thers would have to crank out and develop the resources and the institution and so on.

MR. MULLER:

That's righ.t.

48 MR. SHAPAR:

At least crank it.up to the level that would meet the guidelines that we haven't-establis.hed*.yet, because some of them are doing it now.

I guess what, 25 states have NEPA statutes or something like that?

COMMISSIONER GILINSKY:

My question was, how many are able to do it more or less the way that we do it.

MR. SHAPAR:

If the guidelines reflect the way we are doing it now, I would guess that very few states do a job that is comparable to the job that the NRC does.

MR. MALSCH:

Although the bill does provide something that*,::.:th.~y have not -- do - *

• • not have, namely, technical assistance and financial assistance to do an adequate NEPA

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 49 review.

COMMISSIONER GILINSKY:

Yes, but to pull all *of that together and have somebody to produce it takes time.

MR. MALSCH:

Right.

MR. REAMER:

But a program might cover only some determinations.

MR. MALSCH: That's true. It could be all or part of the NEPA reviews.

It need not immediately perform the entire function.

They could choose to just look at the NEPA power for example.

MR. SHAPAR:

There is a third option as well, and that is that it explicitly gives us the authority to use data that we get from a state that isn't part of an approved program, although that can be attacked in our proceedings and in courts.

MR. MALSCH:

In fact, that was added at our request because it is an approach away from the programmatic NEPA turnover in a direction of the case-by-case reliance that we had originally thought was a better idea.

COMMISSIONER GILINSKY:

Now, where is that provision?

MR. MALSCH:

It is in (i) I believe, on Page 40, bottom of Page 40 to the top of Page 41.

That was added at our request.

Although as this provision provides while we can

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 rely upon the data analysis and conclusions of the state, those dat~~atialysis.;andJ.co~clusions a~e ~ubject to challenge in our hearings, unlike the determinations made by a~state under an approved NEPA program.

COMMISSIONER GILINSKY:

This was.. in effect our recommended approach?

50 MR. MALSCH: Well, not quite, because our recommended approach would have provided in some circumstances for no challenge before NRC.

So this doesn't go quite all the way in the direction of our earlier recommendation, but it is a strong step in that direction.

It doesn't quite go that far.

CHAIRMAN HENDRIE:

Well,~_it picks up the alternate state review section that we drafted back in September or October.

MR. MALSCH:

I think it does.

CHAIRMAN HENDRIE:

It is just recognition of what I believe already to be the case, that is our authority to use state work products within our own system.

MR. MALSCH:

Yes.

One thing that is missing from this that could conceivably be helpful is it isn't clear from this subsection (i) who defends in the NRC hearing the state data analysis conclusions.

Presumably it would be the state that would have the responsibility to defend it, and some helpful legislative history along those lines would further the intent

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 or the original intent of the section.

COMMISSIONER BRADFORD:

Would that be whether we rely on it or not?

MR. MALSCH:

Presumably it wouldn't be an issue.

COMMISSIONER BRADFORD:

If we rely on it it would be somewhat erroneous wouldn~t it?

MR. MALSCH: Well, that's the question.

If we rely on it it would become our own, but who is ours, the staff or the Commission or the Board's or who?

It is not inconsistent to have the Commission rely upon a state conclusion, yet not have any independent evaluation of it by itself, but instead have relied upon cross examination of state officials or the experts who developed the analysis for the state.

In any event, that matter could be something that could be clarified in the legislative history.

There are three other things noteworthy in the guidelines.

One_ ii:'.Lprovisions in guideline 5 and 7 on Page 38 that calls for something in the program to assure coordinated and timely decision and coordination witl:i,,related federal reviews.

And then in Paragraph 9 on Page 39 some provisions to assure consideration of Regional factors.

I'm looking at the en~ironmeBtal and facility need.

These are designed to accommodate comments to.the,_effect that if a state as opposed to the Federal Government is to do the NEPA reviews there has to be some mechanism to consider interstate 51

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 impacts, impacts that would occur beyond the boundaries of a particular state.

These provisions are designed to accomplish that.

The same, subsection "f" on Page 39 also has that same ---

COMMISSIONER GILINSKY:

Do you have any notion of what kind of provisions these may be?

MR. MALSCH:

Well, presumably you would take them into account by having some mechanism for input from adjacent states and consideration of their views and comments as a part of the state decision process.

COMMISSIONER KENNEDY:

And they can use their existing regional compacts.

MR. MALSCH:

Right, in fact, that is subsection "f" It~sp~tifib~lly says can and are encouraged to use regional organizations to perform the NEPA reviews as opposed to doing it all by their lonesome.. That would probably be the ideal way of factoring and understanding their pacts.

To have the actual evaluation done by some interstate organization.

COMMISSIONER GILINSKY:

organizations tend not to -

coordinating groups.

Well, except these have the staff or literally 52 MR. MALSCH:

Some compacts are substantial regulatory bodies in their own right.

For example, the Susquehanna River Basin Commission is its own regulatory agency in its own

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 right and has a staff and actually has licensing.. cg.nd permit authority.

53 As a general matter the kinds of interstate organizations you see under, for example, river basins, the normal river basin commission doesn't have any big regulatory clout, but some do.

Susquehanna is an example.

Delaware River Basin Commission is another example of an agency that---

interstate agency that has clear regulatory authority and a staff to accomplish it.

Bage240 riUthorizes -- subsection "g" authorizes the Commission to terminate or suspend financial*Tassistancec:*t:o:>

a state and terminate or suspend its approval of a program if the state isn't adhering to the program as originally approved by the Commission.

We had discussed subsection "h"* ~hich is a provision whereby states with approved programs can receive and request federal assistance.

We discussed "i" which is the provising enabling NRC to rely upon state analyses data conclusions and findings.

Sub$ection "j" is the grant authority, the,,Commission grant. authority for two states for organization, development arid.::.adihinistration of a NEPA program.

One thing noteworthy here is a provision which authorizes.but does not require a state to use a part of its grants to tund intervenors in state NEPA proceedings and if the state wishes to do so, this

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 funding would be in accordance with the same standards and criteria as would be applied by the Commission under its intervenor funding authority.

COMMISSIONER BRADFORD:

Do you mean there is no ceiling on the overall amount under this section by just intervenors in general?

MR. MALSCH:

No, although there is a ceiling on the type of grant that can be made to individuals to the type of money the Commission would pay forits own employees or own consultants; but there is no overall ceiling, except that there would be an overall ceiling in terms of availabile appropriations.

And the Commission is authorized within the level of appropriations to alloca~e money among various classes of proceedings.

So it is conceivable.. as a matter of practice that there would be actual limits to Commission financial assistance to certain classes of proceedings.

MR. SHAPAR:

I would think the authorization and the appropriation committees at the time our budget came up might have some ---

54 COMMISSIONER KENNEDY:

This is a general authorization isn't it?

MR. MALSCH: Right.

COMMISSIONER KENNEDY:

It does not provide any funds to carry it out?

MR. MALSCH:

That's right.

(,*

! *-*~.

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER KENNEDY:

Or even indeed authorizing specific funds for carJ~iug~it out.

MR. SHAPAR:

It authorizes sufficient funds for carrying it out though for fiscal year '79.

'"There: a~e._.atithor1zea::::t:.t:L~e:-:3,ppr0.~J.i,ia.t;edtift>r.,,th.:Ls

~.....,. *-**

p_ur_:p_~s;e s1i9b-.. sugis.**:a,$._ :n.iay be necessary for the fiscal year ending Septemb~r 30th '79."

COMMISSIONER KENNEDY:

Right.

55 But then, presumably the authorizing committee would take a look at that again in conjunction with the appropriating committee to decide what that amount is.

MR. SHAPAR:

Right.

MR. MALSCH:

I think that completes the NEPA program in the bill.

The next is section 196, Federal and State Coordination.

The Commission has not had any significant comments or problems with this in the version before it last October.

What it does, it authorizes the Commission to establis a schedule for completion and comment of all 6f:::itsvteviews and is authorized to cooperate with other Federal, state or regional agencies with decisionmaking autho+ity with an idea to establish target dates. for completion of'their reviews.

The section is very carefully drafted so as to avoid any implication that agencies have an obligation to meet

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 target dates and to avoid any implication that the Commission would intrude upon the substantive decisionmaking authority of any of the other Federal or state agencies.

MR. SHAPAR:

Of course, there is floating around a draft executive order in which, I guess, you all were asked to,_~comment and give counterpart of similar authority to DOE.

That, I guess, has not gone any vast place up to now.

COMMISSIONER BRADFORD:

What is the status of that in terms of timing?

Will it simply await enactment of this legislation?

MR. SHAPAR:

I don't know the answer to that question.

MR. REAMER:

It seems that certain provisions in that sense, I think were finalized prior to the,!enactment of the act.

MR. SHAPAR:

In any event, it is probably going to

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run into trouble.

MR. MALSCH:

Also, this provision doesn't give DOE any particular authority.

It is addressed to Commission authority, not to DOE.

Okay, I have mentioned paragraph "b" here, that is simply the lead agency concept incorporated into a statute and would say that the Commission or state would be lead agency under NEPA and I think that was intended to take care of the problem of other federal agency NEPA responsibilities.

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 44 contains a provision at the top of the p~ge':,which is a savings clause which was added at the request 57 of the Antitrust Division in the Department of Justice to preserve the present division of state and federal authority over any trust matters.

It may possibly be worded too broadly because some people have argued this would not permit, for example, a state to withhold a NEPA need for power certification on the grounds that to do so within the meaning of this section, impose a burden on interstate commerce.

But while the language may have some slight pro}?lems, the concept' was:.'simply to preserve the existing state of law on antitrust matters.

MR. SHAPAR:

And it is probably not needed.

MR. MALSCH:

It is probably not needed, that's right.

That brings us to intervenors, funding of intervenors, Section 197.

This for the most part almost well, in fact almost entir.e}y reflects language which the Commission itself drafted which in turn was based upon a tegislative proposal by Senator Kennedy.

MR. SHAPAR:

I think with the exception of one comment that Commissioner Bradford made it is not accommodated, the extend to or something like that.

MR. MALSCH:

we11; there were four or five comments that2we made* that were not accommodated.

Most of them are not terribly significant.

COMMISSIONER BRADFORD:

I hope you are not including

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 mine.

MR. MALSCH:

No.

(Laughter)

The one important difference between this version and the Kennedy bill is that this does not authorize any funding of intervenors in judiciary review proceedings.

58 The Kennedy bill would have.

This only applies to administrativ proceedings before the Commission.

MR. SHAPAR:

But the general model when this was first drafted, I think, was the Kennedy bill with the emendation that the Commission wanted in the earlier review process.

MR. MALSCH:

That's right.

It has been -- a~couple of things were added at NRC-~:s request.

For example, the discretionary authority to extend funding and rulemaking proceedings was added at NRC's request.

Some of the cirteria on----

COMMISSIONER KENNEDY:

That's essential in the light of if we are going to have this sort of thing in light of the standard review plan in the standard plant, which would be rulemaking.

MR. SHAPAR:

And it is a pilot program.

MR. MALSCH:

That's right, it is described as a pilot program and has a fixed termination date of, I think, 1983.

Let me see no, December 31, 1982.

Although funding could be extended to proceedings underway on that date.

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The criteria are pretty much the same as the Commission saw it.

The Commission had suggested in its 0MB 59 comments that criterion two on page 45 be deleted as redundant with criterion three, but I don't-think the two of them together cause any harm.

The criterion that would have required the person *:i;-eque~t{ng'assistance to describe the impact the inter-vention would have on the proceeding was deleted at NRC's request and a provision that candidates for.:.funding must show some special significant interest in the proceeding beyond or~inary standing to intervene was also deleted at NRC's request.

The rest of it is as NRC had seen before.

NRC has sugge~ted deletion of the terminati6n date in paragraph "i" expressing in that regard a concern about proceedings under way on that date.

However, Commissioner Kennedy suggested language that would simply preserve the authority for pending proceedings and that provision was adopted.

So the concern NRC had expressed about that, I think, has been largely taken care of.

CHAIRMAN HENDRIE:

Anything spicy in the Conforming Amendments?

MR. MALSCH: No.

COMMISSIONER KENNEDY:

I notice subsection "g" on the bottom of Page 4 7 would provide one. further *~lternati.ve for the courts to ext:end5.matters before the' Commission not

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MR. MALSCH: Well, except it is drafted so as to limit judicary review.

Without this prov.i:sioR*/ - I :*thihk the review would have been even broader than it is with the provision and it says some tnings that are very useful, for example, a Commission -- a court can't stay a proceeding on the merits solely because of an error made in funding.

A provision which is kind of useful.

There is nothing fancy or unusual about the Conforming Amendments.

There is one thing you ought to be aware of about the effective dates, and that is that the 60 site permit and standardization provisions are effective right away, but the intervenor funding provisions are not effective until 180 days after enactment.

So there could very well be, under this bill, a number of significant.site permit and standardized design*proceedings as to which there would be no intervenor funding.

I don't know why they chose the effective dates as they did.

COMMISSIONER BRADFORD:

Well, you did say you didn't know why, but we did call it to their attention.

MR. MALSCH:

We have called it to their attention informally.

I don't think the version that we had last October had the same kind of effective date and I don't recall that the Commission addressed them.specif icaJly.. _

And thatrs it.

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CHAIRMAN HENDRIE:

It was to allow us to get some rules written wasn't it?

MR. MALSCH:

There is a requirement in the funding provision that we promulgate rules.

MR. SHAPAR:

And a specified date then.

MR. MALSCH:

I think that's right,yes.

CHAIRMAN HENDRTE:

The regulation should be adopted by the Commission shall take effect no later than 180 days after the date of enactment and then Section 301 becomes effective at that point, so it allows for rules to

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Otherwise, we are going to have to decide for financial assistance on an ad hoc basis if the thing went or wasn't effective.

Other comments?

Good, thank you very much.

(Whereupon the meeting was concluded at 3: 20 p.. m.)

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