ML22230A168
| ML22230A168 | |
| Person / Time | |
|---|---|
| Issue date: | 03/16/1978 |
| From: | NRC/OCM |
| To: | |
| References | |
| Tran-M780316 | |
| Download: ML22230A168 (1) | |
Text
RETURN TO ~ECRETARIAT RECORDS NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
DISCUSSION OF NRDC PETITION ON TARAPUR EXPORT LICENSE Place -
Washington, D. C.
Cate -
Thursday, 16 March 1978 ACE - FEDERAL REPORTERS, INC.
Official Reponen 444 North Capitol Street Washington, D.C. 20001 NATlONWIDE COVERAGE* DAILY Pages 1 -
29 Telephone:
(202 ) 3.4.7-3700
(
OISCLAIMER This is an unofficial transcript :offl_ me~ting of the U?d States*
Nuclear Regulatory Commission held on <...,,r/ n~ l6 1 l9LL in the *
- ~
Commission's offices at 1717 H Street, N. w:, Washingtdn, 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 theforrnal or informal record of decision of the matters discussed.
Expressions of opinion in this transcript do not necessarily reflect final determinations ot belief~.
No pleading or other paper may be filed with th~ Commission in.**
any proceeding as the result of or addressed to an,Y statement or arg~rment contained herein, except as the Commission m_ay authorize.
I
CR 6793 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16
. 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc.
25 a.m.,
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY Cm.'.lMISS ION DISCUSSION OF NRDC PETITION ON TARAPUR EXPORT LICENSE Room 1130 1717 H Street, N.W.
Washington, D.C.
Thursday, 16 March 1978 The Commission met, pursuant to notice, at 10:45 BEFORE:
VICTOR GILINSKY, Acting Chairman PETER BRADFORD, Commissioner ALSO PRESENT:
T. ROTHSCHILD s. CHILK J. BECKER M. GUBIN J. DEVINE J. KELLEY
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
- Ace-Federal Reporters, Inc.
25 P R O C E E D r-N GS (10:45 a.m.)
.COMMISSIONER GILINSKY:
Let's proceed.
Trip, are you going to handle this?r MR. ROTHSCHILD:
I will start on this, with the assi*tance of Jim Devine today.
2 We have before us today a February 13th petition from NRCD,*Union of Concerned Scientists and the Sierra Club, requesting that the Commission reopen the hearings that it held in July 1976 on exports to Tarapur.
The Commission issued an opinion in the spring of 1976 saying NRDC was not entitled to hearings on the Tarapur as* a matter of right, that if<:*any hearings were to be held, it would be on the matter of Commission discretion.
And that's where we stand right now.
We are talk-ing about whether this hearing should be held as a matter of Commission discretion.
The NRDC petition basically had four major con-
-tentions, there were four areas they wished to explore in public hearings.
One, they were concerned that there was no im-mediate need for the fuel in India and that the Commission could withhold action for several months on application, XSNM-1060, which is now before the,Commission.
Secondly, they were concerned about the adequacy
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc.
25 3
of IAEA safeguards that would be applied at the Tarapur fac-ility.
Three, they had concerns about the adequacy of India's assurances that they will not use United States supplied material for nuclear explosive devices of any: kind or any research or any research for nuclear explosive pur-poses.
And fourth, they wished for a progress report on what had occurred during the past 18 months regarding neg-otiations on the return of spent fuel from Tarapur to the United States.
This issue was discussed at_ great length in the July 1976 hearings.
- Ano. they wanted to know where we were at with that regard.
They also in that same petition requested that the Commission consolidate consideration of XSNM:".il060, the*
license is presently before the Commission, which we have received Executive Branch.and Staff views on, with considera-tion of XSNM-1222.
That is an application that we have not yet received Executive Branch views on, and therefore, we have not received Staff vi*ews on.
Earlier this month the Commission met on that sub-ject and issued an order on consolidating consideration of those two applications, although we explicitly stated in that order that we res~rve the right to act upon those two
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reponers, Inc.
25 4
applications at different times.
The Department of State responded to the NRDC motion first by sending a letter stating that the Commiss'ion should act prompty on XSNM-1060, that India needed this fuel in February.
Secondly, they stated that they were not~in favor of public hearings.
I gathered from their pleading they were not in favor of public hearings either now or at some later date.
- The NRC Staff also responded to this motion.
They recommended that XSNM-1060 be issued promptly without the Commission holding discretionary public hearings first.
The Staff did not explicitly address the issue of whether. they would favor hearing if the Commission were:*.to act upon XSNM-1060 now, and then hold a hearing thereafter, on the generic issue of future exports to~**Tarapur.
They did not explicitly address that.
The State Department also recently, March 6th, filed a memorandum with the Commission supplementing the public record on development since the last Tarapur*hearing.
They tried to address each of the concerns that the NRDC petition had raised, and you have got that before you; SECY-78-l0SA.
You also have before yo.u a memorandum from the Office of Policy Evaluation on whether a hearing should be
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reponers, Inc.
25 5
held. -
And that is basically where we are at procedurally.
As far as alternatives for the Commission, there are several possible alternatives that we can consider.
These were basically outlined at the last public *meeting *that-**we held earl:ier--this month.
One would be to determine that the legislative.
type hearing would be contrary to public interest.
You could just say:
No further public proceedings required.
We would issue an order explaining why the Commission felt it had adequate information to act upon licenses to India without further hearings, and we would explain why a public hearing would be contrary to the public interest...
A second alternative would be to order an oral legislative type hearing.
The Comrriissi'on has taken the position that adjudicatory hearings are not required in ex-port licensing proceedings. *,And the new regulations, the new Part 10 which will go into effect 6n May 3rd, specifically does not provide for adjudicatory hearings.
COMMISSIONER GILINSKY:
Are you going to deal with the scope separately.
MR. ROTHSCHILD:
Yes, we will deal with the scope of the hearing separately.
Let me just go through some alternatives.
A third alternative would be to not order a
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc.
25 6
legislative type hearing immediately.
We could order further written comments.
And perhaps on the basis of written com-ments, if you wanted to convene a legislative type hearing, you could, of course, do so.
A fourth alternative would be to deny a hearing on license number XSNM-1O60 and act.'upon that license applica-tion now, which is -- this is a course which is favored by both the NRC Staff and the Department of State.
And then we could decide what to do with the hear-ing now or at a later date.
One option would be to go ahead
- and issue 1060 or to deny 1060, and then order public hearings to be held in we will say approximately six years or four weeks, how ever long it would the Commission to issue an order and schedule public hearing.
That hearing, of course, would not be on XSNM-1060, but that would be on the generic issue of exports to Tarapur.
The Commission in the past has not held export license hear-ings on specific license applications.
Our original Tarapur hearings were not tied to specific.*.application.
They were on the exports to Tarapur generically, and we specifically re-serve the right in our May 6, 1976 opinion to issue licenses pending before the Commission if we felt the circumstances warranted it.
Under this course, the Commission could act upon 1060 and the order a public hearing, which could be held in
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21
. 22 23 24 Ace-Federal Repo"ers, Inc.
25 7
approximately four to six weeks.
Another option before the Commission would be to deny a hearing on 1060 and defer decision on whether a hearing should be held at some later date.
We haven't received Executive Branch views on XSNM-1222 and the Commission may wait to see those views be-fore they ordered a public hearing.
I think those are.the basic options before the Commission.
If the Commission wished to hold a public hearing, whether it be a written hearing or whether it be an oral legislative type hearing, the Commission could shape the issues as they saw fit..
If the Commission wanted to hear about the ade-quacy of safeguards, they could limit the hearing to just that issue.
If they wished to have it address each of the issues that NRDC.raised or any other issue that any member of the public would like to raise, they can do that.
We would set forth the scope of any such hearing in the order that we would issue.designating a hearing 7 if it is the desire of the Commission to hold a hearing.
I think another point that needs to be brought up today is the fact that although the new regulations do not go into effect until May 3rd, at the last *Commission meeting, we discussed whether we should in effect treat these
\\
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reponers, Inc.
25 8
regulations as effective with respect to the-issue of --
CON.MISSIONER.GILINSKY:
Well, I think it is clear that we are running under-the current regulations, and I think what ever decision we take will be taken by all Commi$sioners.
MR. ROTHSCHI~D: And as we said in our*memo, if two Commissioners want a hearing, we understand that Chairman Hendrie and Commissioner Kennedy said they would vote for a hearing, if there were two votes for a hearing, to get us over any type procedural obstacle.
COMMISSIONER GILINSKY: I think the decision will simply be taken by all the Commissioners together.
MR. ROTHSCHILD:
And I would now like to turn this thing over to Jim Devine.
I think he is going to discuss some of the policy options behind each of these various op-tions and some of the pros and cons for the Commission to consider.
MR. DEVINE:
OPE reels that irespective of your decision on a hearing, which I will treat a little later, that there is a persuasive case for issuance of this license.
It was approved by the highest levels of the Executive Branch.
I 1;:hink there is -- the larger nonprolif-eration objectives would be served by issuance of this license And I think failure to issue would have an adverse impact on our efforts to secure, for example, full-scope safeguards in India~.
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reponers, Inc.
25
\\ )
9 Looking at the new criteria in the bill, we be-lieve that this case meets the new six new export criteria.
The important thing here is that by issuing this license, you would not prejudice action either on 1222, which is still pending, or your option to conduct a generic hearing on our supply relationship with India.
The Executive Branch treated in its latest sub-mission,the four concerns of the petitioners.
They reviewed, for example, the question of disposition of taps feel.
The Executive Branch did undertake to explore this with the
\\
Indian government after the last hearing.
The Indians were
-- did agree in principle to such a buy-back scheme as was discussed at the last hearing, but after studying the question more extensively, under the _umbrella of the NSC ad hoc**
group, it was concluded that extraordinary effort would be required and at least six years before fuel could be returned to the United States at a cost of.several million dollars.
They then embarked on a course under which they provided consultants to the Indian government, and they now have concluded that reracking is feasible in India at the existing spent fuel ponds, which would carry them through the early 1980s.
COMMISSIONER BRADFORD:
Is there something unique about Indian spent fuel, or is that true all over the world?
MR. DEVINE:
As I understand it, the storage arrays
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ce-Federal Reporters, Inc.
25 10 in India-are unique in that they are six-by-six; Mike; as opposed to the standard seven-by-seven.
MR.GUHIN:
In terms of the assemblies themselves.
There are also specific circumstances surrounding a situation which would be associated with return, which may or may not exist elsewhere, in terms of their cranes and their capabil..:.'-
ties, in terms of shipping from --
COMMISSIONER GILINSKY:
You are talking about the local situation?
MR. GUHIN:
The local situation itself, in terms of transport and these kinds of considerations.
COMMISSIONER GILINKSY:
I remember a point was made about the lack of containers and so on.
MR. DEVINE:
Casks.
COMMISSIONER GILINSKY:
Casks.
Is this because of the special nature of the fuel?
A great deal of fuel is being moved around the world.
We have retransfer requests coming in here pretty often.
MR. GUHIN:
That is not related to the nature of the fuel.
As far as I understand it, that is just simply due to their -- there happens to be limited cask availability.
As you know, there are very few ships which are transporting this, for example, and that these are, as I understand it, if you lobk at it~ at least their contracts, it i~ (inaudi-ble).
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc.
25 11 So there is not only the cask availability, but also shipping.
But I think that cask was one of the prime limiting factors in terms of their time estimate, as to taking six years.
MR. DEVINE:
The Executive Branch also reviewed the question of urgency. As was the case in.the earlier export situation, the urgency here relates to the fuel fabrication facility and not directly to the reactor.at Tarapur.
However, if the fabrication facility is affected, then the Indian practice is to turn down reactor output to make in sync so to speak, with the fuel fabrication facility.
So that if this license is not issued on a timely basis, it would have an ultimate effect on the reactor at Tarapur.
COMMISSIONER GILINSKY:
What is the supply of fuel at the present time?
MR. DEVINE:
They have on hand, I think, 140 assemblies, on hand.
fuel?
COMMISSIONER GILINSKY:
Just in terms of tons of MR. DEVINE: What they have on hand?
COMMISSIONER GILINSKY:
Yes.
MR. GUBIN:
I don't know that specifically.
We have looked at it really in terms of the operations of the
2 3
4 5
6 7
8 9
10 11 12 13 14
- 15.
16 17 18 19 20 21 22 23 24 Ace-Federal Aepo"ers, Inc.
l.,/ 25 12 fuel complex facility.
The Executive Branch goes through this in detail.
It is slightly unclear as to some details of that operation.
For example, they mention going into a scrap operation; it is unclear whether this is going on right at this time, or whe-ther it would be part of the -- at a later date, and it is unclear, for example, whether they continue to put scrap back in as they are going with fresh feed.
COMMISSIONER GILINSKY: You are not clear then, in terms of how many years' supply there is at the present time?
- MR. DEVINE:
Oh, yes.
MR. GUHIN:
Yes, for the next -- essentially at least for the next r~load for each of the reactors, is avail-able in India.
And in fact, the.Executive.Branch memo points out, I think, --there is concern there or at least the idea that they.. wish to go to* a new assembly, and '.*.indeed they are building this amount, with a view to being able to redo a fab operation, and be able to shift over to a new assembly.
that they consider would be more efficient.
COMMISSIONER GILINSKY:
Let's go on
- MR. DEVINE:
The third point raised by the peti-tioners was the_ adequacy or the forum in which the President of.
- India, given the nonproliferation assurances alluded to in
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reponers, Inc.
25 13 original State Department paper.
The latest State submission notes that he did have conversations with both President Carter and British Prime Minister Callahan earlier this year and cited various other public pronouncements he has made over the course of the last year in which he indicated that India had no need for an explosive capability, they had no intention of detonating another device.
Finally, on the question of safeguards adequacy, the latest State Department submission contained nothing new*~
In other words, the issue as it has been presented to you*
and several others for us, is still with us.
We do not have independent, if you will, verification of the adequacy here.
Now, the question you will have to address is whether you want to tackle this issue in the context of either this license application or in the context of a generic hearin on the Indian nuclear relationship.
You have before you sepax-ate from this case a draft action plan that the Staff has been working with the Executive Branch on, various options that NMSS has developed.
You will be getting comments from IP on that options paper.
It would seem to me that the question of IAEA safeguards adequacy should be addressed in that context rather than a specific license application.
Now, turning to the question of a hearing, as I --
1-e i
I 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reponers, Inc.
25 I thihk the legislation indicates that you-should have a hearing when it would.provide you 14 COMMISSIONER GILINSKY:
Let's go back to the license.
You mentioned that it complied with the -- that the requirements of the new act have been carefully examined by your office; Michael, your office?
MR. GUHIN: We.looked at the question, yes, and in terms of the applicable criteria, of course, the sensitive technology is not applicable because we are not dealing with that.
But in terms of the others, we have looked at them and considered that the.assurances in the various categories are consistent with the legislation.
COMMISSIONER GILINSKY:
Have you examined that?
MR. ROTHSCHILD:
Yes; I think they meet the pre-sent criteria.
COMMISSIONER GILINSKY: Why don't you go on?
MR. DEVINE:
It seems to me that hearing is war-ranted, perhaps,_under three.conditions.
One would be when it would provide you with new information, better information which will enable ¥OU to make a more informed decision.
The second would be a hearing, if a hearing were justified on the basis of elaborating the public record, separate a_nd apart from what new information it might bring to you.
2 3
4 s
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc.
25 15 And finally, whether a heating might be justified as an end itself, as perhaps an earnest of the Commission's commitment to greater public participation in the export process.
With respect to the first of these, I rather doubt that a hearing will result in any new information, that could be above-:.and beyond this very voluminous file we have before us.
COMMISSIONER GILINSKY:
You are referring to a hearing specifically on this license, or a hearing in general?
MR. DEVINE:
A hearing on this license.
Sec.o:ndly, I believe. that the latest State Depart-ment submission, including its enclosures, have been placed in the public document room.
Hence, aside from the classified briefings you received over the course of-the last several months, all this irif.orrnation is available to the public.
So I do not believe that a hearing would result in a greater elaboration of the public record.
Finally, you do have the option of holding hearings as I indicated, if you believe that it would be justified as an end itself.
Now, that is something that I don't think any of us at this side of the table can comment on.
It is some-thing that you have to consider.
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
'Ace-Federal Reponers, Inc.
25 But in summary, I do think that irrespective of your decision on a hearing, that this particul.ar~license application should move ahead.
16 COMMISSIONER GILINSKY:
And let' see; that was with respect to a hearing tied to this license.
Any thoughts about a broader hearing, or do your comments apply there, equal]::y?
MR. DEVINE:.: ::
I think they probably would apply equally to a broader hearing. That is assuming that you chose to address the safeguards question separate from India or what ever.
MR. GUHIN:
I would agree with that, but I would like clarify that in the Executive Branch.'.'S submission, of course, in its language it was very specific in opposing a hearing in conjunction with issuance of this license.
So, in fact, this is the Staff view, also, which was put forward.
And I think that was the issue that was being confronted when looking at the possibility of a generic hearing as was the earlier one, and that in fact there could be a different array.
I think OPE's analysis of the basis::i.and aspects for it, I think, are equally valid, but then one could have a differen:t*'-.array of disadvantages or the extent to which identified disadvantages would actually apply.
And I don't think we have at this stage, at any
2 3
4 s
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21
- 22 23 24 Ace-Federal Reporters, Inc.
25 17 rate, we have a clear reading on th.at.
We have:*.it from -,the Executive Branch as to how they view it. And we have not addressed that question specifically.
~~~
On the face of it, there would be far less MR. DEVINE:
To elaborate on that, I think clearly the foreign policy implications of a hearing on a subsequent license or generically, would be far, far less than pulling it on this particular license application.
So that would be, as Mike pointed out, perhaps I would say a reason for a hearing, but certainly an argument that, you know, the foreign policy implications, the question of-*_urgency would not arise, if you were to order a generic hearing.
For example --
COMMISSIONER GILINSKY:
Were there any commitments made by the Commission in a previous round of hearings*:that would bear on this question?
MR. ROTHSCHILD:
No, there were not.
I would like to reiterate that the Commission in its earlier Tarapur ~-:opinion, took the position that if we held public hearings it would not be tied to the applica-tion, specific applications.
One of the problems is frequently you may get --
the hearing process may get delayed :fr6rn-tbe original schedule that you set forth and people may want extensions of tine to file
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc.
25 18 various pleadings, which the Commission may choose to grant if there is time.
And sometimes there is a situatiqn where they may be certain foreign policy pressures to act upon a given license.
So the Commission has avoided that in the past by saying we are going to hold a heari~g on the generic issues raised by petitions, without tieing it to a specific license application.
COMMISSIONER GILINSKY:
What would a hearing entail, can you sketch out what --
MR. ROTHSCHILD:
Well, basically~-
COMMISSIONER GILINSKY:
-- sort of schedule would be involved?
MR. -*._ROTHSCHILD:
Basically' what would happen' I thihk,,we would need to issue an order setting forth hearing in a Federal Registernnotice.
That would prob~bly ~ake~aco~-
couple of weeks to get Commission concurrence on.
I think it is going to take three Commissioners in a room raising their hands.
It may take us a couple of weeks bnti:Lcwe have a quorum again.
I think we can have an order ready for you as soon as a quorum is available,-to issue such an order.
I think we would probably waht to leave a couple of weeks for any groups who would like.;to submit of Freedom of Information Act requests for information to do so.
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc.
25 19 I think we can handle them fa+/-rly expeditiously on the FOI it'."equests because NRDC requested:'.:i:nconjunction with the last hearing held in the summer of '76:, all information from the United States government that was available at that time, and they got virtually everything, and there has not been that*much new paper generated in the past 18 months that they might wish to see.
So I think we can handle FOI requests fairly ex-peditiously.
I think you are going to want to give them a couple of weeks to use discovery.
I think you are going to want to give them a couple of weeks to submit written sub-missions to the Commission.
I think you are talking about, you could begin a hearing approximately one month after you issue an 6~der, or *a month to six weeks.
MR.KELLEY:
Would it be under the new rules by then?
MR. ROT.HSCHILD:
If the hearing were after May 3rd, we would have the new rules in effect.
The new legislation also provides that if the Commission would like to adopt temporary proceaures that would cover public participation until May 3rd, we are wel-come to do so.
.And I believe a paper will be prepared for"-::the Commission shortly, suggesting such a course of action to the
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc.
25 20 Commission that would allow us to make these rules effective, you know, if we wanted to hold a hearing at the end of April, or something like,*.that.
But I think a reasonable time schedule, in order to give people time to prepare would be a hearing toward the end of April or early May..
COMMISSIONER BRADFORD:
How has discovery.been used in NRC hearings of this sort in the past?
MR. ROTHSCHILD:
-The Commission took the;-:,posi tion in the Tarapur opinion in 1976, the May' '76 opinion, that discovery should be related to Freedom of Information Act requests.
And that has been codified in the new regulations, which have not been effective.
COMMISSIONER BRADFORD:
You suggested discovery apart from the POI, I thought.
MR. ROTHSCHILD:
Discovery has been limited to the FOIA.
That's what the new regulations call for.
We are a little more elaborate in the sense that we also allow participants to submit questions to the Commission, which they may address to the Executive Branch or to the NRC Staff.
./
In the last Tarapur hearing, NRDC submitted about 110 or 112 questions to the Commission.
We deleted a couple of questions as being irrelevant and submitted t:he,..:rest of it to the State Department and asked.,them*':to respond in writin
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc.
25 21 !
to the 110 questions, which is what the State Department did.
We have provided for option as well, in our new regulations.
So that-::they can seek information through the Freedom of Information Act and secondly, they can submit questions to the Commission which they would like the Com-missioners' discretion to ask to other participants.
If the Commission received such questions, we would need to look at the questions and determine whether we would like to ask them either in the oral hearing or whether we would like to submit them to the Department of State to~.*have them respond in writing, or the NRC Staff or anyone else who would like to have them respond to such questions.
But we have not provided for formal interrogatories.
We have not provided for adjudicatory procedure.
We have not provided for subpoena of witnesses, and we have not provided for cross-examination of witnesses.
I think a reasonable schedule is four to six weeks after we issue an order, to hold an oral hearing, if you would like to do so.
COMMISSIONER GILINSKY: If we take that step, we need a quorum of the Commission.
MR. ROTHSCHILD: I think to issue a Commission order we would need a quorum.
COMMISSIONER GILINSKY:
We can't do what we did this morning, in other words.
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 AcesFederal Reponers, Inc.
25 22 MR. KELLEY:
I would hesitate to say that*we:*can do it.
We did this morning partly because if we didn't do it this morning, then time would have.run on an opinion.
And partly because all we -did was extend the time.
So the more exigent the circumstances and the more innocuous is what you do;,_ the more likely the chance to do it.
I wouldn't want to say that we couldn't issue such an order.
But I have asked the question:
Assuming that you want to have hearing, do you really have to have an order in the next week or two, and the answer has been no.
So:I don't think you ought to try to put out a formal o~der unless there is some real need for it.
CQ.MMISSIONER GILINSKY: ~::'For those,0,who are mystified by that, we had Chairman Hendrie on the loudspeaker, par-ticipating via electronic means.
MR. KELLEY:
And in talking to Trip, I gather an order would not be just one sentence that said there?*is going t6be hearing on Tarapur.
It would lay out various issues and I don't see how we can do that kind of a thing over the phone.
MR. ROTHSCHILD:
We are talking about the scope of the hearing, if you would like to narrow some of the issues.
Secondly, if the Commission were to decide to issue XSNM-1060, or deny it, I think we need an opinion to explain the Commission's action, setting forth, looking at the new
2 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reponers, Inc.
25 export licensing criteria.
As you know, last time we issued a C6MM.issIONER GILINSKY:
If we have an opinion then, presumably, we need a vote to approve an opinion.
MR. ROTHSCHILD:
Yes.
COMM.ISSIONER GILINSKY:
Well, then 23 MR. KELLEY:
You can issue now and explain later, can't you?
MR. ROTHSCHILD:
I suppose you can direct Staff to act upon XSNM-1060 and issue an opinion.
COMM.ISS~ONER GILINSKY:
So far, no Commissioner has acted on this matter, and I think what we will do is consult with the other two commissioners and deal with that matter.
MR. KELLEY:
But you don't need a formal vote to approve that license, because the authority to do so has been delegated.
COMMISSIONER GILINSKY:
To the Staff.
MR. KELLEY:
Yes, except the concurrence process.
COMMISSIONER GILINSKY:
That is if -- now, let me ask you why you feel that you need an opinion, that an opinion is appropriate.
MR. ROTHSCHILD:
There are a couple issues.
- One, if you are talking about the merits of 1060, I think you re-member last time when the Commission issued a license, I guess
2 3
4 5
6
) 7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Repo"ers, Inc.
25 24 XSNM 845; NRDC immediately rushed into court seeking to enjoin that shipment of the material.
The court enjoined for two days, three days, until we could file a brief.
We then filed a brief and the court then removed the injunction.
The material was allowed to This could happen again.
We have no idea what NRDC plans to do.
I think the Off ice of General Counsel *.-feels more comfortable, if there is going to a court challenge, if we have a written Commission opinion:*j.ustifying our order, particularly since the court has seen several other orders on India, showing every time we have issued a license, we have issued an opinion explaining what we were doing.
And I think it makes our action easier to defend in court, if they were to seek an injunction if we.chave a full written Com-mission opinion explaining what we were doing, rather than jus informing the court that we issued 1060, because this litiga-tion is still pending before the court.
We did consolidate, which 0will allow the Com-mission to act upon i060, but we will need to inform the court of our action.
COMMISSIONER GILINSKY:
The court has had this for quite awhile now.
MR. ROTHSCHILD:
Yes.
Unfortunately, there.:.is
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc.
25 really no ready mechanism to get the court to move.
(Laughter.)
25 As you know, we recently, early this week, filed a motion wi th*~the court, explaining the impact of the new legislation upon that litigation.
We took the view that-*.the legislation says that we are not required to hold adjudicatory hearings and informed the court of that.
We £eel that effectively resolves one of the issues in the dispute.
The standing issue still remains before the court.
MR. KELLEY:
Isn't one of the contentions --
there are various contentions one contention, if you will, is license specific, saying, the questioning the need for this shipment now.
And if they are, isn't it appropriate to at least say why this one is needed now?
Some of the others, like the long-term nuclear relationship with India, you can call that more a sort of generic issue, I would think.
MR. GUHIN:
Would any of these risks that you*.:
see, Trip, be mitigated through -- at least to any extent by not simply informing the court that it has been issued, but if you will, in effect a brief opinion, if the Commission were to see that necessary, which would also commit them-selves to a full opinion in a short time period?
1 2
3 4
s 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc.
25 26 I was just wondering if that would at least reduce any of the risks you see.
COMMISSIONER GILINSKY:
In any case, an opinion would require a Commission vote.
It woula require that three Commissioners be present.
MR...ROTHSCHILD:
And we are recommending an opinion I
in this case.
COMMISSIONER GILINSKY:
You are frowning there.
MR.KELLEY:
I am not sure.it would.
The issue in question is this licence; correct?
MR. ROTHSCHILD:
But you would issue an order to go alo~g with it explaining.
MR. KELLEY:
Well, maybe we shouldn't debate legal issues at.~:length right now, but my rea.ction is that if the license -- the license itself you can cut loose with no reasons at all, right?
MR. ROTHSCHILD: Absolutely.
MR. KELLEY: If you can cut a license loose with no reasons at all, why do you need a vote to write an opin,-l ion?
I am not so sure you couldn't circulate it and get it approved.
Just leave, "it is so order," off the last sen-tence.
(Laughter.)
The license is the operative document, and that is
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reponers, Inc.
25 27 gone.
So I don't know.
We can think about that a little further, but --
What do you think, Joanne?
MS. BECKER:
I tend to agree with you, that there is no need to have a meeting *to consider an* opinion.
MR. KELLEY:
If we have already let the license MS. BECKER:
That's right; sure.
MR. GUHIN:
Could I ask one thing here on the -- the Staff has made its view clear publicly that it does not favor delay*:on::the:*_1icense on this because of the hearing matter and it feels that there should hot be,, a hear-ing in conjunction with the *license.
And this regard and to what Trip had said earlier, I think it should be added if the Commission feels that a generic hearing on continued supplies to India,~or perhaps even a generic hearing on simply some of the issues raised in these mot.ions, would be in order, or was warranted, adding to one of Trip's options here; I don't think in that light, if those issues weren't there, that one need wait at all, for further Executive Branch views on the second pending application, 1222.
I think one could proceed, if it is decided to do so, qud:te apart from that, because those may be some time.
As we know, the supply covered by this pending
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Repo"ers, Inc.
25 28 license is estimated to keep the NMC fuel complex in operation for about 18 weeks.
The next license is for a substantially longer period of time.
COMMISSIONER GILINSKY:
Well, I think that:" is what Trip was saying, at least, if we licenses.
not tieing up the I wonder if you could just clarify one point for me.
What does the legislation say about the imposition of a requirement on full safeguards coverage?
What are the time limits on that.
MR. DEVINE:
Unless :the,".cri teria is met; namely~;
full-scope safeguards -- and correct me if I:r:i.a.m wrong, Trip -- are in effect after 18 months --
COMMISSu:ONER GILINSKY: From the signing of the bill?
MR. DEVINE:
From the signing of the bill, there shall be no export of any material which how does it read -- is slated to be exported with 24 months.
MR. ROTHSCHILD:
If an.application is filed 18" months after the bill was signed, full-scope safeguards apply.
That requirement also will apply if the applica-tion if filed with the Commission within -- before 18 months, but the shipment would not occur until 24 months after the bill has gone into effect.
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reponers, Inc.
25 29 So in other words, if you filed an application at the 16th month, but the shipment isn*'~t going to take place for another year, the full-scope safeguards do apply.
COM.MISSIONER GILINSKY:
You mean in 26 months?
MR. ROTHSCHILD:
Yes.
MR. GUHIN:
Or more 'starkly, ~if we got an applica~
tion today which we may well have, but if one came in today which was not to be shipped until 24 months after March 10, 1978, then the full-scope would have to apply.
MR. KELLEY:
Otherwise, it is just applications that are filed 18 months after the bill is enacted.
MR. GUHIN:
Even if we acted on it in two months, it would have to apply.
COMMISSIONER GILINSKY:
Peter?
COMMISSIONER BRADFORD:
No questions.
COMMISSIONER GILINSKY:
Unless anybody has any-thing else to mention here, I think we will have to discuss this with the other Commissioners, and at least one of them was not here because of unforeseen circumstances.
And we will act on the matter then.
(Whereupon, the hearing in the above-entitled matter was adjourned at 11:16 a.m.)