ML22230A184
| ML22230A184 | |
| Person / Time | |
|---|---|
| Issue date: | 05/08/1978 |
| From: | NRC/OCM |
| To: | |
| References | |
| Tran-M780508 | |
| Download: ML22230A184 (1) | |
Text
ORI INA.
RETURN TO ECRETARIAT RECORDS NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
MEETING DISCUSSION OF TESTIMONY ON PROPOSED LICENSING LEGISLATION Place - Washington, D. C.
Date - Monda y , 8 May 197 8 Pages 1 - 60 Telephone:
(202) 3.47-3700 A.CE. FEDERAL REPORTERS, INC.
Official Reporters 444 North Capitol Street Washington, 0.C. 20001 NATlONWIDE COVERAGE* DAILY
DISCLAIMER This is an unofficial transcript of a meeting of the United States Nuclear Regulatory Commission held on May 8, 1978 in the Commission 1 s offices at 1717 H Street, N. W., Washington, D. C. The meeting was open to public attendance and observation. This transcript has not been revie\*ted, corrected, or edited, and it may contain inaccuracies.
1he transcript is intended solely for general informational purposes.
As provided by 10 CFR 9.103, it is not part of the formal or informal record of decision of the matters discussed. Expressions of opinion in this transcript do not necessarily reflect final determinations or beliefs. No pleading or other paper may be filed with the Commission in any proceeding as the result of or addressed to any statement or argument contained herein, except as the Commission may authorize.
1 CR7439 UNITED STATES OF AMERICA DORA:mp NOTES&TAPES 2 NUCLEAR REGULATORY COMMISSION 3
4
'MEETING 5
6 DISCUSSION OF TESTIMONY ON 7
PROPOSED LICENSING LEGISLATION 8
9 Room 1130 10 1717 H Street, N.W.
Washington, D. C.
11 Monday, 8 May 1978 12 The Commission met, pursuant to notice, at 3:10 p.m.
13 BEFORE:
14 DR. JOSEPH M. HENDRIE, Chairman 15 PETER A. BRADFORD, Commissioner 16 RICHARDT. KENNEDY, Commissioner 17 PRESENT:
18 HOWARD SHAPAR, Executive Legal Director 19 C. STOIBER 20 M. MALSCH 21 ALSO PRESENT:
22 E. CASE 23 24 Ace-Federal Reporters, Inc.
25
2 er 7439 P R O C E E D I N G S dora jeri-all 2 CHAIRMAN HENDRIE: Counsel has recommended that we 3 are having a* general discussion:;about the legislation, this is 4 the thrust of this. Howard is going to walk us through this 5 bill and w~ccan discuss sections of it, ask questions and so on.
6 The recommendation is that when we are doing that, 7 the meetings -- I don't knowwhether he said should be open or 8 could be open. I guess, should be open. So we voted to open 9 this one and similar meetings of the same nature.
10 When we come to close on the specific testimony, 11 what is the recommendation there?
12 MR. STOIBER: The recommendation is that they can 13 be closed. It would require specific analysis of the question 14 of frustration of purpose,-.; And one would have to make a case 15 for each one of those on that basis. But it can be done either 16 way from the Commission's viewpoint.
17 CHAIRMAN HENDRIE: At any rate, we are open this 18 afternoon.
19 I see that we have been supplied with actual copies 20 of the bill. It looks much more formidable in this form at 21 this point than it did when it was just a typed fraft that I 22 could make marks on.
23 MR. SHAPAR: Commissioner Kennedy points out if you 24 have the 'Senate version, that will work as wellr because they Ace-Federal Repc;,rters, Inc, 25 are identical bills.
3 CHAIRMAN HENDRIE: What is the Senate number?
2 MR. SHAPAR: 2775.
3 CHAIRMAN HENDRlE: Howard.
4 MR. SHAPAR: I will start off with a few general 5 comments in an attempt to focus this a bit, and then Marty 6 Ma1sch is prepared to go through it section by section as long.
7 as your patience will endure.
8 CHAIRMAN HENDRIE: Victor anticipates a short meet-9 ing.
10 Do you have someplace you want to go at 3:30?
11 COMMISSIONER GILINSKY: No, no.
12 CHAIRMAN HENDRIE: I am sorry. Go ahead.
13 MR. SHAPAR: Most of the NRC recommendations that 14 have been given to DOE in the past have been accepted and 15 incorporated in the DOE bill.
16 You will recall there are four basic comments 17 reflected in the bill. No. 1, improve coordination of federal 18 and state agency reviews. No. 2, accommodation of early site 19 reviews of early site reviews and preapproved standardized 20 designs. Third, minimizing duplicative need for power and 21 environmental reviews on the part of the states and NRC. And 22 fourth, a pilot program for funding Intervenors.
23 And, of course, all those four basic co~cepts are 24 still~ifttluded in this bill.
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25 Other main features -- very quickly -- are the combined
4 jeri CP ahd OL, relaxation of the mandatory ACRS review, elimination 2 of the mandatory CP hearing, the idea of interim operating 3 license, interim amendments to operating licenses, and a rather 4 forceful expansion of the public notice requirements that are 5 in the Atomic Energy Act.
6 Two points that I would specifically bring to your 7 attention are the fact that the NEPA hearings would be hybrid; 8 a hybrid of legislative and/or adjudicatory. Whereas, health 9 and safety reviews would be adjudicatory, as they are now.
10 This feature came in very late. I think this is the first 11 the DOE bill is the first time that incorporated that concept.
12 We hadn't seen it before.
- 13 14 15 The other major point you might want to focus on is the fact that the state decisions would be binding on NRC whether* or not the state program had been approved by the NRC.
16 I think that Marty will deal with that at some length in his 17 comments.
18 The final point I wanted to mention is that although 19 I indicated at the beginning that:most of the Commission's 20 comments on earlier versions have been incorporated, not all of 21 them have. I have asked Marty to bring to your spec+/-ficri 22 attention those points that you made before that are not now 23 incorporated in the DOE bill.
24 With those general comments, Marty will take you Ace-Federal Reporters, Inc.
25 through it section by section.
5 MR. MALSCH: I can either go through sec'tion by 2 section, the way-:_* the bill is organized, or go through the 3 more important sections first and pick up some of the nitty-4 gritty sections later on. It makes no difference to me.
5 CHAIRMAN-.:.*HENDRIE':' '.:;why don It we start at the 6 beginning and pick up the --
7 COMMISSIONER GILINSKY: Just tell us when you come 8 to an important section.
9 CHAIRMAN HENDRIE: Rap on the table.
10 MR. MALSCH: Well, the first section is the title 11 of the bill. There is nothing terribly controversial about 12 that.
- 13 14 15 purposes.
The second section is a collection of findings and The Congress would recognize in Section 2 that a clear and coordinated energy policy consistent with sound 16 safety and environmental controls must include an effective.**
17 and effecient licensing process. which meets -- for reactors 18 which meet applicable safety and environmental crit.eria.
19 For the most part, the findings<apdx:*purpose:sridon' t 20 cause any problems.
21 A~coµpleu6f~the sections are a little outdated.
22 For example, Section 2-A-5, which talks about states which do 23 not elect to make site-specific environmental facility determi 24 nations.' Then in that case the national interest requires or Ace-Federal Reporters, Inc.
25 wants federal exercise of that authority. This may be a
6 carry6ver from earlier versions of the bill which called for 2 a federal preemption of NEPA responsibilities where the states didn't have an approved program. It is probably a draftsman-3 I 4 ship problem.
5 And similarly, Section 2-A-6, which says it is in 6 the national interest that planning for energy facility siting 7 and need for power determinations be made consistent with 8 national energy priorities. That was in there originally 9 because it was a corollary feature to whatiwas then Section 10 111, which was a big DOE-assisted program for coordination 11 and aid to states.
12 MR. SHAPAR: Which was very controversial and was
- 13 14 15 attacked by Interior, particularly, and was'dropped for the first time from this version.
COMMISSIONER KENNEDY: I'm sor:i::-y, whichJ,one was 16 this?
17 MR. MALSCH: It's finding in Section 2-A-6, which 18 is in the middle of page 3.
19 On page 4, finding 8, about siting construction of 20 reactors being facilitated by the use of standardized nuclear 21 power reactor designs. That is actual:NRC-suggested language 22 in its comments to 0MB.
23 A finding that the national interest requires 24 reactors* be sited away from population centers has been delete Ace-Federal Reporters, Inc.
25 from this bill in accordance with an NRC-OMB comment.
7 Finding 9 on page --
2 COMMISSIONER BRADFORD: Which comment was that?
3 MR. MALSCH: This was a comment by NRC to the 4 effect that that ought to be deleted,:primarily because it 5 didn't serve any operative effect in the,rest of the bill.
6 COMMISSIONER BRADFORD: We,::made that comment on the 7 population centers?
8 MR. MALSCH: That's right. In our comments to 0MB.
9 MR. SHAPAR: Those are the only formal comments 10 I thihk that the Commission had ever sent over to 0MB.
11 COMMISSIONER BRADFORD: Other than our own draft of 12 the bill? ~
- 13 14 15 MR. MALSCH: Which came before then; that's right.
So when I talk about NRC comments, I am always referring to the October 26, '77 comments.
16 One thing that might be significant here is Finding 17 9 on page 4, which talks about the NRC continuing to exercise 18 its independent statutory responsibility to protect the public 19 health and safety and common defense and security.
20 Taking into account that there is no such thing as 21 absolute safety and that the costs of additional safety requir -
22 ments should be given considerations, and that adequate pro-23 tection of the public health and safety is a paramount consi-24 deration: This is very similar to language we have seen befor .
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25 COMMISSIONER KENNEDY: It says "the paramount."
8 MR. :MALSCH: The paramount consideration. In fact, 2 the word "paramount" was added as an NRC suggestion in the 0MB 3 comments.
4 What is interesting about here is a recognitiori0of 5 something that has been very controversial, and that is that 6 safety, the cost of additional safety requirements should be 7 given consideration. That's arguably something new, not before 8 seen in the Atomic Energy Act.
9 MR. SHAPAR: This reflects the discussions that this 10 Commission had on this very point before.
11 CHAIR:MAN HENDRIE: I think we worked over that 12 language way back in September, something like that.
13 Marty, back on item 8 under findings, there isn't an*.
14 difficulty with "site-specific environmental determinations,"
15 is there?
16 MR. :MALSCH: I don't think so.
17 CHAIR:MAN HENDRIE: There may be a difficulty with 18 ~'.general facility need determinations," since the states aren' 19 asked to elect to do that, but doesn't the language now saw 20 they will do it.
21 MR. :MALSCH: There is a problem because in later 22 sections of the statute, there is reference to something 23 called a !:'igeneric:~fuimre need for electric power," which is 24 supposed' to suffice for needer purposes at the site permit Ace-Federal Reporters, Inc.
25 stage. And apparently states are to do that as well as
9 provide specific facility need determinations at the construc-2 tion permit or combined permit and license stag.e.
3 I think the language here in 5 is a carryover from 4 pr~br versions of the bill.
5 The version of the bill now says that where states 6 don't have an approved program and don't elect to do the NEPA 7 reviews, then the NRC shall have exclusive authority as against 8 the states to make the NEPA determinations. That is kind of 9 silly because the states don't make NEPA determinations anyway.
10 So even where the states don't now have an approved 11 program, they would not be ousted of authority to do environ-12 mental acceptability evaluations or need for power evaluations.
- 13 14 15 As a matter of fact, the bill requires certificates of need even quite apart from the fact as to whether or not a state has an approved program.
16 CHAIRMAN HENDRIE: What fix would the language need?
17 What fix would need to be made to the language here?
18 MR. MALSCH: Well, the easiest thing wou~~ be to 19 just take 5',_and: 6::out'. That would be the simplest thing.
20 It could be made -- i t could be redrafted so as to be in 21 conformity with Section 1 * :---:- Ic,guess it is 95 -- which is the 22 NDEPA delegation provision.: But then it wouldn't sound very 23 forceful and you would wonder why Congress thought it suffi-24 ciently *::;sd!gnificant to put in the findings and purposes.
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25 MR. SHAPAR: And not have any operating sections
10 following.
2 MR. MALSCH: Right.
3 MR. SHAPAR: It is a floating finding without any 4 follow-up.
5 COMMISSIONER GILINSKY: Is the standardized 6 facility design ever defined?
7 MR. MALSCH: No, it is not defined.
8 The actual language in Finding 8, I think is -- it 9 is NRC-suggested language. - **
10 COMMISSIONER GILINSKY: One of the purposes of 11 the Act is to facilitate use ofcstandardized facility designs 12 for nuclear power reactors.
- 13 14 15 MR. MALSCH: I suppose you could ..;sayhthat Section 194, which is the section dealing with standardized design is sort of self-defining. It is anything that has been approv d 16 in a rulemaking or manufacturing ticense proceeding, under 17 this bill by definition because a standardized design.
18 In that sense, it is a shorthand way of referring to 19 designs approved under Section 194.
20 CHAifil.'.lAN HENDRIE: Okay. Onward.
21 MR. MALSCH: As I indicated, Section 111, which had 22 appeared in prior drafts of the bill, which is a DOE-assisted 23 program of funding states to come up with facility planning, 24 has:,now been deleted. It turned out to be very controversial.
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25 We had had no comments on that provision except to
11 jeri note to 0MB that; however. it was drafted it should be d!l'.'afted 2 so as to make it clear there was no federal preemption. ;of 3 state planning. But as I say that section has now been 4 dropped, so the issue is moot.
5 COMMISSIONER BRADFORD: For the moment. I gather 6 the dropping is not permanent.
7 MR. MALSCH: For the moment.
8 MR. MALSCH: There was talk within the last month or 9 so about DOE drafting up a separate bill to address this.
10 I don't know what the status of those drafting efforts are.
11 MR. SHAPAR: In fact, they said during filiscussions 12 that they did plan*, to draft a separate bill. I haVl".:n I t heard
- 13 14 15 any word that they have dropped that idea, but I haven't heard of any progress about it either.
COMMISSIONER BRADFORD: Other than the fact it was 16 going to be submitted in April.
17 MR~ SHAPAR: No time limit that I know of in 18 connection with this bill has ever been made.
19 MR. STOIBER: They have reserved a section for it, 20 too; you notice they go to 112.
21 MR. MALSCH: We already have a 111 in the act now.
22 Does~ the Nonproliferation Act ~dd a section 111. I think it 23 does.
24 Well, in any event.
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25 Also, I think DOE planned, at least in the later
12 jeri stages of planning, to have a section that would deal not only 2 with nuclear facility siting, but also with energy facility 3 siting, So in that respect what DOE had in mind might have 4 gone beyond the original concepts of this bill to other kinds 5 of energy facilities.
6 Section 1 deals with advance planning and early 7 notice. It is probably for the most part new authority for 8 the Commission except for the provisions regarding advance 9 notice in "B" are probably not new authority and the partici:"
10 pation in the DOE programs is not that clear but that is 11 probably not new authority either.
12 MR. SHAPAR: This language, with the exception that 13 Marty mentioned, is very close to the bills that the Commissio 14 and the AEC proposed before.
MR. MALSCH: In prior comments NRC indicated that it 16 had no particular problem with this~ provision:so long as 17 it was clear that long-range planning would not turn out to 18 limit the scope of issues in any later NRC proceedings. In 19 fact, some language in the earlier version to that effect was 20 deleted at NRC suggestion.
I I,
21 112-A is simply a provision which authorizes the I
22 Commission to encourage people who are coming in for permits 23 and licenses to engage in ope~, advanced planning for the 24 facilit,fes and sites.
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25 CHAIRMAN HENDRIE: When you read page 6, lines 8,
13 jeri 9 and 10, that comment about prioritd.:es for reviewing Licenses 2 and permits has been in there for a long time. I still don't 3 read it as compelling anything ..11pon us that we might not want 4 to do, do you?
5 MR. MALSCH: It says we shall established guidelines 6 for participation in the planning, and shall establish,(
7 priorities. So if we had any doubts about maybe not doing 8 anything, I think this language would cause us.a problem, or 9 it could.
10 MR. SHAPAR: I think we must do something.
11 MR. MALSCH: Do something; it doesnvt say precisely 12 what it is, we we have an awful lot of leeway.
13 COMMISSIONER GILINSKY: Something like what?
14 MR. MALSCH: Well, the most obvious thing, I suppose,
]$. would be to,.in dases of a conflict in Staff resources, to giv 16 priority to those applications that have been through some 17 sort of advance planning process.
18 COMMISSIONER GILINSKY: What would that mean?
19 MR. MALSCH: Treat them first.
20 COMMISSIONER GILINSKY: I mean what would the 21 advance planning process involve?
22 MR. MALSCH: Well, the bill is not specific.
23 Presumably it would mean a state system of ..!early advance 24 notice, public comment on statewide plans, utility plans:,
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25 periodic µp~ating by the utility of need for power forecasts
14 DB-1 and sites,and things of that sort.
2 COMMISSIONER GILINSKY: Let's see, this is utility I
- 3 4
5 planning, isn't it?
MR. MALSCH: That is right.
COMMISSIONER GILINSKY: Rather than state planning.
6 It is making use of state planning.
7 MR. MALSCH: That's right. Presumably you would have 8 utility planning dovetail in with the state planning. Otherwis 9 the purpose wouldn't be completely fulfilled.
10 COMMISSIOINER GILINSKY: Aren't the utilities considere 11 to be doing advance p;anning now, or is this something that 12 goes beyond what is being done now?
13 MR. MALSCH: I think they are all doing advance 14 planning. I don't think it is anywhere near as clear that that 15 advance planning is as open to public participation as this 16 section contemplates.
17 MR. SHAPAR: This paqrticular provision has been 18 in earlier bills proposed by AEC and NRC and always it was 19 very controversial with the indust~y. The industry always 20 unloaded on this particular provision. I have not seen the 21 comment on the current bills that have gone through the same 22 kind of criticism that has occurred in the past. They were 23 very sensitive to this provision.
24 COMMISSIONER GILINSKY: Do we have a pretty clear notion Ace-Federal Reporters, Inc.
25 of what this implies?
MR. SHAPAR: It is very open-ended discretion for the
15 DB 2 Commission. There is no:legislative history up to riow that 2 would indicate exactly what Congress has in mind. So it 3 would be up to the Commission to work out in rule-m.king.
4 COMMISSIONER GILINSKY: This ;,is being proposed to 5 the Congress?
6 MR. SHAPAR: That's right.
7 COMMISSIONER GILINSKY: So it isn't what Congress has 8 in mind, it is what somebody else had in mind.
9 MR. SHAPAR: No, but the Administration is making lO legi~lative history all along. Itis pretty open-ended discretion 11 the way it is worded now.
12 MR. MALSCH: Also I believe this language was in 13 prior Joint Committee bills in the 93rd or 92nd Congress.
14 So it has* history associated with it at least of being in the 15 bill, although not necessarily history as to what exactly 16 was meant by it.
17 MR. SHAPAR: It was in the last bill sent over by 18 the NRC.
19 CHAIRMAN HENDRIE: Generated here or --
20 MR. SHAPAR: Generated here.
21 CHAIRMAN HENDRIE:, We have to run an ad in the 22 company paper saying anybody old enough to remember those 23 days, who remembers what we had in mind, report at headquarters 24 to be questioned.
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25 MR. MALSCH: Actually it wasn't originated by NRC,
16 DB3 it was put in the bill a number of years ago as a result of a 2 Joint Committee staff markup. That is where it appeared.
3 CHAIRMAN HENDRIE: And we just kept regurgitating it.
4 MR. MALSCH: No one could think of anything real bad 5 about it, so it st~yed in there.
6 MR. SHAPAR:
I The actual father of that language is 7 James Ramey. It was in the NRC bill, and it was in 8 prior AEC bills.
9 COMMISSIONER BRADFORD: Was it when Ramey was a lO Joint Committee staff member or an AEC Commissioner?
11 MR. SHAPAR: This was in his tenure as~ Joint 12 ommittee staff member. He had set up a coordinating 13 committee of environmentalists, and this was inteded, at least 14 in his mind, to be in the direction of the environmental review.
15 CHAIRMAN HENDRIE: Well, I don't know.
16 MR. MALSCH: Okay. 112 (b) is simply a provision that 17 provides for early advance notice of filing of certain kinds 18 of applications.
19 The laDguage on page 7, lin~s 7 through 10, about 20 broad newspaper publication for approval of standardized 21 facility designs was added at"the request of NRC. ( c) 22 talks about the Commission participating in the adequacy of 23 reliability programs of DOE. It used to be the Federal Power 24 Commission. In our prior comments we had no nproblem with Ace-Federal Reporters, Inc.
25 this except that the earlier version would have required us to
17 DB4 make information obtained from us as a result of our 2 participation in the program available to the public.
3 We suggested eitehr that be deleted or impose the 4 same obligation to make material*poublic on DOE, which actually 5 ran the program.
6 The problem was that since it really is not our 7 program~ if there is to be an obligation to make material 8 public, it ought to be on both NRC and DOE, not just on NRC.
9 The language imposing an obligation to make material 10 public has been deleted from this ver~ion of the bill, so the 11 issue has disappeared.
12 COJ'.1MISSIONER GILINSKY: What would be the nature 13 of our participation?
14 MR. MALSCH: I think we would be participating 15 as an observer capacity, primarily to find out information about 16 long range plans and forecasting.
17 COMMISSIONER KENNEDY: What is the Department of Energy lS required to do under Section 202 (a) of the Federal Power 19 Act?
20 MR. MALSCH: They are not required to do much of 21 anything, it is a general provision whereby they have organized 22 reliilblity regions and particip.te in general reliability 23 discussions. I don't think they have any formal authority to 24 promulgate reliability or adequacy standards under that Ace-Federal Reporters, Inc.
25 section. I tis an information gathering kind of thing. That
18 5 was the original reason for including NRC in it.
We would profit in terms of information coming to us about 2
utility plans. And in that respect it was supposed to dovetail 3
in with the 9ther provisions of the bill which talked about 4
long range planning, and advance notice. It is sort of 5
an add-on.
6 Section 185 is an amended version of present section 7
185. The first thing of interest appears on the bottom of page 8
7, eginning on line 22, and there we see for the first time 9
a requirement that the Commission not issue a construction 10 permit for a thermal nuetron power generation facility unless 11 the st.te provides a certification of need for the facility.
12 And there are provisions on page 8 which detail exactliy how the 13 state is to give that kind of certification.
14 In particular, it must be an application by the 15 utility, which will include a detailed statement of the reasons 16 for the need for power and conservation alternatives, and 17 there is a requirement that a certain kind of hearing be 18 held. This is something new.
19 In our prior comments we expressed a couple of 20 detailed comments on this in our comments to 0MB. First we 21 commented that the provision should be confined to nuclear 22 power reactors. The original version had language which 23 made this restriction apply to research reactors and other 24 Ace-Federal Reporters, Inc.
things. That has been cleaned up. And the NRC comment has been 25
19 6 .. ccommodated. We ha.d reservations about TVA and state 2 utilities possibly self-certifying, and questioned whether that 3 was a good idea. DOE hasn't amended the language to take 4 care of that problem, but the section analysis indicates that 5 the bill contemplates the certification would only come from 6 some public authority, and that state utility or something like 7
TVA could not issue its own certification.
8 In that case the state would have to constitute some 9 public authority to grant the certification.
10 'MR. SHAPER.-.
But they did not take our comment to 11 change the statutory language?
12 MR. MALSCH: No.
- 13 14 15 COMMISSIONER KENNEDY:
MR. SHAPAR:
.rt is the same, isn't it?
Not precisely the same.
COMMISSIONER KENNEDY: But essentially. For all 16 pr.i.ctica.l purposes.
17 MR. STOIBER: It depends on what other material 18 comes up inthe legislitive history. If somebody says something 19 or the House puts it in its report, you have confusion.
20 MR. MALSCH: Also the provision on lines 6 through 8, 21 page 8, to the effect that no public authority is authorized 22 to issue the certific .. tion when the requirements is waived 23 WilS added a.t the NRC suggestion. It also sugqested a provision 24 that would have permitted the public authority to voluntarily Ace-Federal Reporters, Inc.
25 waive certification. That suggestion was not adopted.
20 7 MR. SHAPER: That was based on our experience with the 2 w.. ter Act.
3 MR. MALSCH: The Waer Act has a requirement we get a 4 certification of -compliance with Federal and state water 5 pollution standards. And that has a similar waiver provision 6
in it that hils.proved very useful.
7 COMMISSIONER GILINSKY: COuld I go back to the first 8 sentence in this section? Is that the same as --
9 MR. MALSCH: That is in the present Act. Identical.
10 CHAIRMAN HENDRIE: Let's see. I see in making the 11 need determinations there is now a hearing under p~ocedures 12 comparable to those that would be employed under the National 13 Environmental.~ Policy Act. That repeats at subsequent 14 place where --
15 MR. MALSCH: Well, the Sil.me thing appears where there 16 is a similar requirement for certification for combined l? permit and license.
18 It also appears in connection with the NEPA delegation 19 program, and was added as a corrollary to the concept that was 20 added to the bill in the later drafting stages about hybrid 21 hearings on NEPA issues.
22 COMMISSIONER BRADFORD: What does it mean as a 23 practic .. l matter? If we were enforcing that section today, 24 whilt would the resultant hearing look like?
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25 MR. MALSCH: Well, that is not terrifu1y clear.
21 8 This doesn't specify what the hearing is. The later 2 section in the bill does.
3 Let me see if I can find it. It is the NEPA delegation 4 section. Itis on page 14, Section 189. That specifies 5 wh.t kind of NEPA hearings the Commission is supposed to hold 6 .nd bee.use of the comparable language, the states are 7 required to conduct something that is comparable.
8 There are some problems with that. for one thing, 9 it says "Hearings and decisions shall be in accordance with lO Section 553 of Title V of the U.S. Code. Well, that doesn't 11 require .ny hearing, but just written comment. So right off 12 you have an awkward drafting problem, with the language talking 13 about hearings, yet the section referenced not requiring any 14 hearings at all.
15 MR. SHAPER: That is true of 189(a) of our own Act 16 though, where hearings used to imply both rule-making and 17 the adjudicatory process.
18 MR. MALSCH: Right, except this is clearly talking 19 about some adjudicatory process. Itis a problem with drafting.
20 Beyond th~t, it is not clear what is meant by these kind 21 of he.rings, because some place DOE in its analysis of the bill I
22 indicated th.t~--well, it says here that you can hold~ciore 23 formal he.rings when necessary to resolve particular factual 24 or leg.l questions. DOE said in its analysis ~that a conflict Ace-Federal Reporters, Inc.
25 in expert opinion was not a "particular factual or legal question."
22 9 For all practical purposes, that is about all our 2 proceedings are about, conflicts in expert opinion. So once 3 you decide that is a particular factual or legal question 4 COMMISSIONER BRADFORD: Where does DOE say that?
5 MR. MALSCH: They say that some place in the analysis.
6 MR. SHAPER: They gave a section by section analysis 7
when they had their press conference putting out the bill.
8 COMMISSIONER BRADFORD: I think the understanding 9 under which I commented on this bill all a.long was that this 10 section would at least in theory -- this is the one on page 11 14 -- would permit us to continue to hold the same kind of 12 NEPA hearings we h.ve always held.
13 MR. MALSCH: I don't know that that is clear. It 14 is probably true. But it does say "shall be in accordance 15 with section 553."
16 COMMISSIONER BRADFORD: And then the language after 17 that. I may have been wrong, but I had been assuming that the 18 laµguage after that would have permitted the C0mmission to 19 continue to hold the type of he.rings it holds now, where 20 it thought that was necessary.
21 I just assumed that that section didn't necessarily 22 cange anything.
23 MR. MALSCH: Thiilt is probably true, with the caviat 24 th.t the waters were somewhat muddied :.by the statement of Ace-Federal Reporters, Inc.
25 DOE.
23 10 COMMISSIONER BRADFORD: That is the point that I am coming to. If DOE feels differently, then I have a rather 2
different feeling about this whole section and its thrust on 3
hearings.
4 MR. SHAPER: I think there is a broader question~
5 perhaps, related to how do you justify a different kind of 6
hearing for NEPA issues than you do on health and safety issues.
7 I think that is really the question you need to confront.
8 COMMISSIONER BRADFORD: Yes. I assume the Commission, 9
in confronting that question in the past, has concluded that 10 you don't.
11 MR. SHAPER: Except the Commission never saw this 12 particular provision.
13
.COMMISSIONER:c'BRADFORD: No, I a.m leaving this particula 14 provision completely aside. I assume the Commission, in 15 constructing the format for its NEPA hearings, concluded they 16 should be the same as the heal th and .~silfety hearings.
17 MR. MALSCH: Except I don't think we had much choice, 18 because with NEPA worded as it is, once you do an impaca.t 19 statement, the impact statement has to be considered in what 20 would be the ordinary Commission decision process. And since 21 the ordinary Commission decision process called for formal 22 hearings, I don't think we had ~::much choic.e but to consider the 23 impact statement.
24 Ace-Federal Reporters, Inc.
MR. SHAPER: We had no choice after Calvert Cliffs, 25
24 11 in my opinion, because I think Calvert Cliffs made that' 2 point very strongly.
3 COMMISSIONER BRADFORD: If the Commission did not hold 4 formal hearings on health and safety issues, then it would 5 not have had 6 MR. MALSCH: That is correct, they would not have 7
done it.
8 COMMISSIONER BRADFORD: So agencies*that have NEPA 9 responsibilities, but who don't use formal hearings for their 10 other responsibilities, don't have to use formal hearings?
11 MR. SHAPER: That's right. The common cliche 12 is that NEPA itself requires no hearings. In one sense that 13 is true, and in another sense it is not true, because if 14 they hold hearings otherwise, NEPA requires them to use the 15 same process for the NEPA issues.
16 MR. MALSCH: There is another problem with this and 17 that is this carves out a special exception for hearings and 18 decisions on NEPA issues, yet there are environmental issues 19 that fall under both NEPA and this Act, and other environmental 20 statutes.
21 So the fact that something is a hearing *and decision 22 on an NEPA issue doesn't mean, taking this language literally, 23 that we might not have to hold a formal hearing on it because 24 the issue could arise under another Federal statute.
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25 Throughout this bill in various places protection of th
25 12 environment is added as -a substantive Atomic Energy Act 2
standard. Probably almost any issue you could raise under 3
NEPA you could raise under that standard. If that is the case, it is kind of silly to talk about a special decision 5
procedure on NEPA issues, when the same issues also fall under 6
the umbrella of another statute.
7 COMMISSIONER BRADFORD: Maybe you said it and I 8
didn't pick it up, or maybe you haven't said it yet, but what 9
would the hearing requirement be under those other statutes?
10 MR. MALSCH: Generally that is not specified at 11 all. For example, the National Historic Preservation Act, 12 which doesn't specify any hearing, but requires agencies to 13 take into account imp.ct on historic places.
14 What we have done traditionally is treat that like a 15 NEPA issue, treat it as an ordinary matter in the he.ring and 16 decision process, which therefore involve formal hearings and 17 formal decisions.
18 We have never attempted to carve out special kinds 19 of procedures for diferent statues. We just lumped them into 20 one. It was a lot simpler.
21 CHAIRMAN HENDRIE: Section,, 553 covers comment sorts of 22 things. What are 554, 556, and 557?
23 MR. SHAPER: Those are the adjudicatory requirements 24 Ace-Federal Reporters, Inc.
ofthe APA.
25 MR. MALSCH: That is on7.the-record formal hearings.
26 13 MR. SHAPER: Every time you see those three sections, 2 it means it is an adjudicatory hearing, such as we now conduct.
3 CHAIRMAN HENDRIE: Is there an APA section which 4 talks about legislative format?
5 MR. SHAPER: No. APA divides processes into two, 6 rule-making and agjudication.
7 The APA by itself doesn't require adjudication, 8 but the basic statute will frequently tie into the APA by 9 saying it must be adjudicatory.
10 Once the basic statute says adjudicatory, then the 11 APA tells you what the procedures are.
12 Our statute in effect implicitly, though not 13 explicitly, requires an adjudicatory hearing. That requires I,
14 us to follow those three sectionsof the APA.
15 CHAIRMAN HENDRIE: The intent here of the drafters 16 was to mandate hybrid formats.
17 MR. MALSCH: Right. Sort of like GESMO.
18 CHAIRMAN HENDRIE: Eor the environmental hearings, 19 with a legislative base format and then deal with factual 20 matters in dispute on a cross-examination basis. Does this 21 language do that? That is, if that were the intent, does this 22 language do it ~ell or 23 MR. MALSCH: Well, it does it. I wouldn't say it does 24 it well. It probably does it.
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25 MR. SHAPER: I think it does it.
27 14 MR. MALSCH: The problem is referencing section 1
2 553, which does not apply to adjudicatory, and in this 3 context is an awkwardd statutory reference. But apart from 4 that, it is pretty clear what the intent is generally speaking.
5 MR. SHAPER: Are you saying that itrequires hybrid 6 he~rings, or that it authorizes hybrid hearings?
7 MR. MALSCH: I think literally it says "requires",
8 becil.use it says "shall be in accord*~, except only where 9 necessary to resolve factual or legal questions may it be 10 formal.
11 MR. SHAPER: I think it is ambiguous, that is 12 probably the better reading. But as a practical matter, I would 13 think that the Commission might have trouble with the Congress 14 if it went ahead and decided to use complete adjudicatory 15 hearings for the NEPA issues with this language. The legis-16 lative histor.\y I think will tellyou better, but I would 17 just keep that in mind, so if there is any~inclination on the 18 part of. the commission to go beyond what this language says, 19 then I think you ought to make an effort to straighten out the 20 language.
21 MR. MALSCH: Beyond that, you want to make clear 22 whatever flexibility the Commission had under this, the states 23 would also have, if they are going to be imposed with a 24 requirement to conduct comparable hearings.
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25 MR. SHAPER: I think the thinking bell:ind the language
28 15 is that NEPA by itself doesn't require any hearing at all.
2 Therefore, in view of that, one could argue there ought to be 3 some flexibility with respect to the NEPA hearing in 4 contrast to the other issues. I think that is the thinking 5 behind it.
6 COMMISSIONER BRADFORD: Marty, come back a moment 7 tothis point about DOE saying in their view this section would 8
not permit cross-examination in a situation where two expert 9 witnesses were giving conflicting opinions. You said it 10 would not permit. It would not even be within the Commission's 11 discretion to allow it?
12 MR. MALSCH: I don't think the comment was that 13 specific, you know, wasn't that clear. Basically what it 14 implied was that aconflict in opinion was not a factual or 15 legal.question, within the meaning of this particular provision.
16 COMMISSIONER GILINSKY: What would be a factual 17 question?
18 MR. MALSCH: Oh, like you know, when did the review 19 begin, who said what to who and when, those kind of thinqs.
20 COMMISSIONER BRADFORD: If two different experts 21 gave two different opinions about the effect of a power plant 22 discharge on striped bass, that would not, in DOE's reading, 23 of the term "factual" be a factual question?
24 MR. MALSCH: That seems to be what they-have said.
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25 COMMISSIONER KENNEDY: It would not be a factual issu?
29 16 MR. MALSCH: It would not be a factual issue, no.
2 Whether or not they would persis in that interpretation at 3 present, I don't know. It is just kind of stretching things a 4 little bit.
5 COMMISSIONER KENNEDY: In such a case, how would that 6 be treated?
7 MR. MALSCH: Presumably it would be treated in the 8
legislative type format, with written comment and a legis-9 lative type of hearing, but no opportunity to cross-examine 10 the experts as to why, given the same data base, they reached 11 different conclusions.
12 It is quite common in NRC hearings :.*today to have 13 experts reaching different conclusions based on the same 14 data. In fact, a large part of NRC hearings are devoted to 15 exploration of just those kind of issues.
16 If that interpretation were to prevail, that would be 17 a significant inroad on the type of hearings we now hold. In 18 effect it is in line with a point of view which prevailed for a 19 number of years ago aiboU:f.,_:NRC on-the-recrod hearings beinq 20 very unsuited for resolution of technical type of disputes 21 as opposed to factual disputes.
22 MR. SHAPER: The latest Ribicoff study, on the 23 Government Operations Committee, makes that point, too.
24 COMMISSIONER GILINSKY: What is the difference betwee Ace-Federal Reporters, Inc.
25 a technical dispute and a factual:_ dispute?
30 17 MR. MALSCH: The section as drawn --
2 COMMISSIONER BRADFORD: An obvious difference between 3
- technic.l f.ct and a afact.
4 MR. MALSCH: Cases in which the resolution or the 5 decision depends upon who did what to who and when, pure facts, 6 r.ther th.n depends on dust observ.tions.
7 COMMISSIONER GILINSKY: Why,: isn't the ef feet of 8 the plant on striped bass a fact?
9 MR. MALSCH: It is not a fact.::. because you don't 10 a.ctua.lly produce someone as a.witness who says*the impact is 11 going to be great, either because I am a striped bass, or I have 12 .ctually see11,)~ trillion striped bass killed. There are 13 always predictions and extrapolations and opinions.
14 CHAIRMAN HENDRIE: THey are always trying to 15 expand the scope. Now we are going to hear from the striped 16 bass.
17 MR. SHAPER: a. number of striped bass . rave been 18 trapped on cross-examin.tion though.
19 CHAIRMAN HENDRIE: I guess
(
if you got two guys up and 20 one of them wanted to s.y in his judgment the correlation was 2 ,. adequately*conservative, and the other one wanted to say it 22 wasn't, I presume that would .fall under the technical dispute.
inerting 23 MR. SHAPER: The/question in Vermont Yankee might com 24 out on the* DOE thing as a fact.
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25 CHAIRMAN HENDRIE: I thought the factual basis was
31 18 pretty well established.
2 MR. SHAPER It seemed pretty clear to me, too.
3 CHAIRMAN HENDRIE: Of course we lost.
4 MR. SHAPER: That was because of the witness.
5 CHAIRMAN HENDRIE: Yes. Other discussion here?
.6 MR. MALSCH: _kay, back to page 8, section 185.
7 There is a basic problem with this concept of a certification 8 of need as a prerequisite to issueing permit or as is 9 required in 185(b) on page 9, combined permit and license. And 10 that is that the provision provides that the certification 11 shall constitute a definitive determination of the need for the 12 power to be produced by the facilitt for the purposes of any 13 other provision of Federal law.
14 There is a -proble there, and that is that need 15 for the plant is also covered by the later. NEPA delegation 16 The problem arises because section, which is Section 195.
17 this would appear to say that* state will have a definitive 18 say on need for the plant, even though it does not have 19 an approved NEPA program, .and even though the process whereby 20 it reached that decision did not comply with NEPA, which would 21 be the case if it were to have an approved program.
22 CHAIRMAN HENDRIE: But isn't the process by which 23 it reaches that determination on need, whether it is an 24 approved program or not, controlled by, after holding a hearing Ace-Federal Reporters, Inc.
25 under procedures comparable to those?
32 19 MR. MALSCH: Yes. That issue is the sa.me, bee.use 2 whether it is a NEPA program or this, it is the same hearing requirement. The problem would arise if, for example, someone 3
4 ra.ised a question for example does the state have to circulate 5 a draft conclusion about need for the plant prior to making a 6
determination under this section.
7 Under the NEPA program, it iliight have to, because 8
it h .. s to comply with NEPA, and that could incluq_e,the 9
requirement that you circulate a draft, although that is 10 not precisely clear.
11 Here there is no such requirement. SO z~ou have 12 two avenues open to the states so far to achieve the same 13 objective in getting a determin .. tive role on the need for power 14 questions, the certification provision under 185, and the NEPA 15 progr ..m provisions under Section 195.
16 The two don't ex .. ctly fit.
17 MR. SHAPER: And a third one as well.
18 MR. MALSCH: THere will be a third one we will get 19 into later, and that is the res adjudicat .. provision, which 20 also enables the state TIO make. decision beyond or outside 21 of the context of a.n approved NEPA program. We will get to 22 that in a minute when we come to Section 189.
23 Under this provision, the state has~ to defend 24 its determination in a certification hearing in the Federal Ace-Federal Reporters, Inc.
25 court, and .. ny action authorized under NEPA. It is a little
33 20 unclear as to which Federal court the section is talking 2 about, whether the district court or the court of appeals.
3 MR. SHAPER: Probably the district court. It 4 perhaps should be the other one.
5 MR. MALSCH: Yes, otherwise you end up with a strange 6 situation, with the review proceedings pending on the same 7
license in both the court of appeals and district court. That 8 could be kind of awkward.
9 COMMISSIONER BRADFORD: In an earlier section it says lO "f~no~public authority is authorized to issue such certification, 11 the requriement for certification shall be waived.
12 That means, does it, if a state doesn't authorize
- 13 14 15 an authority to make certification, we are not saying the NRC or DOE or anyone else makes the certification?
saying there won't be one?
We are just 16 MR. MALSCH: wouldn't be one. That is the way I 17 read it.
18 COMMISSIONER BRADFORD: And the facility will be 19 deemed to be necessary.
20 MR. MALSCH: -No, becuase NRC still has to make its 21 NEPA determination. And then the issue would be controlled by 22 the NEPA delegation section.
23 CHAIRMAN HENDRIE: It falls ba:ck to sort of where it 24 is now.
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25 COMMISSIONER BRADFORD: That is clear, is it? It
34 21 does say the requirement for certification shall be waived.
2 You are re.ding that to mean a requirement for certification 3 pursuant to this particular section?
4 MR. MALSCH: That's riqht. I don't read it as 5 saying for example that if the utility has a.state law require-6 ment to get it certificilte, that that is waived. That would be 7 treated as a separate state requirement unaffected by this.
8 Although I think as a practical matter, if there 9 is such a requirement in the state, if that requirement is 10 Siltisfied, it would meet the requirements of this Act. I think 11 that was probably what DOE' s intent was.
12 The next sectionof interest is 195(b), on paqe 9, 13 which gives new authority to the Commission to issue combined 14 construction permits and operating licenses, where the applicati n 15 contains sufficient information.
16 Under this section the Commission can issue these 17 combined nlicenses only for thermal neutron power generation 18 facilities. There is a section, section 189, a mandatory 19 he.ring requirement before the Commission can issue one of 20 these combined permits and licenses, and a.,, later opportunity 21 for hearing prior to facility operation on whether, as a 22 result of significant new information or a signifiant 23 new issue or violations of some Commission requirements, there 24 should be some modification in the plant, or other action Ace-Federal Reporters, Inc.
25 taken that will provide substantial additional protection.
35 22 In our comments to 0MB we had expressed no 2 problems with the basic concept. We didn't have any *particular 3 detailed comments that were taken up- in this DOE draft.
4 We did have* coµple of comments that weren't accommodated.
5 In particular, we wanted the combined permit .nd license concept 6 extended to iill facilities except DOE demonstration plants, 7 and not just thermal neutron power generation facilities.
8 We wanted in here a finding that the Commission would be 9 required to make prior to operattion hat paralleled the he.ring 10 requiement in Section 189, namely, a finding that there was 11 no significant new information or violation that would cause 12 us to modify the plant or take other appropri.te action.
13 MR. SHAPER: I think it is significant that although.-.
14 the bill would relax the mandatory hearing requirements, the 15 CP would impose one '.for ~he co~binedj CP and OL. This particular i *,-- l - - - - - - - -- --- ---'
16 provision came rather late in the drafting of the bill, and I 17 don't think the Commission ever had a chance to focus 18 on this provision.
19 COMMISSIONER KENNEDY: I thought we had some discussion 20 of that and generally felt that a hearing ought to be required 21 for some such combination. Thatis my recollection.
22 COMMISSIONER BRADFORD: When did this section come in?
23 MR. SHAPER: Late in the process. You,.mean the 24 requirement for a mandatory hearing, even though no one Ace-Federal Reporters, Inc.
25 requests one?
36 23 COMMISSIONER. BRADFORD: Yes.
2 MR. SHAPER: It was late in the drafting process.
3 COMMISSIONER BRADFORD: You are saying the section 4 itself was not here?
5 COMMISSIONER KENNEDY: Yes. My recollection is we 6 had discussed this section on more thiln,one occ-.sion.
7 MR. MALSCH: This is pretty much the same as the 8 version we saw in October. What has been changed substantially 9 is 189, the whole hearing section, that has been reorganized 10 and redrafted.
11 CHAIRMAN HENDRIE: The language in here, at the 12 bottom of page 10, and top of page 11, is: "Prior to the 13 commencement of operQtion, the Commission shall find that the 14 facility has. been constructed and will operate in conformity 15 with the combined construction permit and operating license, 16 the provisions of this Act, and the rules ilnd regulations," and 17 so on~
18 What is the difference then from the Commission's 19 comment about making a finding?
20 MR. MALSCH: We had commented that there ought to 21 be a requirement in here for a specific finding by the Commissio 22 prior to operation. If there are no significant new issues 23 or is no significant new information or no significant violation 24 that would cuase us to modify the plant design or take other Ace-Federal Reporters, Inc.
25 action., if those circumstances exist under this Act, there
37 24 may be a hearing in the pre-operation stage. Our comment 2 was if *that kind of thing triggers a hearing, there ought to be 3 a requirement that the Commission make a finding on it. That 4 suggestid>n.
- was not accommodated.
5 As a practical matter, if the Commission staff is 6 to be in a position to make a recommendation whether there ought 7 to be a hearing, it is going to have to make a finding along 8 those -lines anyway. So it is probably not important.
9 MR. SHAPER: But we haven't heard any good reason 10 why they haven't accommodated our comment either.
11 CHAIRMAN HENDRIE: Okay.
12 MR. MALSCH: The next section is 185(c), page 11.
13 .T.his .. is simply an embodiment of our present tWA regulations.
I 14 Thre are some minor changes to accommodate the NEPA delegation 15 section in this bill. We had expressed no problems with~it.
16 In fact, the language has been modified to make it clear, as 17 was not clear in the October draft, that it isn't sufficient 18 that there .be an impact statement, you also must find that 19 the impact statement is adequate and make findings on a.11 NEPA 20 issues.
21 MR. SHAPER: I think one of the key points here, we 22 never had explicit statutory authority for our sanctioning 23 process for LWAs. We think it is implicit in the Act,we 24 think it would be sustained, but it has never been explicitly Ace-Federal Reporters, Inc.
25 sanctioned in our statute. It has never been attacked,either.
38 25 MR. MALSCH: We had suggested here in our October 2 comments tbat just as .there had to be a certificate of need 3 for the plant before we could issue a. permit or combined permit 4 and license, there should also be a certificate need 5 required be.forewe could issue an LWA.
6 We had a similar comment on the later provision 7 which would authorize automatic commencement of construction 8 on a pre-approved site. We also suggested that there there 9 ought to be a certificate of need before construction could 10 commence.
11 MR. SHAPER: Those are both Commissioner Bradford's 12 points, I think.
- 13 14 15 version.
MR. MALSCH: Those are not accommodated in ::.this Although it requires the NEPA review be completed 16 and that review would presumably include a facility need 17 determination. Something which is, however, not the case 18 with the automatic commencement of construction on a. pre7 19 approved site.
20 Page 12, lines 3 and 4, there is a provision 21 that says: *"Such activities shall be conducted at the risk 22 of the applicant and shall be subject to termination or 23 modification by the Commission at any time."
24 This doesn't cause a problem, except the section analysis Ace-Federal Reporters, Inc.
25 indicates that this applies not only to safety review, but
39 26 to the environmental review. Tn our comments to 0MB we 2 expressed concern that the version as-it was then worded might 3 overrule the Commission's Seabrook decision on sunk costs, 4 a decision which said in effect that as the utility expends 5 money, and commitments of resources build up, that that could 6 indeed have a role in the decision.
7 When-considered along with the section-by-section 8
analysis that DOE prepared, it would ovefrrule Seabrook, 9
or probably overule. Seabrook and say in these situations:some 10 costs can influence the later decision.
11 CHAIRMAN HENDRIE: Can or can't?
12 MR~ SHAPER: Can't. And that is a significant point 13 for the Commission. to consider, I think.
14 MR. MALSCH: Next comes the hearing section, and that 15 is fairly complicated. What it comes down to is this_: This 16 is an amended section 189(a). There is still a requirement for 17 formal, that is to say, on-the-record adjudicatory hearings in 18 licensing cases, except export cases, except there is a new
\
19 provision we discussed a minute ago about hybrid hearings on 20 -NEPA issues, and on the particular kinds of findings which the 21 Commission has to make before it can issue interim licenses 22 and amendments, that is to say a finding- *of urgent public need 23 or emergencyin the case of licenses or a finding of public 24 interest in the case of an amendment. Those hearings can be Ace-Federal Reporters, Inc.
25 informal or formal, depending upon how the Commission would choo e.
40 27 There is a requrement for mandatory hearings on 2 combined permits and licenses on early site permits and on 3 standardized design approvals. Rule-making hearings, apart 4 from-rule-making hearings and approving standardized designs, 5 would still be informa-1 if the Commission wished to hold them 6 .tall~ In fact, the statute specifically keys into APA 7 Section 4, which is simply notice and comment rule-making as 8
the norm in the case of Commission rule-making proceedings.
9 _Th~~~-- ar~_;.new notice requirements. Generally 10 speaking, the notice requirements are 180 days advance notice 11 for major applications, and 30 days advance notice for 12 -amendments.
13 The present standard in the Act for doing without 14 the advance 30 day notice for amendments to operating licenses 15 and construction permits has been changed. The present 16 statute says we can dispense with such advance notice, where 17 there are involved no significant hazards considerations.
18 Instead the language now talks about no significant additional 19 risks to the public health and safety.
20 I think this shifts the focus in those cases from 21 the degree of controversy involved, ~iaway from that to the 22 amount of additional risk involved. And that provision in 23 particular was added at NRC's suggestion.
24 There is an expanded res adjudicata provision Ace-Federal Reporters, Inc.
25 COMMISSIONER GILINSKY: Would you go over that again?
41 28 MR. MALSCH: The present statute says there should 2 be 3 0 days advance notice for amendments to constructio:ri:r:permi t 3 and operating licenses, except the Commission can dispense with 4 the 30 days advance notice when it finds there are no significan 5 hazards considerations.
6 This modifies that and says .instead that we can dispes 7 with that notice where there are no significant additional 8 risks to the public health and safety.
9 COMMISSIONER GILINSKY: How is that -different from 10 significant hazards?
11 MR. MALSCH: The significant hazards consideration 12 finding tends to get influenced by the amount of controversy 13 and effort devoted.to the review.
14 CHAIRMAN HENDRIE: I have been pushing for this for 15 more yea.rs than I -can remember. The problem always was that 16 that hazards language for amendments introduced new language.
17 You know, if you go back and talk about changes in th~ risk 18 _to the public health and safety, you are with the classical 19 language of the reguilations, and people seem to have a 20 better instinct what to do wit that. When you get to talking 21 a.bout hazards, just b-cause it was a d~fferent terminology, 22 there got to be peculiar, . in my view, peculiar standards 23 that got built in. I think it is a good thing to get back 24 to that.
Ace-Federal Reporters, Inc.
25 MR. MALSCH: One of the awkward things about the
42 DB29 present standard ,*is that you get let's say a. safety evaluation 2 for review, which supported the conclusion that there were 3 no significant hazards considerations. Then the staff devotes 4 100 manhours to the .sa-fety evaluation. You ~ay My God, there 5 are no significant hazards considerations, how did you spend 100 6 hours reviewing it.
7 The language tends to make the waters murky and 8 focus on the effort and controversy as opposed to substantive 9 changes in public health and safety or substantive changes in 10 design.
11 MR. CASE: I read them as Marty has. As presently 12 worded, and interpreted, it is a very difficult concept 13 for the technical reviewers to understand. They tend, as 14 Marty indicated, to measure the difference in risk with a 15 change and-without a change. That they can understand and 16 converse well on.
17 COMMISSIONER KENNEDY: Risk to public health and 18 safety.
19 MR. CASE: Yes. But whether it involved a significant 20 question, a big question or a small question or an intermediate 21 question, they don't understand that. They know what the 22 result is.
23 COMMISSIONER GILINSKY: So this would catch less 24 items than the "no significant hazards"?
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25 MR. CASE: I think it probably would, yes.
43 30 COMMISSIONER GILINSKY: That is the point you are 2 making?
3 MR. MALSCH: Not so much that, it would make the 4 process more. clear and decisions more understandable and 5 eilsier to milke.
6 CHAIRMAN HENDRIE: I think~.i t would reduce the 7 number of items, but by virtue of the fact that the present 8 language, .. keeps roiling up what seemed to me in the 9 days I was dealing ,di~=~tely ~~-~~ 1:_,_reall-y_ matters .thatvwere 10 almost extrilneous to the health and safety question.
11 MR. SHAPER: It would still be noticed by the way 12 if we keep our present rules. It would be post notice rather 13 than pre notice.
14 MR. MALSCH: There is an expanded res adjudicatil 15 provision WDich I will discuss in il little more detail later 16 when we get to it.
17 There would still be mandatory hearings, as I said, 18 on combined permits ilnd licenses, on site permits and 19 on standardized design approvals. There would no longer be 20 a mandatory hearing for a plain old simple construction permit.
21 COMMISSIONER KENNEDY: Is that likely to encour.ge 22 more people to move to look for a construction permit?
23 MR. MALSCH: I think as il matter of pr.ctice, so 24 few proceedings .re uncontested now, it probably doesn't make Ace-Federal Reporters, Inc.
25 too much d-fference whether you abolish the mandatory hearing
44 31 requirement or retain it. It will make a difference in iil. few cases, but even in those few cases the impact on resource 2
is not terribly great.
3 NRC had a bunch of detailed comments on this 4
particular provision. Language was added at our requeset to 5
make it clear that the mandatory hearings on site permits and 6
standardized designs. would be formal-* and not informal.. That 7
has been clarified.
8 The notice periods, the general 180 days advance 9
notice 1f.6r major license appoications and 30. days notice for 10 11 amendments, that is all per NRC suggestion.
As I indicated, the language changing the standard 12 for elimination of pre-notice of amendments, that was added 13 at NRC suggestion.. And the language mkaing it absolutely clear 14 that the ordinary NRC rule would be by notice and comment 15 rule-making, that language was added at NRC suggestion.
16 However, we were opposed to the use of state 17 proceedings in the res adjudicata provision to limit issues 18 19 before NRC ... Under the res .adjudicata provision in this bill, which appears in paragraphC on pages 17 and 18, NRC 20 hearings .re limited to issues as to which there was no prior 21 opportunity for hearing in a prior proceeding before the 22 Commission or a state, unless the pers6n ..:requesting
- the hearing 23 before the Commission makes a prima facie showing that there 24 Ace-Federal Reporters, Inc.
is significant new information relative to the issue and that 25
45 32 informationhas been discovered since the prior state 2 or NRC proceeding, and as a result of this new information, it 3 is likely the site or facility will not comply with the 4 Act or the Commission's regulations.
5 In earlier comments to 0MB, we had expressed reser-6 vations about including state proceedings under this, and we 7 gave as our reason the fact that state proceedings on NEPA 8 issues were a-lready covered by the NEPA delegation program 9 later in the bilL,and this was just confusing the issue.
10 In fabt it does, because ~ow a state wishing to have 11 an environmental or need decision by NRC can<accomplish that 12 objective quite apart from a NEPA approved program, by simply 13 having a proceeding and have the issue either raised or 14 have the opportunity to thave it-raised.
15 In either case, unless new information comes to light 16 the state decision is binding on NRC. There a.re a couple of 17 other problems with --
18 MR. SHAPAR: As a fall back, what the Commission might 19 want to consider. there is that it would only apply, if you 20 want it to apply, in all the state proceedings, to those that 21 are conducted in accordance with an NRC approved program.
22 I might add in DOE's hearings before I think it was 23 one of the House committees, I think Congressman Bingham of 24 New York questioned whether this was really a res adjuditata Ace-Federal Reporters, Inc.
25 provision at all, since I think he expressed the opinion that
46 33 res .djudicata only .pplied, .she knew it, to issues th.t 2 were in controversy and resolved, not the opportunity for 3 resolution and he gave the DOE witness a hard time.
4 COMMISSIONER GILINSKY: What does this mean? I
- 5 me.n *S a pr.ctica,l matter, suppose you hatd a stand.rdized 6 design approved, you c.n never raise safety questions relating 7 to that design aga-in, right?
8 MR. MALSCH: Unless you show significant new infor-9 mation.
10 COMMISSIONER GILINSKY: That was not ..v.ilable at the 11 time.
12 MR. MALSCH: At the prior proceeding.
- 13 14 15 CO MISSIONER KENNEDY:* Available or. provided?
MR. MALSCH: ~ has to be new information that has been discovered since the prior proceeding.
16 CHAIRMAN HENDRIE: But if you h.ve gone through a l? proceeding on a design, under the st.ndard design,* you would 18 presumably have a .*rule on the design, design 42-A is approved 19 as iL:stands, Commission rule number so and so. And that would 20 not be attackable, you wouldn't .rgue about.that then.
21 MR. SHAPER: Except on the basis Marty just mentioned.
22 COMMISSIONER KENNEDY: New information that has 23 been discovered since the rule was approved?
24 MR. MALSCH: That's right.
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25 c'HAIRMAN,. HENDRIE:
1 [n which case you would petition to have the rule~making re-opened or a rule-making --
47 3 34 MR. SHAPER: You could also attack it in the CP 2 or combined CP and OL proceeding ilS this bill is written.
3 MR.MALSCH: It is a funny thing, under the present 4 law we-can approve il design presumably by either rule or 5 m.. nufacturing license. If we ilpproved it by manufacturing 6 license, our present rules would call for a re-opening of safety 7 issues il.ddressed earlier, using somewhat different stilnd .. rds 8 ilS are in the bill here.
9 rf we ilpproved it by rule, you would have to show 10 either petition for il rule-making, which is outside of the 11 confines of a particular licensing case ilnd would be dealt with 12 separately, or if you Wilntea to raise the issue in a case, 13 you would hilve to show some special circumstances in that case, 14 which is more restrictive thiln what this does for rules.
15 THis would allow you to raise new issues aJ::mut'.pri6r. rules 16 in licensing cases.
17 So while this is pretty much the present pr .. ctice 18 for manufacturing license design approvals, it is more liberal 19 in terms of r .. ising issues in terms of ilpproving designs 20 by rule.
21 Now this is the controlling provision here in the bill 22 ilbout re-litig .. tion of issues that have been approved in a 23 prior site permit or rule-making proceeding or manufcturing 24 license proceeding. Unlike eilrlier versions of the bill there Ace-Federal Reporters, Inc.
25 is no special section here addressed to the scope of hearings,
48 35 or the scope of reviews in later construction permit 2 proceedings referencing pre-approved sites and designs.
3 This is all there is that deals with the Vil:1:ue of._ pite 4 permit proceeding or manufacturing license or rule-making 5 proceeding in terms of limiting the issues in later licensing 6
proceedings.
7 So this is a fairly significant feature of the bill.
8 MR. SHAPER: It is one of the most important provision 9 of the bill in terms .of the controversy and in terms of overall 10 impact on the process. SO I am suggesting that -it is something 11 the Commission will want to very carefully consider.
12 MR. MALSCH: On the one hand, it is telling people 13 who let's s .. y live nea-r a plant and would want to participate 14 fully.in the proceedings, that they have got to have some 15 foresight. and participate in the earlier site permit or design -
16 COMMISSIONER GILINSKY: How could they possibly know 17 about it?
18 MR. MALSCH: Well, that is a possible problem. On 19 the other hand, what it really does is ~:it treats a licensing 20 proceeding before the Commission as if it were a rule-making 21 proceeding. The.wame problem about people being on notice 22 say five ye.rs before, that a standardized design proceeding 23 going on in Washington could affect them five years later, 24 that applies .. cross the baord.
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25 COMMISSIONER GILINSKY':** Or,.any one of ten standardized design proceedings. Suppose you ..re sitting next to ..
49 36 pre-approved site, you have to get involved in every 2 standardized design proceedings if you want to cover all 3 your bases.
4 MR. MALSCH: I think one of the requirements for 5 a site permit application would be to indicate the type of 6 facility involved, so you probably know, I would think, which 7 proceeding to.go to, assuming you were knowledgable .s to how 8
the process worked.
9 CHAIRMAN HENDRIE: The plant definintion at the 10 early site permit stage will be broad enough so that any 11 current design, BW or PW or any vendor would come under it, 12 I am sure.
13 MR. MALSCH: The problem they would face_ is the same 14 problem they would face now under the Commission's present 15 rule, if faced with an approval of a design by rule or 16 approval of design by a manufacturing license. It is a 17 -problem you always have with legislative type actions, they 18 hil.ve broad applicability and ha.ve an impact way in the future 19 and people affected by them may not have the opportunity to 20 participate~*.in the earlier decisions.
21 MR. SHAPER: Under the Commission's present practice 22 and rules, any intervenor who comes into a case has to 23 accept the Commission's rules ,as written, and the only way 24 they*can attaGk-rules is the grounds mentioned before, and Ace-Federal Reporters, Inc.
25 that is that peculiar circumstances of the case make it unfair
50 37 or unjust to apply the rule as written, as a general 2 proposition.
3 COMMISSIONER GILINSKY: Except we haven't used the 4 rule that way yet.
5 MR. MALSCH: Oh, no, we use them all of the time that 6 way.
? COMMISSIONER GILINSKY: WHat I mean is we haven't gone 8 so far as to includeLthe complete design.
9 MR. MARSH: No, or even approve major components.
10 But every day intervenors come into proceedings and seek to 11 raise issues. that have been dealt with by rule and .re told 12 "We are sorry, unless,you can-show special circumstances, you 13 have go to petition for rule-making," despite the fact that 14 they may not have even been around when the rule was 15 adopted.
16 So if you look at this as sort of investing a*licensin l? proceeding with sort o f . rule-making character, it is not, 18 you know, outrageous. Itis something that happens all of the 19 time.
20 COMMISSIONER BRADFORD: The two are not mutually 21 exclusive.
22 COMMISSIONER GILINSKY: vie haven't, done it on that 23 scale. And it is analogous to what we do now in a lot of 24 contexts, but on a much more limited scale.
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25 MR. MALSCH: That's right. There was a problem
/I
51 DB38 with including in here state proceedings, as I said, for 2 example, that is a-way to get state environmental acceptability 3 or need decisions binding, apart fkom .n approved program.
4 Beyond that it is going to be awfully hard for the 5 Commission to decide in its proceedings which- issues were 6 raised or even could have been raised in
- variety of state 7 -proceedings. That could be a difficult issue for: NRC to 8 grapple with in a case, bee.use depending on how that comes 9 out, an issue may or may not be able to be raised in a 10 Commission proceeding.
11 MR. CASE. Also I think one has to focus l2 on how it might work in a traditional CP proceeding, 13 and on the new standardized design and pre-approved site 14 combination. If you are talking about the current CP ppoceeding 15 .11 you have the opportunity to litigate is the preliminary 16 design. Wheras in the OLD stage, you are talking about the 17 final des~gn. So it is going to be pretty hard, I think, for 18 someone to try to cut off an issue . t the OL .. stage, where 19 you dealing with the final design on the ground that they could 20 have litigated it at the CP stage. That will present 21 problems.
22 MR.SHAPER: They are litigated pretty freely right 23 now.
24 COMMISSIONER KENNEDY: Which is the sa.me kind of Ace-Federal Reporters, Inc.
25 problems you have now.
52
~-~ ------- ____ ------------------.----- - --
39 MR. MALSCH: One final ~ossible problem here is 2 that it isn't clear if this restricts the Commission from 3 raising an issue. If the Commission wished to reconsider an 4 earlier decision, and yet the facts were not changed, this 5 would arguably restrict the Commission.':s options, not just 6 intervenors But the language is not terribly clear on that.
7 COMMI.SSIONER GILINSKY: What is a prima facie showing 8 here?
9 MR. MALSCH: It means if everyone else chooses to lO do nothi-g, not file a shread of evidence, the case would 11 be enough to win, convincing on its face.
12 In effect it is going to require disclosure of almost 13 the complete case in advance, like a summary of direct 14 testimony, that type of thing will be required. That brings 15 us to the next provision --
16 COMMISSIONER KENNEDY: That is to avoid frivilous 17 intervention.
18 MR. MALSCH: That is right.
19 MR. SHAPER: That is to encourage meaningful inter-20 vention, I would say.
21 COMMISSIONER KENNEDY: Okay. That is even better.
22 MR. MALSCH: The major thrust of this section is to 23 get issues raised and resolved early, rather than later.
24 The next section which is 159 (a) (3) on page 18 Ace-Federal Reporters, Inc.
25 ahd~al~o- section 192 on pages 19 through 21, deal with so-called
53 40 interim licenses. ~n general they authorize the Commission 2
to issue ii.n interim operating license or permit interim 3
operation in a case where a combined permit and license have 4
been -issued .prior to completion of some of .the required 5
hearings. To issue such stn interim license or amendment, the 6
Commission must. find that there is a.n::ur,gent public need or 7
emergency, and it must also find iitll. of the hearings on _.,
8 significant site-specific public health and safety; and 9
common defense and security issues have been completed. The 10 requirements for interim amendments to operating licesnes 11 are a little less stringent. They would require a finding 12 by the Commission itself that issuance of an interim license 13 would be in the public interest.
14 A finding by either the Commission or its designee 15 that in all other respects the requirements of the Act, includin 16 a.11 substantial health and safety a.nd common defense and 17 security requirements have been met.
18 MR. SHAPER: This parallels pretty much what the 19 Commission considered before in its version that went ove 20 to DOE. The one .big change in the requirement is that any 21 health and safety issues be heard before you can apply the 22 authority.
23 MR. MALSCH: Right. The effect of that is that it 24 Ace-Federal Reporters, Inc. ends up being a provision thiilt authorizes us to issue a. license 25 prior to the completion of the NEPA hearings, but not prior to
54 41 completion of the Atomic Energy Act hearings. That is the 2 net effect.
3 The interim license and amendments are good for 4 12 months, but the Commission can extend them. They apply 5 to all production and utilization facilities, not just 6
- thermal neutron. genera:tion filcili ties. The Commission itself 7 must preside over the hearings.
8 COMMISSIONERKENNEDY: My recollection is when we 9 discussed that, our view was it should be confined to --(inaudible) 10 MR. SHAPER: I don't think so. We wanted to get 11 in the converter and suggested different language which they 12 didn't pick up. Is that right?
13 MR. MALSCH: We had some suggestions they didn't 14 pick up. Most of them they picked up.
15 COMMISSIONER GILINSKY: What converter is this?
16 MR. SHAPER: As I recall the discussion revolved 17 around advance.converters or St. Vrain, something like that.
lB One of you had a different kind of reactor other than the light 19 water reactor.
20 CHAIRMAN HENDRIE: It was trying to get the HTGR 21 in the same package as the other, and that had to do with that 22 thermal neutron power generating facility, rather than 23 a light water reactor facilty. So we have got that. Here I 24 don't remember --
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25 COMMISSIONER KENNEDY: Here we are beyond that. It is all --
55 42 COMMISSIONER GILINSKY: Talking about diffusion and 2 reprocessing.
3 COMMISSIONER KENNEDY: Exactly. The whole 4 fuel cycle. I am not objecting, I .m just.raising the 5 point and wondering what the rationale w.s.
6 CHAIRMAN HENDRIE: If you.re going to have the 7 authority, you =;might as well have i t for all facilities that 8 you license.
9 MR. MALSCH: Other things of interest .re the f.ct 10 that the Commissioners themselves must preside over the 11 hearing to -make the urgent public need or emergency finding in 12 case of licenses or the public interest finding in case of 13 amendments.
14 MR. CASE: :Le.tis .ma.nda tory hearing?
15 MR. -MALSCH: Yes, it is a mandatory hearing, but 16 the hearing procedure is completley discretional with the 17 Commission. It can be informal or formal. And the selection 18 of the procedures is not s~bjectjto~judicial review.
19 In our comments we had expressed no problems with 20 the basic concept .. In fact, five specific comments we made 21 were accommodated. The three days advance notice requirement 22 for interim licenses and interim operation w.s added at 23 NRC's request.
24 Theprovision that requires advance notice, but no Ace-Federal Reporters, Inc.
25 specific time period in the case of amendments was added at
56 43 NRC's request. The provision permitting the Commission to 2 commence and hold a hearing prior to expiration of the three-3 day peri0d, was added at NRC's request.
4 The provision that the NRC selection of hearing
~- -- - --~
5 procedures on the finding of the Commission, that that would 6 not be subject to judicial review, that.was added at NRC's 7 request.
8 And also at NRC's request the provision was extended 9 to include not only interim licenses, but also operation of a 10 plant for which a design permit had been issued.
11 One suggestion by Commissioner Kennedy that the 12 three-day notice provision for interim licensing or operation 13 be waived upon making certain findings was not adopted.
14 The new material here, that the Commission didn't 15 see in the 0MB comments, the item Howard just mentioned about 16 it is now required that all hearings on site-specific public 17 health and safety and common defense and security issues h&ve lB been completed, that is a new provision.
19 CHAIRMAN HENDRIE: That is all of the way through to 20 a decision, published decision, I take it? Or a decision of 21 the Board?
22 MR. SHAPER: It is not clear from the bill.
23 MR. MALSCH: In fact, there is a problem with this.
24 To what extent is it contemplated that the Commission itself Ace-Federal Reporters, Inc.
25 would get involved in what might be a premature decision on the
57 44 merits of safety and security issues; by virtue of 2 ha.ving defined that the he.rings have been completed. For 3 example, if I were . :.-.n intervenor intending to hold up iln 4 interim license, I would argue there is such a fund.mental 5 defect in the hearings, in fact in point of law the hearings 6 have not been completed~ in spite of the fact the record had 7 been closed.
8 If that objection can be entertained, the Commission 9 might find itself getting snarled in m~tters then pending 10 before the licensing or appeal board.
11 This doesn't specifically require il decision. It 12 just says the hearings have to be completed. So it is not 13 too clear.
14 Also this was il substitution for a provision in the 15 draft that we reviewed that simply required thilt all other 16 sub~t.ntive safety and security requirements had to be 17 complete, apart from the factthat the he.rings may be required, 18 if it me.nt the Commission had to find the substantive 19 requirements. had been met. That has been deleted. Al though 20 it does appear in the amendment section, and by contrast one 21 could draw the argument that whereas you must find that all 22 substantive sa.fety requirements had been met for amendments, 23 no such requirement needs to be made, be satisfied in the 24 case of licenses, which doesn't make a:.heck of a lot of sense.
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25 In the past this has turned out to be a very
58 45 controversial provision. Environmental groups generally either 2 argue against it or.for .. very n-.rrow concept, and industry 3 groups argu~ng for-. very broad concept with a very loose 4 st-.nd-.rd.
5 CHAIRMAN HENDRIE: COuldn't we find ourselves, 6 we could -.ctually have -.n appeal directed to us on -.n 7 operating license proceeding, where the Bo-.rd rendered -.n 8 initi-.1 decision, the Appeals Board h-.d looked -.tit, -.nd 9 be dealing with-. request for an interim license -.t the same 10 time?
11 MR. MALSCH: Yes.
12 CHAIRMAN HENDRIE: That would be riilther confusing.
13 MR. SHAPER: I think the intent of the language as 14 now dr-.fted w-.s sort of a compromise, that if it 15 were iln honest. to goodness health and s-.fety issue of -. kind 16 17 that there h-.d alw-.ys been it WilS
- hearing on in the p-.st, and site-specific, that process had to be completed. But 18 if it were some minor item that didn't re-.ch th-.t st-.tus, 19 then the process ought to be flexible enough to -.ccommodate 20 the interim oper-.tion.
21 Rightly or wrongly, I think that is the thrust of 22 the language as now written.
23 COMMISSIONER GILINSKY: Are there c-.ses where 24 there are .... (in-.udible)
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25 MR. SHAPER: I think Ed C-.se can -.nswer th-.t better.
59 46 But I think in recent ye.rs the experience has 2 been that the operating license hearing has not been on the 3 critical pa.th. When this provision appeared in prior yea.rs' 4 bills, the justification was it was needed for the possibility 5 that it might be .. hang-up in the future. And if the 6 public interest considerations were dominant enough, we should 7 at least have. that flexibility. There was one case, ;*,point 8 Beach II., where I guess there was some hold-up and that 9 created considerable flap.
10 COMMISSIONER GILINSKY: Was that an environmental 11 matter?
12 MR. MALSCH: It was a. combination of the two, it 13 was held up both for enviormental and safety reasons.
14 COMMISSIONER GILINSKY: So this would not a.hve applied.,
15 in this case?
16 MR. MALSCH: Well, it would have applied .. t .. cert .. i 17 point in the Point Beach proceeding. The proceeding proceeded 18 from safety issues to environmental issues. I think the 19 large -- well~ it kind of switched back and forth. It is 20 possible if this had been in effect then, we could have 21 issued an interim license and saved them some time.
22 MR. SHAPER: Of course under the present system, I 23 guess the environmental review is finished before the safety 24 review, so that raises a question about how helpful Ace-Federal Reporters, Inc.
25 MR. CASE: Usually, not in all cases.
~~.,,..,..,,--..,......,_,
60 47 CO.MMISSIONER GILINSKY: Is that the only example?
2 When was that?
3 MR. CASE: 1973. Diablo, but that is not 4 the hearing process.
5 COMMISSIONER GILINSKY: But in Point Beach, the 6 environmental process dragged on after the safety process?
7 MR. CASE: I think it was cuaght up in Calvert 8 Cliffs and everything else.
9 MR. MALSCH: We had the safety hearing, that was 10 completed, and we went to the environmental hearing, and before 11 we finished that, fuel densification arose as a big safety 12 issue, so we had to have additional hearings on fuel densifi-13 cation, so it sort of flip-flopped back and forth.
14 MR. SHAPER: That was the last case you tried, wasn't 15 it?
16 MR. MALASCH: Oh, I don't remember. It was a long 17 case.
18 MR. SHAPER: We had to get rid of him after that one.
19 CHAIRMAN HENDRIE: Took him out as trial counsel.
20 MR. MALSCH: Okay, that brings us to early site 21 reviews, Section 193.
22 CHAIRMAN HENDRIE: I have had a request that this 23 might be a good .place to break the discussion and pick up 24 tomorrow afternoon and charge a.head.
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25 (Thereupon, at 4:35 p.m. the discussion was concluded.)