ML22230A201
| ML22230A201 | |
| Person / Time | |
|---|---|
| Issue date: | 02/23/1978 |
| From: | NRC/OCM |
| To: | |
| References | |
| Tran-M780223 | |
| Download: ML22230A201 (1) | |
Text
RETURN TO SECRETAR\\AT RECORDS NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
COMMISSION MEETING TARAPUR EXPORT LICENSE Place -
Washington, D. c.
Date -
Thursday, 23 February 1978 ACE -FEDERAL REPORTERS, INC.
Official Reporten 44A North Capitol Street Washington, D.C. 20001 NATIONWIDE COVERAGE* DAILY Pages 1 -
21 Telephone:
(20:?) 347-3700
DISCLAIMER This is an unofficial transcript of a meeting of the United States Nuclear Regulatory Commission held on February 23, 1978 in the Commission 1s offices at 1717 H Street, N. t,J., t,/ashington, 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. l 03, it is not pa rt of the forma 1 or i nfor.ma l 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 Nith the Commission in any proceeding as the result of or addressed to any.statement or ar,~gL1ment contained herein, except as the Commission may authorize._
~ ';
f t
--~
ERC 6489 2
3 4
5 6
7 8
9 10 11 12 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSION MEETING TARAPUR EXPORT LICENSE Room 1130 1717 H Street, N. W.
Washington, D. C.
1 Thursday, February 23, 1978 The Commission m*et at 3:20 p.m., Joseph M. Hendrie, Chairman, presiding.
13 COMMISSION MEMBERS PRESENT:
14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc.
25 Joseph M. Hendrie, Chairman Richard T. Kennedy Victor Gilinsky Peter Bradford
2 3
.. e 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 2-3 P R O C E E D I N G S CHAIRMAN HENDRIE:
If we could come to order.
The*commission is meeting this afternoon to discuss the National Resources Defense Council petition on Tarapur Export License XSNM-1060.
There is also a connection to the license 1222 by virtue of a consolidation motion, I guess.
I understand from papers at hand that there is still further paper to come in from the Department of State.
I contemplated canceling this meeting on that account the other day and decided on balance that it would be better for us to go ahead and hear the matter laid out in at least this initial fashion by the staff.,
We can hear some options from the Counsel's Office.*
I think the Office of Policy Evaluation has a contribution to make.
I do not anticipate any really major Commission actions this afternoon in light of the still-to-come document.
But I think it is useful for us to begin to close with this matter.
Commissioner Kennedy.and I will both be away portions of next month.
And we ought to begin to get our thoughts in hand.
Should I start, Jim, with you or with Carl?
MR. SHEA:
- I would think Carl.
MR. STOIBER:
I think I will play the role of
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 interlocutor, Mr. Chairman, if you don't mind*--
CHAIRMAN HENDRIE:
Please do.
MR. STOIBER:
and call on my other colleagues as we reach those portions of the discussion that they will be contributing on.
MR. KENNEDY:
May I ask one minor procedural question before you begin?
We have a letter dated February 21 from the Departmen of State commenting on the. petition.
Are we to receive still more comments?
MR. STOIBER:
Yes.
I believe the letter indicates that this is by way of the Executive Branch submission on the issue of whether or not a hearing should be held on license No. XSNM-1060.
The Department of State also indicates that it intends to supplement the record by provision of additional informa~ion, hopefully in the near term.
And this material will not relate to the hearing question, but relate instead to a substantive license grant question.
Mr. Chairman, there are really three decisions which confront the Commission in this matter which is now almost reaching its second anniversary as the first petition in this matter was filed in Mar.ch of 1976.
- The first issue is the request for resumption of the hearings along the same lines as were conducted in July
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 I
Ace-Federal Reporters, Inc.
25 5
of 1976.
The second issue is the question of consolidating --
CHAIRMAN HENDRIE:
Carl, would that be a resumption or simply a new hearing? Isn't this a different license or is it.;._
MR. STOIBER:
The petition asks for a resumption of the hearing.
In the past, we have treated the whole pro-ceeding as a matter involving a nuclear supply relationship and not one which is basically tied to individual licensing matters.if it can be regarded as either.
CHAIRMAN HENDRIE:
Okay.
MR. STOIBER:
The second question involves a request that pending license XSNM-1222 which is the follow-on license for the next shipment of Tarapur fuel be consolidated with the present license.* That perhaps is an action that the Commission might be prepared to act on today.
And the third question is whether or not the Commission is prepared now or at some near point to act on license XSNM-1060.
You have a variety of papers before you reflecting the views of *the staff, the Executive Branch, the petitioners, and a paper from the General Counsel's Office outlining some alternatives.
What I thought might be profitable to do today would be *for me to outline the alternatives for Commission action on the request for resumption of hearings; for 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 6
staff to perhaps discuss what additional material might be expected from the State Department in its supplementary response as indicated in the February 21 letter from Mr.
Tarnoff; and perhaps also some discussion on the staff's view of the substance.of granting license XSNM-1060.
With respect to th7 question of hearings, in my memorandum of February 21, following after page. 4, I outlined five alternatives for possible Commission action with respect to this request.
There are probably variations of those five possibilities also that may arise.
But I would just briefly summarize each of them.
First of all, the Commission could, of course, determine it had sufficient information on which to act on the license and decline to hear further information views from the petitioners.. That would basically require a finding at least under the new Part 110 that a further oral hearing or written hearing would not be in the public interest.
And we have outlined in the paper some of the bases which the Commission could deduce in reaching that kind of a decision.
The* second option would be to order oral legis-lative-style hearing of the type conducted in 1976; This basically would be granting the request of petitioners, and we have also outlined on page 5 the potential time schedule for such hearings.
As we have indicated there, we find it
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 "T
21 22 23 24 Ace-Federal Reporters, Inc.
25 7
difficult to conceive of a reasonable schedule for*such hearings that would be able to occur much before the first part of April.
And the reason for this time schedule largely involve the procedures that we have established under Part 110 for the receipt of possible questions to be asked of people testifying at such hearings, F;reedom of Information Act request for additional information, and the.like.
The third*.possibility would be to, instead of grant-ing an oral hearing modeled after the earlier hearings, order some type of written hearing.
We think also a 30-day time period would perhaps be a minimum time frame in which to order such a hearing.
Thirty days is generally*a traditional time pe;riod for public comment on issues of this type.
Fourth would be to deny a hearing with respect to license XSNM-1060, the license presently before the Commission and to order a generic or general hearing on new developments which have occurred since the last hearing on the U. s.-
Indian nuclear supply relationship.
This would have certain advantages.*
First of all, it would not encumber action on license XSNM-1060 and would permit a somewhat more extended time frame for such hearings.
And it would aiso allow the Commission to take into consideration the additional material
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20
~1 22 23 24 Ace-Federal Reporters, Inc.
25 8
to be received from the State Department.
The fifth option would be to deny any form of hearing, ye.t to defer decision on whether or not to hold some sort of hearing on XSNM-1222 or generic hearing until some further point.
Those are basically the options which we have out-lined in the paper, and I would be prepared to discuss any_
of them now if you have questions.
CHAIRMAN HENDRIE:
Tell me some more about four.
MR. STOIBER:
Alternative four would be an action similar to the action the Commission took last year in the summer of 1977 by which it would consolidate the follow-on license, XSNM-1222:with the present proceedings, thereby preserving the rights of the petitioners in this matter, keeping it a live matter for the Commission, and also preserv-ing the legal posture of the litigants in the Court of Appeals.
MR. KENNEDY:
Could you explain the status of that situation at the moment?
MR. STOIBER:
The Court of Appeals, of course, heard argument*on*tnis matter -- the question of the standing of petitioners to seek a hearing as a matter of right.
And the second related question of what kind of a hearing they would be entitied to if they had established standing.
They have received argument on this in December of
9 1976 and have taken no action with respect to that matter up 2
3 4
5 to the present time.
My own judgment would be that since the Court was aware of the fact that we were promulgating a new set of regulations and also that the Congress was considering these 6
issues also that they were staying their hand until some 7
resolution of the matter might possibly be forthcoming from 8
Congress.
9 In my own view, the Nuclear Nonproliferation Act of lO 1978 substantially resolves the.question of the nature of the 11 hearings which petitioners would be entitled to in any 12 export licensing proceeding.
13 We would expect, the General Counsel's Off ice, to 14 be forwarding a supplementary memorandum of law to the Court 15 of Appeals discussing the new iegislation and its impact 16 on the lawsuit at the time the President signs the legislation 17 which we expect to be perhaps within the next week to ten 18 days.
19 So that is the present posture of the litigation.
20 We believe that it supports the position that the Commission took in the*litigation and allows the Commission to go forward 21 22 with legislative-style hearings-as we did in the summer of 23 24 1976.
- I believe Ken had some thoughts about the time-Ace-Federal Reporters, Inc.
25 table that we are operating on and whether or not the
2 3
4 5
10 Commission should prefer action.
Perhaps you would like to give some comments on that.
MR. PEDERSEN:
I wouldn't go beyond the sentiment I expressed in my memo to you on February 21.
I would think that 6
one of your major concerns about whether to go forward with 7
a hearing on a discretionary basis would be a determination of whether you felt there was a need to further elaborate the public record here.
8 9
10 11 12 13 14 15 16 I think it is going to be difficult for you to make that judgment until you see the adequacy and the compre-hensiveness of the promised State Department views that are to be forthcoming.
MR. GILINSKY:
Are they sending-over an unclassified statement?
MR. PEDERSEN:
My understanding is, and Mike Guhin 17 has more detailed information on this he has been in con-18 tact with them today -- this would be in a form that would be 19 nonclassified and that it would speak in large part to pre-20 cisely the issues raised in the NRDC petition, particularly 21 with regard to the question of urgency in the spent fuel 22 storage.
23 24 MR. KENNEDY:
It would be unclassified?
MR. PEDERSEN:
My understanding is it would be Ace-Federal Reporters, Inc.
25 unclassified; that's correct.
2 3
4 5
11 I am also told that the State Department has cautioned us or suggested there would be no major surprises in it in terms of things that the Commission might not know.
MR. KENNEDY:
Is that good?
MR. PEDERSEN:
Well, I think the feeling is that the 6
Commission has information at its disposal that it has not 7
been able to make public because of its nature, classified 8
9 10 nature or otherwise.
This would be an effort by the State Department to be as forthcoming as possible on the public record, but that for the Commissioners, it may not contain 11' anything of great newness.
12 13 14 15 16 17 18 19 20 21 22 23 24 Nonetheless, I think your decision as to whether
\\
the public record requires further elaboration through hearings will in many ways turn on how useful this document is and whether in fact it provides sufficient information.
MR. GILINSKY:
Sufficient information to discuss it here today.
MR. PEDERSEN:
It is not in our hands yet, but my recommendation was that I don't see how you can make a deter-mination as to whether or not to proceed with the hearing until you have an opportunity to review that document.
And that's kind of where I would leave it.
Ace-Federal Reporters, Inc.
MR. GUHIN:
I might clarify that a bit, Ken.
I think State has talked with them this morning.
And as they said in the letter from Mr. Tarnoff that they expect that 25
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21
~
22 I --
23 24 Ace-Federal Reponers, Inc.
25 12 this will provide substantively no new information to the Commission and that the Commission has far more than they will be able to provide in the unclassifed response.
But that they are making every effort to address the -issues which wer.e in the motions and to provide an unclassified really analysis of developments since the July, 1976, hearings.*
There may be a few items which are new information, but which have no substantive impact ori the matter before the Commission.
For example, GE's plans for reracking the spent fuel, the details of that and this kind of thing.
MR. GILINSKY:
And when is that coming over?
MR. GUHIN:
They are estimating now that it will take them a minimum of two weeks *.
There is nothing new in the response they are developing now.
Obviously, if there were new diplomatic developments or whatever, they would surely inform the Commission.
There could be developments in that sense of which the Commission is not now aware in light of this or in light of the license**proceeding itself.
CHAIRMAN HENDRIE:
Let's see, Mike, I had understood that State was going to make it a little sooner than that.
MR. GUHIN:
They are trying to CHAIRMAN HENDRIE:
What do you think their estimate as of today is more like two weeks?
MR. GUHIN:
Ten working days.
One could shorten that
2 3
4 5
6 7
8 9
10 11 12 13 14 13 if they wanted to work all weekend.
- But they are working actively now.
And, in fact, some of the things they found are easier than they expected because indeed certain reports and background 'material had been already typed up -- not in anticipation of the questions, but just for the filing purposes and declassification purposes.
But their best.. guesst1'mate this morning was about ten working days.
MR. PEDERSEN:
Mike, I understand some of that is because they have to get certain information from India; is that correct?
MR. GUHIN:
Two points.
Yes, that's right.
They want to get some of the most up-to-date information from India, and one of the complications in that regard is that the people 15 at the nuclear fuel complex that will answer the questions 16 are now either out of the city or at the Tarapur site and so 17 will not be responding until, of course.
18 And I think *another factor is just simply the 19 20 21 22 23 24 Ace-Federal Reporters, Inc.
25 putting together process.
And they cannot judge at this time when they would get further information, you know, fr9m India.
They-have, I think, inhouse, even if that doesn't come, the information a lot of which we have had and in fact all of which we have had.
- MR. GILINSKY:
What is the point about speculating about this document until we get it?
I-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 14 MR. GUHIN:
I haven't speculated about it, only except as to when it is corning.
I don't think there is any reason to speculate about its substance because I think we know substantively what it will say.
MR. STOIBER:
I think the point to consider here also is that we really are faced with two different questions.
No. 1, what is going to be the effect of the new information on the decision to either grant.or deny the license?
The second question is what relevance the information might be on the question of whether or not to hold a public hearing with respect to that license.
And one of the issues here is that it is obvious from looking at the issues raised in the petition, the effect of the SSR report, the Desai statements and the fuel return questions that these are in fact new developments since the hearing that we had in July; that the public record of the Commission has not been developed on these issues.
And so those two questions really are separate, although related.
MR. KENNEDYP:
Does that argue for a hearing, A, at all?.* A:nd-*if so, a hear-ing now or a hearing later after consolidating either in the general sense or on subsequent licenses?
MR. STOIBER:
I would guess I would not be confident in answering that question until I saw that the material
1 2
3 4
5 6
7 8
9 10 15 contained.
You might, for example, having received the information which would be in the public domain conclude that this sufficiently illuminated the public record that there was no additional need for public hearings, although it might cast your view on the substantive licence one way or the other.
On the other hand, you might feel that there were questions raised in the material that you would like to have explored in an additional hearing or pr*oceeding before acting on the license.
11 MR. PEDERSEN:
I think that is the important part.
12 Substantively, as Mike says, there may be nothing new here.
13 I don't know.
I wouldn't want to speculate.
But in terms 14 of the public record, I think some of this material may very 15 well be new.
16 MR. STOIBER:
Let me raise additionally a legal 17 point.
And that is since we are not now operating under the 18 new Part 110, on~ legal issue arises.
What vote of the Com-19 *mission would be necessary in order to hold a hearing~
20 21 As you know, under the new Part 110 rules, it takes two to tango-so to speak.
Under the ad hoc procedures you I
22 are operating with now, it would be, I assume, the majority 23 24 vote.
Ace-Federal Reponers, Inc.
MR. GILINSKY:
And when do the rules change?
MR. GUHIN:
Two and a half months from now.
25
2 3
16 (Laughter.)
MR. STOIBER:
Approximately sometime in May.
CHAIRMAN HENDRIE:
If the Commission considers that 4
that procedural aspect of making a decision not to hold a hear-s ing decided what to put in the new rules -- we have done that 6
recently the fact that the rules are not formally there 7
8 9
10 11 12 13 14 15 16 17 18 19
.20 21 22 23 24 bound in gold and leather does not change for me the fact that the Commission has thought about this subject.
MR. KENNEDY:
Or me.
CHAIRMAN HENDRIE:
And so I will say if I find two Commissioners who want to have a hearing on this subject, I am going to vote with them to have it in order that they have whatever a case.
MR. KENNEDY:
That would make it unanimous in such CHAIRMAN HENDRIE:
-- the majority is necessary.*
In other words, we are just not going to play games.
MR. BRADFORD:
Wait a minute.
We have to know what will happen if you guys want a hearing.
(Laughter.)
CHAIRMAN HENDRIE:
I am going to vote last.
MR. KENNEDY:
It is going to give you the sensing of how this works, Peter.
Ace-Federal Reporters, Inc.
CHAIRMAN HENDRIE:
So I think we are all pretty well agreed on at least that procedural aspect.
25
2 3
4 5
6 7
8 9
10 11 12 17 MR~ STOIBER:
I take my statement back.
There is no legal question.
Let me proceed to the one issue where I think it is possible that you could take a decision today.
And that is on the issue of consolidation.
I think if you examine the way the Commission has treated these issues in the past and the fact that the follow-on license does raise precisely the same policy and legal issues, I would think the Commission might well be prepared.to decide today to issue a brief, one-page, order formally consolidating the two licenses into one procedure.
That would at least clear that issue.without much 13 discussion.
14 15 MR. GILINSKY:
Would you run over what implies, Carl?
MR. STOIBER:
Well, the implication, of course, is 17 18 19 16 that the Commission can then proceed to act on one license without somehow rendering moot the legal issue which petitioner have raised in the Court of Appeals because there is still a matter before the Commission for Commission action.
And that 20 21
.22 23 24 means that it is still a live legal issue.
MR. GILINSKY:
But the licenses still remain distinct.
MR. STOIBER:
Yes, they do.
That does not mean that one must take action on both licenses at the same time.
MR. KENNEDY:
It means that one could take action, Ace-Federal Reponers, Inc.
25 for example, to issue the license 1060 without any prejudice.
2 3
4 5
6 7
8 9
10 11 18 MR. STOIBER:
That's correct.
To XSNM-1222, the following license.
MR. KENNEDY:
Or the decision as to a hearing in that connection.
MR. STOIBER:
Right.
And in fact, it would be inappropriate to act upon license 1222 because the Executive Branch views on that license have yet to be received.*
l MR. KENNEDY:
All rights of the parties, all interests of the parties, are protected?
MR. STOIBER:
Yes.
CHAIRMAN HENDRIE:
Your paper notes that the Depart-1211 ment of State does not object to consolidation.
The staff 13 14 15 16 17 18
.19 20 21 22 23 24 ce-Federal Reporters, Inc.
25 does not object to consolidation.
Is that it?
MR. STOIBER:
That's correct.
CHAI~ HENDRIE:
I don't know who speaks for I
State, but I assume you understand their point of view.
MR~ SHEA:
Their position.
That's in writing in their letter from Tarnoff of February 21, the last paragraph.
CHAIRMAN HENDRIE:
Since the petitioners have made the motion, I assu~e that they feel that their interests would not be jeopardized by consolidation.
And I take it your advice is that the Commission's range of options and general position in the matter is not degraded.and may *even be improved by consolidation.
MR. STOIBER:
Just so.
2 3
4 5
6 19, CHAIRMAN HENDRIE:
Well, as I seldom find a matter so unanimously agreed to as this moral, upright, in accordance with God and motherhood and everything, I seize upon it with joy.
Do you want to consider consolidation further?
We could draw straws to see who defends it and who
?II who attacks it.
Why don't we simply agree it seems a useful 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc.
25 thing to do, and it is out of the way.
I would ask you then to vote to consolidate.
(Hands were raised.)
- So ordered.
With regard to the hearing, if State comes forward about the 9th of March, two weeks from today, or a couple of days later, maybe two weeks from this coming Monday, the Commission could consider that matter, but with one of us absent.
Now, let's see, someplace here it says the tenth through the end of the month.
MR. KENNEDY:
I'll be back before that date as proposed as a hearing date.
I.would be back before that.
Actually, I'Tl be back before the second -- the 30th or 31st.
CHAIRMAN HENDRIE:
Question:
do you feel we need a full panel of four to meet again and determine the hearing question?*
MR. KENNEDY:
I would be guided by whatever judgment
2 3
.. e 4
5 6
7 8
9 10 11 12 13 I --
14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc.
25 20 my colleagues reach.
MR. BRADFORD:
Have we clearly got an option?
CHAIRMAN HENDRIE:
Well, it is sort of an at~our-option matter.
We could decide that, indeed, the four of us should sit down together and make such a decision, or we might decide, if the Commission has a quorum when we get the paper from State, we proceed to meet on it.
MR. KENNEDY:
That would be wholly acceptable to me
\\
on whatever grounds.
CHAIRMAN HENDRIE:
I think it is not unreasonable if it were a majority requirement of the Commisssion.
I would think then everybody ought to be present to get his vote in.
There is a lower threshold here.
I have no objection to you going ahead and meeting in my absence.
Dick says none in his.
MR. KENNEDY:
Two of them can't meet.
CHAIRMAN HENDRIE:
True.
MR. KENNEDY:
It has to be a quorum.
CHAIRMAN HENDRIE:
True.
True.
But we will have one.
MR:* KENNEDY:
Yes.
/
CHAIRMAN HENDRIE:
I will go, and you will be here.
Then you will go, and I will be here.
- And I trust that both of you will be here minding the store.
21 Okay.
I think, then, we ought to delay until we 2
get the paper unless you are prepared now to make a decision.
3 MR. BRADFORD:
No, I would be in favor of waiting 4
for the paper.
5 6
7 8
9 CHAIRMAN HENDRIE:
I was looking at my calendar because if we agreed, for instance, that we really ought all four to be here, then I can see it going all the way to the second of April, the first week in April, before one could close on a decision.
And I would wonder in that case whether 10 that wouldn't encourage me to try to make a decision now so 11 that various preliminaries could get underway if they were 12 to be.
13 Well, I don't know that we need to cover that.
14 15 16 17 18 19 20 21 22 23 24 Ace-Federal Reporters, Inc.
25 Does anyone see any need for any further discussion on the Tarapur license matter?
(No response.)
In that case, let me declare that session of the meeting complete.
(Whereupon, at 3:50 p.m., the meeting was adjourned. )