ML22230A073

Tran-M780116: Public Meeting Briefing on Possible Impropriety in the Use of NMSS Analysis of California Energy Commissions Interim Report on Reprocessing and High Level Waste Disposal (Secy 78-19)

ML22230A073
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Issue date:	01/16/1978
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REJURN TO SE~RETARIAT RECORD

NUCLEAR REGULATORY COMMISSION

IN THE MATTER OF:

PUBLIC MEETING

BRIEFING ON POSSIBLE IMPROPRIETY IN THE

USE OF NMSS' ANALYSIS OF CALIFORNIA ENERGY

COMMISSION'S INTERIM REPORT ON REPROCESSING

- AND HIGH LEVEL WASTE DISPOSAL (SECY 78-19)

Place - Washington, D. C.

Date - Monday, 16 January 1978 Pages 1 - 47

Telephone :

( 202) 3.47-3700

ACE - FEDERAL REPORTERS, INC.

Official Reporters

444 North Capitol Street Washington, D.C. 20001

NAT:ONWIDE COVERAGE* DAILY DISCLAIMER

Nuclear Regulatory Commission held on.. Januai:y lo, 1978 in the This is an unofficial transcript of a m~eting of the United States meeting was open to public attendance and observation. This.transcript Commission's offices at 1717 H Street, N. W., Washington, D. C. The has not been reviewed, corrected, or edited, and it may contain in~ccuracies.

( As provided by 10 CFR 9.103, it is not part of the formal or informal -The transcript is intended solely for general informational purposes.

"' record of decision of the matters.discussed.:: Expressions of opinion in this transcript do not necessarily reflect final determinations or.

belief$. 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 ef, contained herein, except as the Commission may authorize.

i~o 1

CR 6062 UNITED STATES OF AMERICA WHITLOCK All 2 NUCLEAR REGUi.ATORY COMMISSION

3 'PUBLIC MEETING I '

- 4 BRIEFING ON POSSIBLE IMPROPRIETY IN THE

5 USE OF NMSS' ANALYSIS OF CALIFORNIA ENERGY

6 COMMISSION'S INTERIM REPORI' ON, REPROCESSING

7 AND HIGH LEVEL WASTE DISPOSAL (SECY 78-19}.

8

9

I 10 *Room 1130 1717 H. Street N.W.

11 Washington, D.C. I

I 12 Monday, l6_January 1978

13 14 The Commission met, pursuant to notice, at

15 11:40 a.m., CHAIRMAN JOSEPH HENDRIE, presiding,

16 BEFORE:

17 CO~.MISSIONER JOSEPH HENDRIE,.Chairman.

18 COMMISSIONER VICTOR GILINSKY

19 COMMISSIONER RICHARD KENNEDY '

20 COMMISSLONER PETER BRAFORD:

21 NRC STAFF ATTENDANCE:

22 Robert Ryan Howard Shapar 23 Cliff Smith Dr. Parry 24 Lee Gossick Ace-Federal Reponers, Inc. Ken Pedersen 25 Jim Kelley*

2

P R O C E E D I N G S

2 (11:40 a.m.)

3 CHAIRMAN HENDRIE: Let's see. I guess we are all

- 4 here, so why don't we get started.

s The next subject is a briefing on how some inform

6 al memoranda got one place or another in the case of comments

7 on the California Energy.Commission's Interim Report on Re

8 ~rocess and High Level Waste Di~posal.

9 The Commission has thorough displays from Staff on

10 this. It seemed to me a pretty complete job Of wrapping it

11 up.

12 I might start the proceedings out by noting that

13 back at the* end of September I met here with Richard Maullin, 14 the Chairman of the California Commission, arid his deputy,

15 Jim Walker; Herbert Brown, consultant to the Commission, was

16 with them.

17 We had a good discussion here on the sort of

18 matters that are of mutual interest. And the date was.

19 September 30th.

20 Mr. Maullin had to go to Capitol Hill to give

21 some testimony or a speech or something like I am not

22 sure which. He came back later that day and we had a further

- 23 discussion in th~ afternoon, about 2:00 p.m., my log says.

24 I must say I can't remember at this point whether Ace-Federal Reporters, Inc.

25 I did or did not, but it is quite conceivable that I 3

presented him and his deputy with copies of that memoranda

2 on an informal basis with the understanding that it was 'a

3 Staff document.

4 And I guess we could probably find out whether I

5 did or didn't if I would call Mr. Maullin, Mr. Walker,and

6 Herb Brown, but I haven't done that. I note the fact for

7 the record before we get on into other elements-' of the

8 proposition.

9 I will make one other comment. We make a good

10 deal in this agency that we don't conceal pieces of Staff

11 view which don't agree with the views of the cognizant branch

12 chief or assistant director, or director, or executive dir-

13 ector, or Commissioners.

14 And I wouldn't be surprised.but what we will find

15 that this piece of material may' fall in that category. I

16 wouldn't see any more reason to conceal and be embarassed

17 about this piece of information' than I would a memorandum

18 from a responsible professional on the reactor side where I

19 have had some experience saying: I don't agree with the

20 Staff position on the safety-related elements of the switch

21 gear arrangement for plant number x, which,we would pre

22 sumably, I have said, put in a Safety Evaluation Report in

• 23 the public document room and every place else.

24 Vic, this briefing is at your request, arid since Ace-Federal Reporters, Inc.

25 I have talked at some length,! think it is fair that you 4

might want t~, if you would like--

2 COMMISSIONER GILINSKY: Sure.

3 CHAIRMAN HENDRIE: -- to make some introductory

4 remarks, please do so.

5 COMMISSIONER G~LINSKY: Well, since you have

6 raised the point, I think it is worth saying that what is not

7 at issue here is whether the Staff has a right to its views

8 or to distribute those. I think it clearly does.

9 But the question is the proper label-ing of these

10 memoranda.

11 And I asked for the meeting because a memorandum*

12 prepared for me by one of the Staff offices came to be mis

13 used in California political battles between the California 14 Commission and its critics.

15 It has been passed off as a Commission document.

16 We have come for a bit of criticism for improperly involving

17 ourselves in California decision-making.

18 I.must say the document as it was sent out, in

19 fact, lent itself to misinterpretation.

20 Now, the issue. doesn't go to the merits of the

21 controversy, the substance of tpe memo and so on. It con

22 cerns the question of sendi'ng out -- really, of how we an-

- 23 swer our mai 1.

24 The question of intent has been brought up, news-:--*

Ace-Federal Reporters, Inc.

25 paper articles. I think it needs to be cleared up. But 5

aside from that, I think we hav~ to-- I think the meeting

2 will have served a us*eful purpose if we come out of it with

3 some sort of guidelines for dealing with state offices,. as

4 we have, for example, for dealing with members of Congress,

5 or similar sort.of correspondence.

6 And I see you have a set of notes* there, Lee.

7 MR. GOSSICK: Yes.

8 I am prepared to sort of cover this.matter.

9 Of course, in your memorandum of January the 6th,

10 Commissioner Gilinsky, you requested the briefinq, discussion,

11 of the NRC Staff's role, circumstances surrounding this mat

12 ter, of the analysis that was prepared by NMSS of this interim

13 report on reprocessing and high,. level waste proposal by the

14 California Energy Resource Conservation Development Commission

15 In that memorandum, Commissioner Gilinsky ex

16 pressed concern that _there may have been improper contact

17 between the NRC Staff offices and California utilities,

18 utility representatives, legislators and legislative staff

19 members.

20 You said that there is an appearance -of members

21 of the NRC Staff having allowed themseives to be used by

22 *San Diego Gas and Electric Company to influence public

23 opinion in California, and having been improperly involved

24 in California-politics and California decisions.

ca-Federal Reponers, Inc.

25 You also asked how the Office of State Programs 6

truncated version of the NMSS analysis came to be circulated

2 as an NRC document, and whether or not any member of the

3 Office of State Programs staff or any other person outside

4 of NMSS made any contribution to the analysis which you had

5 received on September 7th, in response to his request made

6 directly to Dr. Smith on August 11th.

,7 On Thursday, January 12th, I sent the Commis

8 sioners a chronology of the events related to this matter,

9 together with a tab set of all the pertinent documents.

10 On January 13th, in response to a memorandum of

11 the same date from Commissioner Gilinsky, expanding on his

12 request of January 6th, I provided the Commission with addi

13 tional inf.ormation having to do with the contacts between 1,4 members of the Staff and the commissioners or staff members

15 of the California Energy Resources Conservation and Develop;;..

16 ment Commission.

17 I think in reviewing this matter, I believe it

18 will be more convenient for you to refer to a consolidated

19 and somewhat less detailed chronology of events that I have

20 asked the Secretary to distribute to you.

21 (Distributing documents.)

22 MR. GOSSICK: Before proceeding with this, how

- 23 ever, I would like to reaffirm the conclusions.. which I in

24 _ eluded *in my memorandum _to you on January the 12th; Ace-Federal Reporters, Inc. I 25 First, I am informed that no member of the OSP 7

staff or any.person outside of NMSS made any contribution

2 to the analysis which Dr. Smith provided Commissioner

3 Gilinsky on September the 7th.

4 And secondly, based on information provided me

5 with regard to the contacts between members of the Staff and

6 the California leg is la tors, u ti li ties, and commis.s ioners and

7 staff of the Energy Commission in California, it is my view

8 that members of the Staff have not engaged in "improper

9 contacts, or involvement in California politics or California

10 decision~rnaking."

11 Now, this chronology of events starts, of course,

12 in August, August the 11th, when Commissioner Gilinsky asked

13 Dr. Smith for an analysis of the interim report that had 14 been submitted by CERDC which I presume had been sent to the

15 Commission, and I believe was forwarded to Dr. Smith for

16 his review.

17 CO:tv'l'..MISSIONER KENNEDY: Could I ask if *.the

18 California Commission had solicited any views on the Com-l? mission or Staff's part*when they submitted that report to_ us?

20 MR GOSSICK: It is not evident from the request

21 that we got.

22 DR. SMITH: I would have to ask my staff. I know

23 personally I was not.

24 Jack or Bill, were we asked any comments, speci-ce-Federal Reporters, Inc.

25 fically?

--- ------------------------------------------------~

8

MR. PARRY: Not before this time, no.

2 DR. SMITH: Not before this time.

3 COMMISSIONER KENNEDY: Well, I was wondering,

4 MR. GOSSICK: Later on.

5 COMMISSIONER KENNEDY: If at some point the

6 California Energy Commission had elicited from us any com

7 ment of any point

8 DR. SMITH: Oh, yes. That will come out later

9 at a later time.

10 MR. GOSSICK: At a later date.

11 On August the 16th, then, a letter from State

12 Senator Alquist came in to Mr. Ryan, asking for a review of

13 this same interim report.

14 On August the 23rd, Mr. Ryan sent a memo to various

15 Staff offices requesting comments on the interim report.

16 And then in late August, there was a telephone call

17 apparently from Commissioner Pasternak to Mr. Jaske in the

18 Office of State Programs, informing us that a minority posi

19 tion on the interim report was being filed and would be

20 furnished to NRC.

21 I think, also, at_roughly the same time, Homer

22 Lowenberg had, I guess -- or slightly before that, run into

23 Commissioner Pasternak, I believe in a meeting in Vienna

24 and been told* tha*t there was a minority report being p*re Ace-Federal Reporters, Inc.

25 pared.

9

COMMISSIONER GILINSKY: Could I ask you:

2 Was the memorandum prepared with both requests in

3 mind, or was it simply that one memorandum was used also for

( 4 -another purpose?

5 MR. GOSSICK: I am sorry; which memorandum.

6 DR. SMITH: He is talking about

7 COMMISSIONER GILINSKY: The memorandum prepared for

8 me.

9 DR. SMITH: Yes.

10 COMMISSIONER GILINSKY: *was that -

11 DR. SMITH: No.

12 After the request that you made to have the

13 Califorriia interim report reviewed, I asked Dick Cunningham 14 to delegate or appoint someone in our office, senior tech

15 nical man, to-review the report.

16 He came back and said Dr. Parry would be the per

17 son who would review the report.

18 It was my -- initially the first report that* I

19 got from the Staff was only about one or two p_ages. It was

20 rather general*. I felt that what you really wanted was some

21 thing that was rather detailed and candid.

22 And so I sent it baqk to the Staff, and that re

- 23 sulted in a report coming back. I looked at it. It was my

24 viewpoint that since -~ou had asked for the views of the Staff Ace-Federal Reporters, Inc.

25 with respect to that report, ahd since I considered it an 10

intra-agency memo; if you*will, from me to you, on that basis

2 I forwarded the report to you.

3 It was not a report -- a memorandum that was pre

- 4 pared for anyone other than you, the one that I signed.

5 CHAIRMAN HENDRIE: Well, in particular., Com-

6 missioner _Gilinsky's question is that since these requests,

7 one from him to you for*sort of a private review, and also

8 the one to Ryan from California for NRC's views were arriv

9 ing sort of within a week or two of one another, --

10 DR. SMITH: No.

11 Dr. Parry '.s memorandum -- Dr. Parryc~s-work in

12 preparing that*memorandum which I subsequently forwarded,

13 was exclusively to answer or to respond to Commissioner

14 Gilinsky.

15 DR. PARRY: That is correct.

16 COMMISSIONER KENNEDY: But it says on this chron

17 ology that on September 7th, a copy of thatmemo was sent to

18 Mr. Ryan in response to his August 23rd request for Staff

19 comments on the inte.t:im report.

20 MR. GOSSICK: I believe there had been a conver-

21 sation in connection with this subject, Commissioner Kennedy,

22 asking on the part of Mr. Ryan's office, whether or not they

- 23 felt that this thing could be this report -- could be

24 provided to Senator Alquist.

Ace-Federal Reporters, Inc.

25 There was discussion that with some revision and 11

some deletion of sort of internal narries and things like this,

2 that they thought it was appropriate. And that we will get

3 into later on, how that came to *be sent instead of the other

4 report.

5 But in.. the time period September -- from

6 September 9th to --

7 COMMISSIONER GILINSKY: Could I just stop you for

8 a minute. There is an August 23rd memo in which Bob asks

9 for the views of a number of offices.

10 MR. RYAN: Yes.

11 COMMISSIONER GILINSKY: And were these selected

12 on the basis of _their participation in the hearings, or

13 simply the relevance of their expertise?

14 MR. RYAN: No; they were selected on the basis

15 of our general practice when we have a matter of*this sort,

16 to circulate to the widest possible group of offices within

17 the agency, to elicit comments on matters of this sort.

18 The selection was made by Bob Jaske in my ab

19 sence. I was on vacation at that time. I _think the selec

20 tion is correct. That is the logical -breakdown as far as

21 I can see; OELD, Standards, NRR, and NMSS.

22 MR. GOSSICK: And Research.

- 23 MR. RYAN: Research,* RES; right.

24 I agree with the breakdown.

Ace-Federal Reporters, Inc.

25 MR. GOSSICK: Okay.

12

The week of September 12th, there was a meeting

2 held in Bethesda at NRC, between Mr. Simon of the Energy

3 Commission of California and Dr. Bishop and Dr. Parry.

4 And. I believe that as a result of this meeting,

5 where there generally was.a discussion of I guess this re

6 port as well as other matters, at some later time, there was

7 a memo sent from Mr. Simon to Dr. Bishop, I believe,.. pro

8 viding a copy of their Staff comments on the minority report,

9 and also soliciting any comments that.the Staff had on that

10 interim report, as we mentioned earlier.

11 So it was not until some time later in September

12 that there was this request directly from the commission

13 staff, asking for*comments.

14 In late September, or~-

15 COMMISSIONER GILINSKY: Let's see; at some point

16 Bill gave them a copy of this.

17 MR. GOSSICK: Yes; that was the next point I was

18 going to cover.

19 COMMISSIONER GILINSKY: Okay

20 MR. GOSSICK: -- Commissioner Gilinsky.

21 We can't pin this date down exactly, but it was

22 either late September or early October, that Dr.. Parry,

23 following this meeting and following the other discussion

24 with the California commission staff, did send to, I guess Ace-Federal Reponers, Inc.

25 it was Mr. Simon, was it, Parry?

13

DR. PARRY: Mr. Simon.

2 MR. GOSSICK: Or Mr. Simon, rather; another ver-

3 sion or an edited version of Dr. Smith's September 7th memo.

- 4 Now,

5 COMMISSIONER GILINSKY: I noticed there was. no

6 covering letter in this package that you presented us.

7 MR. GOSSICK: It was only, as I understand it,

8 Dr. Parry, you just put a buck slip or a note?

9 DR. PARRY: It was sent as, "as per your request."

10 COMMISSIONER GILINSKY: So in other words, these

11 were understood to be the informal views of vour outfit?

12 COMMISSIONER KENNEDY: It was sent in accordance

13 with whose request?

14 DR. PARRY: Mr. Simon had made a request to us

15 during that meeting. And that had subsequently been edited

16 and then was sent out under (inaudible).

17 COMMISSIONER GILINSKY: So these were not, "NRC

18 views," or

19 MR. GOSSICK: No.

20 COMMISSIONER GILINSKY: or "Commission views?"

21 MR. RYAN: That request is reflected in Simon's

22 letter to Parry dated the 22nd of September, I believe it

- 23 was.

24 MR~ GOSSICK: In late September and again in the Ace-Federal Reporters, Inc..

25 early October time period, the State Programs and Staff

14

offices were in the process of considering the proposed

2 response to Senator Alquist.

3 The views expressed by, such as Standards Develop

- 4 ment, NRR and others were considered. The Office of the

5 Executive Legal Director bad proposed a modification

6 COMMISSIONER GILINSKY: Well, could*go into that.

7 For example, in Standards, I notice there_is

8 a statement. Mr. Benaroya says:

9 "I believe we at NRC should confine

10 our comments to the accuracy of statements*and

11 reports, and so on, not to the conclusion it

12 draws."

- 13 There are number of other.comments which seem to

14 have been ignored. And I am wondering how that came about,

15 including OELD which seemed to have gone over the memorandum

16 fairly carefully.

17 MR. GOSSICK :. Yes.

18 COMMISSIONER GILINSKY: -- and indicated

19 MR. GOSSICK: Well, if I may --

20 COMMISSIONER GILINSKY: -- indicated portions

21 which they thought inappropriate.

22 MR. GOSSICK: Yes.

- 23 MR. RYAN: Mr. Chairman, may I address this one?

24 CHAIRMAN HENDRIE :.shoot.

Ace-Federal Reporters, ln_c.

25 MR. RYAN: OELD filed a paper with our office in 15

September -- I can't find ( inaudible) on it. It is F.

2 MR.* GOSSICK: It is,9, September.

3 MR. RYAN: It is September 9th.

4 COMMISSIONER KENNEDY: That is an "f?"

5 MR. GOSSICK:* That is an "f.~

6 MR~ RYAN: This well, let me read it*:

7 "The subject report was prepared pursuant

8 to certain California statutues pertaining to land

9 use and certification of n:uclear facilities in that

10 state. The statutes in question are of doubtful

11 validity, at least insofar as their application

12 would frustrate the full effectiveness of federal

13 law.

14 "However, 1.* t

• ld

• d wou seem unnecessary an

15 perhaps *inappropriate to record this assessment in

16 an NRC response to Senator Alquist, since we were

17 not specifically asked to address the preemption

18 issue and since.the actual conflict with federal

19 law may never arise.

20 ""We~_haV!e no other substantive comments

21 to make."

22 We followed that advice, Commissioner, fully and

23 completely. We did not comment on the question of pre-24 emption. -

ca-Federal Reporters, Inc.

25 COMMISSIOENR GILINSKY: Well, but let's see; you 16

have got an edited version of your version of the original

2 memorandum prepared in Cliff Smith's office.

3 MR. RYAN: Yes.

4 COMMISSIONER GILINSKY: Which was edited, I under

5 stand, by Tom Engelhardt.

6 MR. RYAN: Yes, that is correct.

7 COMMISSIONER GILINSKY: And it --

8 MR. RYAN: This come at a later date. The ques-

9 tion was how to --

10 COMMISSION.ER KENNEDY: Excuse me. Is that in this

11 file?

12 MR. RYAN: Yes, it is.

13 I don't recall the

- 14 MR. GOSSICK: Attachment

15 MR. RYAN: Attachment T.

16 CHAIRMAN HENDRIE: Back in that neighborhood.

17 MR. RYAN: *Justa second.

18 COMMISS1'ONER GILINSKY: Also, on the way toward

19 it, I see a memorandum from Salovine which says:

20 "Considering the broad scope of the

21 subject matter, the majority report is well con

22 structed and downright factual.

- 23 MR. RYAN: Yes, indeed.

24 COMMISSIONER GILINSKY: Which, without getting ce-Federal Reporters, Inc. I 25 into the merits --

17

I

I MR. RYAN: Well, let's talk about that for a

I 2 moment.

3 COMMISSIONER GILINSKY: Basically, the --

- 4 MR. GOSSICK: Could we have just a moment.

5 COMMISSIONER GILINSKY: Sure.

6 MR. GOSSICK: There is one other point*here, that

7 I think it might as well get introduced now.. By the_way,

8

• this attachment is attachment L, that Tom Engelhardt had

9 proposed.

10 COMMISSIONER GILINSKY: Yes.

11 MR. GOSSI CK: And my ~-

12 COMMISSIONER KENNEDY: In that connection, what

13 he has done is marked a number of suggested changes -

14 MR. GOSSICK: Right; editorial and content.

15 COMMISSIONER KENNEDY: Okay.

16 MR. GOSSICK: And as you will note, at le.ast my

17 copy and I trust yours, has a date of September the 7th,

18 19 --

19 COMMISSIONER KENNEDY: October the 7th.

20 MR. GOSSICK: October the 7th. I am sorry. Octobe

21 the 7th.

22 Now, on October the 5th, of course, there was the

23 letter from Mr. Pollard to Commissioner Gilinsky indicating

24 that he had a copy of the original September 7th memo that Ace-Federal Reporters, Inc.

25 had been addressed to Commissioner Gilinsky.

18

And I wanted to bring that out, in that I think

2 this was a factor, then, in deciding, at least according to

3 the OSP people, how we finally came up with sending this

- 4 MR. RYAN: But more than that, Mr. Gossick, the

5 Office of Nuclear Materia],;.Safe~y and Safeguards had advised

6 us in late September that the document in question had been

7 given to the California Energy Commission in the person of

8 Gary Simon.. -

9 COMMISSIONER GILINSKY: But this was yet another

10 edited version.

11 MR. RYAN: Well, I had no idea of that. I was told

12 that the document had been given to Mr. Simon. I think it

13 is edited, but it is substantially the same document as 14 MR. GOSSICK: I have been through it line-by-line,

15 comparing it --

16 COMISSIONER GILINSKY: But the question here is

17 not whether or not you sent this.'memo

18 MR. RYAN: I didn't say that.

19 COMMISSIONER GILINSKY: -- supplied for me to

20 other people, although I think you should have as a courtesy

21 asked me ab:out*it.

22 There'is nothing wrong with that memo being sent

- 23 around. It is question of how it is portrayed and whether it

24 is portrayed as a Commission view.

Ace-Federal Reporters, Inc.

25 I mean, I have no objection to people seeing this 19

memo and when Mr. Pollard asked me for it, :i; put it in the

2 public document and sent it to him.

3 MR. RYAN: Sure; I understand that.

- 4 I portrayed this memo in my* letter to Senator

5 Alquist as a Staff document. And it is intrinsically reads

6 a Staff document; NMSS says this and NMSS says that, and

7 this is the view of the Staff.

8 COMMISSIONER GILINSKY: Well, we wili get to that.

9 But the document does --

10

• MR. GOSSICK: Which version are we speaking to now;

11 the truncated or the full version.

12 COMMISSIONER GILINSKY: Well, I am just sort of

13 following along. I am up to M.

14 MR. GOSSICK: M; okay.

15 COMMISSIONER GILINSKY:_ Or L, I guess it is, which

16 is

17 MR. GOSSICK: Lis the Engelhardt

18 COMMISSIONER GILINSKY: It is the Eng~lhardt

19 revision.

20 MR. GOSSICK: Right..

21 COMMISSIONER GILINSKY: And he lines out some

22 sentences which characterize the tone and talked about

23 anti-nuclear bias things like that this, rather than dealing

24 with the merits of the technical matters, and if the Ace-Federal Reporters, Inc.

25 California people (inaudible), we have the expertise; by all 20

means, we should point this out to.them.

2 But

3 MR. RYAN: May I comment on that?

4 COMMISSIONER GILINSKY: Yes.

5 MR. RYAN: As far as I was concerned, Commissioner,

6 by this time it was a moot issue. The document was out, as

7 far as I was concerned, to California, and out abroad in the

8 world.

9 This was confirmed --

10 COMMISSIONER KENNEDY: This was the document

11 MR. RYAN: The Smith document, yes.

12 COMMISSIONER KENNEDY: This document

13 MR. GOSSICK: The September 7th memo to,Commissioner

- 14 Gflinsky.

15 COMMISSIONER KENNEDY: The October

16 MR. RYAN: The original memo.

17 COMMISSIONER KENNEDY: The October 10th paper,

18. unedited; that is, this document without the line-throughs

19 and marks on it-~ no?

20 MR. RYAN: No. The original memorandum from

21 Dr. Smith

22 COMMISSIONER KENNEDY:. Okay.

23 MR. RYAN: -- to Commissioner Gilinsky.

24,COMMISSIONER KENNEDY: All right.

Ace-Federal Reporters, Inc.

25 And that was -- had been transferred to Mr. Simon 21

of --

2 MR. RYAN: That was my understanding.

3 COMMISSIONER KENNEDY: A. B, had been made

4 available through -- in the public document room and to Mr.

5 Pollard.

6 MR. RYAN: Right.

• 7 COMMISSIONER GILINSKY: Well, but -- wait a min

8 ute. Mr. Alguist did not ask for Mr. Smith's memorandum to

9 me. He asked for NRC views; right?

10 MR. RYAN: That's correct.

11 COMMISSIONER GILINSKY: So in sending him this

12 memorandum, you are passing it off as the NRC --

13 MR. RYAN: No, sir.

-* 14 COMMISSIONER GILINSKY: -- the views of the NRC.

15 MR. RYAN: No, sir.

16 I stated in my letter to Senator Alguist that this*

17 was prepared by the Staff and the document intrinsically

18 states that it is a Staff document.

19 I suggest that your observation to me on the

20 telephone a couple of weeks ago is correct; that there is

21 little understanding in the world abroad of the distinction

22 between Staff and Commission, and that the NRC is viewed as

- 23 a monolith by the world at large.

24 But as-far as I was concerned, I was not Ace-Federal Reporters, Inc.

25 representing this to be a Commission document. I was 22

representing it to be a Staff document and so stated in my

2 letter to Senator Alquist, and reaffirmed it in my subse

3 quent letter to Senator Alquist.

- 4 COMMISSIONER GILINSKY:. Well, it would seem to

5 me, getting -- well, it is at least unclear. I mean, he -

6 Senator Alquist writes a letter to an office of this Com-*

7 mission, gets.a response. I think he can fairly well ac

8 cept that a reason to think that is the view of this organ-

9

10 And we are a lot more careful in writing to

11 Congressmen. Senator Alquist, in his way, is certainly an

12 important leader in energy matters in California. And I

13 think he has a right, when he asks for it, to know where this 14 Commission stands.

15 If he gets more limited sort of advice, it ought

16 to be clearly explained that that is what it is.

17 I notice also that ELD nonconcurred in this memor-

18 andum.

19 MR. RYAN: Yes, that's true.

20 COMMISSIONER GILINSKY: And it went out despite

21 that.

22 MR. RYAN: Yes, indeed. That frequently.happens

- 23 in this c*ommission..

24 MR. CHILK: Seldom. - *-

Ace-Federal Reporters, Inc.

25 (Laughter.)

23

MR. RYAN: May*I describe the nature of the non-

2 concurrence.

3 COMMISSIONER GILINSKY: I thought.you had every-

4 thing under control, Howard.

5 MR. *RYAN: There was. no nonconcurrence as far as

6 legal matters were concerned.* The nonconcurrence had to do

7 with the perjorative language, at least the language was* so

8 referred to by Mr. Engelhardt,. contained in the Smith memor

9 andum to you, dated September 7th.

10 That is why we went through this exercise w+/-th

11 Mr. Engelhardt, to see if we could come to an accommodation

12 on a document which would meet his approval.

• 13.As I said before, as far as I was concerned, that 14 became mooted when it was obvious that the.original memoran

15 dum from Mr. Smith to you was out in the world.

16 COMMISSIONER GILINSKY: Well, but to get back to

17 that point, it is not that memorandum which is at issue; it

18 'is a question of NRC views. I mean, he didn't ask for that

19 memorandum.

20 First of all, it is not out in the world. It

21 was given as an informal view of his office by Bill to

22 Mr. Simon. There was no reason to think it went beyond the

23 commission.

24 We inquired of Mr. Pollard, and it turned out that Ace-Federal Reporters, Inc.

25 he had received a copy, althou~h I don't know how you could 24

have known that he had the complete copy. And he sent his

2 only copy also to Mr. Simon. Mr. Simon was the possessor

3 of the two copies that were floating around in the world.

4 MR. RYAN: He said he -- I knew it because he

5 said it in the first part of his letter. I presume he was

6 speaking the truth. He said:

7 "I have come into possession of a copy

8 of a document from Mr. Smith,"

9 -- to you.

10 COMMISSIONER GILINSKY: But in any case, there

11 still remains the question of how we represent the views of

12 this agency.

13 And here OELD says there was a lot perjorative 14 language, and your office deals with state relations.

15 And I guess I am a little surprised that you so

16 casually send out memoranda when asked for the views of this

17 agency, which contains such perjorative. language.

18 MR. GOSSICK: Commissioner Gilinsky, I accept your

19 comment and the view here. I think that we have learned

20 through this process that there perhaps should have been a

21 little greater sensitivity in at least bringing to the

22 Commission as a whole a matter of how we responded to

23 Senator Alquist, recognizing sort of the controversy and the

24 possible delicacy-of-this-matter.

Ace-Federal Reporters, Inc.

25 I accept that, and I hope that we will not 25

CHAIRMAN HENDRIE : I think --

2 MR. GOSSICK: -- have this problem.

3 CHAIR111AN HENDRIE: I think -- look; I think that

4 the fact that the assorted memoranda of one version or ano-

5 ther got brandished on both sides of the controversy in

6 California and so on, is unfortunate.

7 But I am afraid that from time-to-time those

8 things will happen -ana are almost inevi tafule. I think that

9 the problem that State Programs had here*is that if the

10 original version of a Staff document is public and they mod

11 ify it to take out pretty candid language along the line of

12 Tom Engelhardt's suggestions, you really are choosing be

13 tween which horn of a dilemma you want to be hung on.

- If you take the candid stuff out, you __ are going 14

15 to get a holler back from some place that you have emascu

16 lated a candid and forthright Staff view, and that that was

17 improper.

18 If you don't take it out, then you have the pre

19 sent problem.

20 So, I can see you know, I can see State Programs

21 in trying to decide what to do with this and whether to go

22 with lining out the tougher comments about the California

- 23 report, really having a problem to go -- Now, I suppose Bob

24 could have come ferward through Lee to the Commission and Ace-Federal Reporters, Inc.

25 said: Now, here is a head scratcher. Which way shall we go 26

here?

2 But there is an enormous volume of business moving

3 through the Staff and then he thought he ought to settle it

- 4 as he thought best.

5 COMMISSIONE.R GILINSKY: Well, I hope you are not

6 excusing the action here.

7 MR. RYAN: May I make a statement, Mr. Chairman.

8 CHAIRMAN HENDRIE: I don't think -- let me make

9 it quite clear, Vic. I don't think there has been on he

10 Staff's part, any sort:of wrongdoing. I think it is unfor

11 tunate that these documents have gotten embroiled in state

12 fight.

13 But I recognize that our material. are going to be 14 used on one side or another on all of these things.

15 And it seemed to me that you ask here for a stan

16 dard.on the Staff's side, which beggars human ability, to

17 define whether or not the problem is going to come down to

18 be one that some of this candid langugage from Staff pro

19 fessionals gets spread and used and represented as the Com

20 mission's view, or whether he is going to be.charged, if he

21 takes it out, with having edited and toned down and emascu

22 lated a strong Staff professional view.

- 23 You know, we have a lot of people around here who 24 think that those things ought not to be done. - - - /

ce-Federal Reporters, Inc.

25 COMMISSIONER GILINSKY: Well, he could easily have 27

sent both. And said, this is a memorandum, an internal mem

2 orandum that was sent to me, and. thes.e are the views of the

3 NRC, if you asked for our considered views.

- 4 CHAIRMAN HENDRIE: Well, I think that's a great

5 you know, we can sit here months after the event and say:

6 Well, we could have fine tuned, or Bob could have fine tuned

7 the actions and done this and this and this.

8 I must say it didn't seem all that clear at the

9 time, and

10 COMMISSIONER GILINSKY: Well, I mean in

11 (Simultaneous discussion.)

12 COMMISSIONER KENNEDY: I keep getting confused by

13 this very complex chronology which seem to have people acting 14 in several directions at the same time, overlapping, really.

15 Some people were doing one thing; others were doing another.

16 I mean, they were doing.it all at the same time. And it is

17 not clear to me that they were all talking to each other,

18 arid that applies to Commissioners as well as to Staff.

19 Now, I am looking at SECY 77-543, which is item

20 Qin this package. And it is my recollection that this was

21 brought before the Commission, and I am looking to see what

22 was decided in the matter.

- 23 The proposition that was put forward here was that

24 a letter from Mr. Smith be sent to Dr. Maullin, forwarding Ace-Federal Reporters, Inc.

25 an offer of assistance, and be a copy of this report, the 28

letter from Dr. Smith to Commissioner Gilinsky. And that was

2 brought before the Commission. And the Commission concluded

3 that a formal response to the request from Dr. Maullin was

4 probably inappropriate or unnecessary, at least, and that a

5 conversation between the Chairman and Dr. Maullin, offering

6 on an informal basis what ever assistance would be useful to

7 Dr. Maullin and the commission, would follow.

8 Isn't that correct?

9 MR. RYAN: That is correct.

10 COMMISSIONER KENNEDY*: Thank you.

11 MR. GOSSICK: And as you say in that

12 COMMISSIONER KENNEDY: So I am sure I understand

13 what happened.

14 MR. GOSSICK: in that paper also, although it

15 was after the fact on October 17th -- or at least that is the

16 date of the paper; I am not sure of the date the thing was

17 set down here -- we point out that the -- a report had been

18 sent to Senator Alguiest.

19 COMMISSIONER KENNEDY: Right.

20 MR. GOSSICK: and also that we understood that

21 Mr. Pollard had gotten hold of..it by them.

22 COMMISSIONER BRADFORD: Could I come back to

23 I just was thinking of something you said a moment ago;

24 you suggested that State Programs could have sent both; the Ace-Federal Reporters, Inc.

25 memo to you and then an expurgated form as a Commission

---

~-,-----------------,-----

29

position.

2 Would -- it would still have taken something more

3 than that to qualify asthe Commission's position.

- 4 COMMISSIONER GILINSKY: Oh,yes.

5 CHAIRMAN HENDRIE: Sure.

6 MR. GOSSICK: As I said

7 COMMISSIONER GI LINSKY: Well, :-I guess I am sur

8 prised that memoranda of this importance ar~ not brought to

9 our attention. I mean, a routine inquiry from a Congressman

10 certain would be.

11 And I think this is just as important. And I

12 don'.t think that the Commission would like its Congressional

13 mail handled in this way.

14

• MR. GOSSICK: I have *accepted that point, Com

15 missioner Gilinsky. I can assure you that if we get another

16 request for review of their second report or some such like

17 document from another state, you will know about it.

18 COMMISSIONER GILINSKY: Can I just ask you:

19 Why was the truncated version prepared in the

20 first place?

21 MR. RYAN: -Truncated is a perjorative term.

22 Commissioner. I don't know that it --

23 COMMISSIONER GILINSKY: Shortened version.*

24 MR~ RYAN: Shortened.

Ace-Federal Reporters, Inc.

25 (Laughter.)

30

First of all, we -- it might be well to read into

2 the record, the changes. And I think they are basically -

3 one line on the first page. The memorandum from Dr. Smith

- 4 to you said:

5 "This report was reviewed."

6 And that was changed along with the heading in the

7 shortened version to, "these reports were."

8 And then the next, the second sentence after that

9 deleted~

10 "Subsequent to the receipt of your request, Mr.

11 Lowenberg brought to the Staff's attention the minority corn

12 commission report on the interim report that he received

13 directly from Commissioner Pasternak. A copy of th~t minority 14 report is enclosed for your information."

15 When we were thinking of framing a special re

16 sponse to Senator Alquist, it didn't seem appropriate to us

17 to put in there that "subject to your request," presumably

18 Alquist, Mr-. Lowenberg brought the Staff's attention to the

19 minority commission thing.

20 I don't think there is anything corrupt or sini

21 ster about that delection.

22 If you go through the document, you will come to

- 23 -- the next change occurs on page 11, in other words, 10

24 pages are completely.

Ace-Federal Reporters, Inc.

25 And that consists of changing Woolrich, 31

W-o-o-1-r-i-c-h, to Willrich.

2 The next change --

3 COMMISSICNER KENNEDY: Presumably, that is a

4 matter of accuracy?

5 MR. RYAN: That is a" matter of accuracy.

6 The next change is

7 COMMISSIONER KENNEDY: Hopefully~

8 MR. RYAN: Yes. I we were right.

9 The next change is to correct the spelling of

10 solidification on page 13. It was spelled s-o-1-i-d-i-c-a-

• 11 t-i-o-n.

12 CHAIRMAN HENDRIE: How come you know how to spell

13 solidification and the waste treatment fellows don't?

14 MR. RYAN: I make no defense for my spelling,

15 Mr.** Chairman?

16 (Laughter.)

17 COMMISSIONER BRADFORD: Bob, I take it there are

18 some substantive changes?

19 MR. RYAN: It is the changes of consequence -

20 they are on page 13 through the end. And that material was

21 deleted.

22 I:t was deleted at the request of NMSS on the *

• 23 theory that it was internal matter, and basically, I think

24 that is a fair statement of what it is.

i..ce-Federal Reporters, Inc.

25 COMMISSIONER GILINSKY: Now, what did Mr. Alquist 32

take this to be; do you know?

2 MR. RYAN: I have no idea. I have had no com-

3 munication from Senator Alquist. I have never met the gentle

- 4 man, nor -have I ever spoken to him.

5 It wrote him a letter, the October 17th letter,

6 and I wrote him another letter at your request in December

7 saying that I wanted to re-emphasize that we were talking

8 about Staff views and not Commission views.

9 COMMISSIONER GILINSKY: You mentioned also that

10 somewhere along the way, a conversation with a San Diego

11 attorney, bringing the matter to your attention?

12 MR. RYAN: I mentioned that to you in my memoran-

13 dum of December 22nd.

- 14 COMMISSIONER GILINSKY: Which I think is not in

15 the chronology.

16 MR. RYAN: I believe it is.

17 COMMISSIONER GILINSKY: It is?

18 MR. RYAN: Or it was when I left on Wednesday.

19 MR. GOSSICK: Appendix T, attachment T; I believe

20 that is related.

21 MR. RYAN: Yes. I had a call ---by the way it

22 was not a call which I initiated,-- I had a call from a

- 23 Mr. Axlerod who apparently represents San Diego Gas and 24 Electric. I have never met Mr. Axlerod and I don1 t know

ce-Federal Reporters, Inc.

25 what he looks like.

33

And he said that he was curious to know what had

2 been sent to Senator Alquist by way of an attachment to my

3 letter.

- 4 And I told him, thinking I was accurate, that

5 Dr. Smith's memorandum of September 7th had to been sent to

6 Senator Alquist.

7 And he said: That's curious. I have been to the

8 public document room and I don't find that; I find a 12-page

9 or 13-page document.

10 And that was the first time that I knew --

11 COMMISSIONER KENNEDY: Whos is Mr. Axelrod?

12 MR. RYAN: He apparently represents San Diego Gas

13 and Electric. At least that is how he represented himself

- 14 to --

15 MR. GOSSICK: A Washington law firm.

16 MR.. RYAN: I went to the document room and dis

17 vered that the Smith memorandum had not been sent with my

18 letter, although I might say that in my file it was appended

19 to my copy of the Alquist letter, but rather, this abbre-

20 viated version had been sent.

21 That was not my intention. That was a clerical

22 error. More particularly, it was a mistake on my part be

23 cause I should have specifically checked the enclosures to

24 this document~ I didn't. I was on my way out of the town to Ace-Federal Reponers, Inc.

25 34

cover a meeting on behalf of Chairman Hendrie in Ohio that

2 week. And as I was leaving the office, I signed a document

3 which was the letter to Senator Alquist dated October the

- 4 17th. It had to be retyped for some reason; some spelling

5 error or something.

6 And I said to the Staff: Put Smith's memorandum

7 in this as an enclosure. And they said: Right. And appar

8 ently, it was not right. They misinterpreted my instruction

9 and they put in the abbreviate version.

10 I take full responsibility for that, because as I

11 say, I should have checked the enclosures. But as far as

12 I am concerned, there was nothing sinister or corrupt in

- 13 such a mistake.

14 COMMISSICNER GILINSKY: What is the current status

15 of this matter? I noticed we have gotten letters from both

16 sides of the California Commission.

17 MR. RYAN: I have -- yes; a letter was received

18 on -- well, some day last week from Commissioner*Pasternak.

19 MR. GOSSICK: January the 2nd--- no; I am sorry;

20 January 9th.

21 COMMISSIONER GILINSKY: January 9th.

22 MR. RYAN: He thinks it is a useful piece of

- 23 business.

24 CHAIRMAN HENDRIE: Well, like a lot of our mat Ace-Federal Reporters, Inc.

25 erial some folks hate it and some folks like it.

35

COM!:1ISSIONER GILINSKY: Are you intending to re-

2 spond?

3 MR. RYAN: I intend to respond to Commissioner

- 4 Veraninni, who has written me a letter. Right now --*

5 COMMISSIONER GILINSKY: Does the other letter not

6 call for a response?

7 MR. RYAN: I don't know. I haven't thought

8 about it, to tell you the truth. The first time I saw it

9 was on Sunday when I came into the office.

10 CO~.MISSIONER KENNEDY: To whom was it addressed?

11 Was it addressed --

12 MR. RYAN: It was addressed to me.*

13 COMMISSIONER KENNEDY: -- to you?

14 MR. RYAN: Yes.

15 MR.. RYAN:. The staff of NMSS is now looking at the

16 technical enclosures to Commissioner Veraninni's letter of

17 December 22nd, t believe, to give us some advice on the

18 nature of those *comments.

19 I intend to reply to Commissioner Veraninni,

20 and I intend to tell him that it was not my intention in

21 any way to intrude into California politics, that it was*. in

22 fact my understanding that the California Energy Commission

23 had received this paper in September and sending it.to

24 Senator Alquist was not a "brazing" attempt -- I forget the Ace-Federal Reporters, Inc.

25 words of Commissioner Veraninni, but somehow to intrude 36

into California politics.

2 I. do intend to reply to Commissioner Veraninni.

3 COMMISSIONER GILINSKY: Well, I have got a 12:30

- 4 appointment, but I would like out of this experience to come

5 some set of guidelines on how we deal with requests of this

6 sort.

7 I think we ought to rethink.

I 8 MR. GOSSICK: Obviously, we have. to use judgment,

9 Commissioner Gilinsky. I don't think you are suggesting that

10 all mail from all state legislators be

11 COMMISSIONER GILINSKY: No; no; no; nothing of

12 the kind.

13 MR. GOSSICK: -- forwarded up here.

14 COMMISSIONER GILINSKY: But this is not just a

15 MR. GOSSICK: No; I understand. I understand.

16 And I said I have accepted the fact that we could have used

17 a little *greater sensitivity in recognizing that there was

18 a delicate, or possibly controversial subject here.

19 COMMISSIONER KENNEDY: Could I ask.if one could

20 hypothesize dealing with Senator Alquist's request in a

21 different way, and if so, what would it have been?

22 I.have asked myself: What would one have said t6

- 23 Mr. Alquist. One could start out by saying:

24 "

Dear Mr. Alquist:

O..ce-Federal Reporters, Inc.

25 "It was nice of you to write, but

37

we are not going to reply."

2 I doubt that that would have been considered among

3 the more responsible courses that a federal agency charged

4 with advising people in the world on matters concerning health

5 and safety of nuclear power. I think Senator Alguist could

6 expect some general views from us.

7 Now,.how could we have responded -- I am asking

8 this as instructive to me thinking about the guidelines which

9 Commissioner Gilinsky is speaking of.

10 What could we have said? How could we have done

11 this somewhat better?

12 MR. RYAN: I have n.o idea.

13 DR. SMITH: You know, when I look at this,.it

14 seems to me that what really happened is the fagt that an

15 intra or an internal memo that was to serve one': purpose; that

16 is, to inform Commissioner Gilinsky that basically the Staff

17 felt that they could build upon it or edit it to serve an

18 other purpose and therefore, save some time.

19 I was not --

20 COMMISSIONER KENNEDY:'*: But it was a memo that had

21 been made available in any event --

22 DR. SMITH: Yes. Well, I was --

23 COMMISSIONER KENNEDY: in another way to the 24 public. -

Ace-Federal Reponers, Inc.

25 DR. SMITH: I think that 38

COMMISSIONER KENNEDY: Right? You know, that is

2 a fact.

3 DR. SMITH: Yes; that is something that I found

4 out myself after the fact. In fact, most of the things that

5 I have found out were aft~r, because I wasn't involved with.

6 the editing or any of that.

7 COMMISSIONER VILINSKY: Did you know of this memo

8 being used to reply to

9 DR. SMITH: No, I did not.

10 COMMISSIONER GILINSKY: Senator Alquist.

11 DR. SMITH: No.

12 Once I signed off on the memorandum to you, in

- 13 effect, Commissioner, I guess you could say I was out of the

14 picture until you called me and said that you had some con-

15 cerns.

16 I was just saying that in retrospect, as Mr.

17 Gossick said, you know, that what we probably should do in

18 the future, if it came in again, knowing what we do now, is

19 to look at our response to that senator from the standpoint of

20 an NRC position in which the report, the language is factual.

21 What was prepared and what I signed off was a

22 very was just simply internal from the Staff to you.,

- 23 COMMISSIONER KENNEDY: But certainly you would not

24 describe as not factual.

Ace-Federal Reporters, Inc.

25 DR. SMITH: Oh, it was factual, but we also, you 39

know, some of the language in there was our own view. In

2 other words, it got beyond the realm of just simply facts

3 or purely technical.

- 4 When I looked at it, I.felt that at the time

5 that it was important for the Commissioner to know about it,

6 to really get the Staff's candid view.

7 COMMISSIONER BRADFORD: I would hate to have you

8 change your mind on that. I mean, not--*

9 DR. SMITH: No, I am not talking about -

10 CHAIRMAN HENDRIE: Peter, it is a useful point,

11 because _if you say -- if we sit here and say that the Staff

12 should either have never allowed itself to write fairly hard

13 hitting and candid commentary as in the best judgment of the

• - 14 people who did it, saw in their best judgment that they 1.5 ought to write it; I can't see any difference between that

16 and sitting here and saying to this revi.ewer on some reactor

17 license: Now, tone it down, fella; don't call it like it is,

18 as you see it as a competent and responsible professional.

19 And if that were the'issue before the house, you

20 know, I would be pounding the table and saying: Call it

21 like it is.

22 And I think when the~e things come out, the other

- 23 sort of the mirror image, you have to accept that.

24 COMMISSIONER GILINSKY: I think we have to dis-Ace-Federal Reponers, Inc.

25 tinguish between releasing the doc_uments, which is proper, 40

and the Staff* holding to its vi.ews, which is proper, and these

2 views being conveyed in a manner that lends itself to be

3 thought to be (inaudible) organizations use.

4 CHAIRMAN HENDRIE: Vic, I agree with you, but

5 Ryan wrote to Senator Alquist and said:

6 "The review conducted by a number of

7 individuals on the NRC Staff at the request of

8 Commissioner Gilinsky is now complete. I apolo

9 gize*for taking so much time."

10 And so on and so.on.

11 I think we are all pretty sensitized now out of

12 this affair so that in subsquent -- any similar subsequent

13 c6mmunication down the line, there will be a very substantial 14 reiteration that this is a view from several professionals

15 on the Staff and doesn't represent the agency position or

16 the Commission position.

17 But I really find it very hard to find that the

18 language he used in the transmittal was calculated to mis

19 lead people into thinking this was an agency position.

20 Now, they --

21 COMMISSIONER GILINSKY: Wel*l, I didn't say cal

22 culated to mislead.- I send, "lent itself to misinterpra-

- 23 tion."

24 CH.AIRMAN $:ENDRIE: I think unfortunately that*is Ace-Federal Reponers, Inc.

25 the nature of the world in which we have to work now, and I 41

agree with you.

2 I think, as I say, that we will careful down the

3 line.

4 MR. RYAN: Your exact phrase, Commissioner, was:

5 "There is the appearance of members of

6 the NRC Staff offices having allowed themselves

7 to be used by San Diego Gas and Electrict Company

8 to influence public opinion in California on the

9 question of whether the proposed Sun Desert Plant

10 should be exempted from the California moratorium

11 on nuclear licensing.

12 "It also appears,that the NRC Staff members

13 may have been improperly involved in* California 14 politics and California decision-making. The matter

15 needs to be cleared up."

16 And it is headed, "The Meeting on Possible Im

17 propriety on the use of NMSS' Analysis of California Energy

18 Commission Interim Report on.Reprocessing and High Level

19 Waste Dispo~al."

20 COMMISSIONER GILINSKY: That's right, and I was

21 reacting to newspaper articles on California.**

22 MR. RYAN: May I make a br'ief statement,

- 23 Commissioner?

24 (Pause.)

Ace-Federal Reporters, l_nc.

25 CHAIRMAN HENDRIE: I think, since we are a minute 42

off 12:30, Bob; fairly brief.

2 MR. RYAN: Well, I regard it as a serious matter.

3 I affirm to you, Commissioner and Mr. Chairman, that there has

- 4 been no impropriety as far as I am concerned, or my office

5 has been concerned, in this matter.

6 I have not had improper, nor has anybody at my

7 office, had improper contacts with the California Legislature,

8 the California utilities, the California Energy Commission,

9 or anyone else. I would like that to be stated.

10 COMMISSIONER KENNEDY: I accept it.

11 Let me if I may; I would like to make one note.

12 I think that you said it well, Mr. Chairman. It is the

13 world in which we live. I would suspect that all the dis

14 claimers in the world notwithstanding, that to the extent that

15 we provide any Staff advice to anyone, sooner or later it is

16 going to appear in the newspapers, or in the trade journals,

17 I would note, as NRC Staff or_ NRC official views.

18 And I submit that the public is not going to make,

19 all the disclaimers notwithstanding, that superb distinc

20 tion between the official views of the Nuclear Regulatory

21 Commission and what ever it was the newspaper just called

22 them.

- 23 That is a fact of life. It seems to me the choice,

24 then, is whether we respond to what I believe to be legi Ace-Federal Reporters, Inc.

25 timate requests for advice and information from technical 43

people, qualified, superbly so, to provide it, at the risk

2 of a variety of charges from time-to-time; or accepting that

3 risk and doing what I believe to be among the charges af

4 forded us by the Congress.

5 CHAIRMAN HENDRIE: Peter, comment? And then I will

6 give Vic the last word.

7 COMMISSIONER BRADFORD: One quick footnot~ to your

8 opening statement, and I guess what I ought to just note

9 in the record, is that I was at that same meeting part of

10 it,,.anyway, that you had and have no recollection of the

11 documents we discussed. But I wasn't at all of it.

12 Other than that, I guess -- the point has been

- 13 said, there is no need for me to reemphasize it, regarding

14 that you need to touch base and that -- to make clear what

15 is and isn't a Commission position.

16 Beyond that, just the point that I started to pur

17 sue, which is that I would hope that this meeting didn't~

18 have the effect of watering down in any way the assessments

19 from any of the offices involved, for that matter, offices

20 that weren't involved in this one, but matters referred to.

21 MR. GOSSICK: I would hope not, Commissioner, but

22 I must say I in somewhat doubtful that it may not have some-

- 23 impact.

24 COMMISSIONER BRADFORD: Let me just ask, then:

Ace-Federal Reporters, Inc.

25 What do you think is necessary for it not to have

I J

47

without being

2 (Laughter.)

3 COMMISSIONER GILINSKY: I assume you will stick

4 this in the public document room.

5 MR. RYAN: Yes, indeed.

6 CHAIRMAN HENDRIE: Okay.

7 I think Vic has to go and we will call it to a

8 close.

9 I want to make clear before,-~lease before you

10 go and the meeting breaks up that for myself, I regard the

11 outcome of this briefing as not supporting any sort of charge

12 of improper conduct. You have accepted responsibility, ap

13 priately for getting -- you know,the office got.the wrong

14 thing in the envelope, and so on.

15 I think that is fair, and I think we all recognize

16 the need to be sensitive to this sort of a situation. But

17 if there has been left a lingering trace that you or other

18 members of the Staff have been accused of doing improper

19 things, let me say on my own -- for myself, that I do not

20 believe that is the case.

21 MR. RYAN: Thank you, Mr. Chairman.

22 COMMISSIONER KENNEDY: I would accept that, Mr.

- 23 Chairman.

, 24 (Whereupon, at 12:38 p.m., the meeting on the

~ce-Federal Reporters, Inc.

25 above-entitled matter was adjourned.

44

that impact? Some clear understanding, presumably of how

2 the material be used and what the format should be for its

3 subsequence release.

4 MR. GOSSICK: Well, I think, you know, it ought

5 to start at the very beginning of the process when we are

6 asked to perform such an analsysis involving a lot of

7 Staff time, by the way, -- or any kind of a safety review

8 of some controversial matter that we, whether it is from one

9 of the Commissioners or from some outside source, such as

10 in this case, that we ought to be very clear as to where we

11 are going when we start this thing.

12 And whether we do give it something than a full

13 works in all treatment, that obviously the Staff did in this 14 case, or whether circumstances warrant some other kind of

15 treatment such as the Chairman pointed out, you know, the

16 options that one might have considered: We don't respond

17 at all or we do or some middle ground.

18 I think it has to be sort of done in*the beginning,

19 before you start responding, rather than trying to fix up

20 something later on.

21 DR. SMITH: I don't know if there is an answer to

22 your question, Commissioner Bradford, really, because in the

23 atmosphere that we are in right now, as already has been dis

24 cussed briefly, the Staff is going to find itself contin Ace-Federal Reporters, Inc.

25 ually involved in having to review situations which are highly 45

political, if I can use that word..And the Staff also oper

2 ates knowing that what ever they do can be and probably will

3 be subject to a Freedom of Information Request.

4 Anq I suppose that one just has to go ahead and

5 call it as he sees it and make sure what ever he says is

6-factual.and that he is willing to stand behind it. And that

7 certainly has been my charge to my staff and will continue to

8 be.

9 But, you know, subconsciously how ~ey feel is

10 something else.

11 MR. RYAN: On my par~, Commissioner, I.think that

12 this exercise will have a chilling effect upon the Staff and

• 13, its ability to deliver candid comments, because of the ac 14 cusatory, at least the appearance of accusatory memorandum

15 and sug.gestions of improprietary and what to the Staff ap

16 pears to the Staff to be a pretty straightforward piece of

17 business.

18 I don't know how to avoid it, either.

19 COM.MISSIONER BRADFORD: I take it, though -- Let

20 (inaudible) some precision, that that problem doesn't focus

21 on the original preparation of the memorandum.

22 MR. RYAN: I think it will in future times. I

23 think of NMSS Staff were asked to make candid comments on a

24 similar report in the future, they would not be as candid as ce-Fede_ral Reporters, Inc.

25 the comments which were contained in the report from 46

Dr. Smith to_Commissioner Gilinsky*of September 7th.

2 DR. SMITH: I hope you are wrong on that, Bob.

3 MR.. RYAN: I hope I am wrong, too. I have stated

- 4 a belief.

5 DR. SMITH: And I would

'6 MR. RYAN: Obviously --

7 DR. SMITH: And I certainly would say to my Staff

8 and there are some of them sitting now who were involved,

9 that I will continue to want their candid views. I don't

10 want to reopen the issue. I don't think that it is the

11 candid so much as that -- that it caused the problem, but

12 something that was written for one purpose somehow or another

13 we got off on another tack with it, and then that is where 14 the trouble lies.

15 COMMISSIONER KENNEDY: But you cannot write, am

16 r correct, you cannot write two different papers on the same

17 subject for different audiences. That is the point I was

18 trying to make earlier.

19 MR. RYAN: You can, but one of them will be (in-

20 audible).

21 COMMISSIONER KENNEDY: Of course.

22 MR. SHAPAR: I think _the next time the Commission

- 23 COMMISSIONER KENNEDY: Or be seen to be.

24 MR. SHAPAR: I think the next time the Commission ce-Federal Reporters, Inc.

25 asks for my candid views, I will give them my candid views