ML22230A122
| ML22230A122 | |
| Person / Time | |
|---|---|
| Issue date: | 10/11/1979 |
| From: | NRC/OCM |
| To: | |
| References | |
| Tran-M791011 | |
| Download: ML22230A122 (80) | |
Text
RETURN TO SECRETARIAT RECORDS NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
PUBLIC MEETING DISCUSSION OF DRAFT POLICY STATEMENT ON COMMISSION PARTICIPATION IN LICENSING ACTIONS Place - Washington, D. C.
Date - Thursday, 11 October 1979 Pages 1-78 Telephone :
(202) 347-3700 ACE - FEDERAL REPORTERS, INC.
Offici,al Reporter3 4.44 North Capitol Street Washington, D.C 20001 NATIONWIDE COVERAGE* DAILY r
1
.,loom/wb UNITED STATES OF AMERICA 7622 2 NUCLEAR REGULATORY COMMISSION 3
4 DISCUSSION OF DRAFT POLICY STATEMENT 5 ON COMMISSION PARTICIPATION IN LICENSING 6 ACTIONS 7
8 Room 1130, 1717 H Street, N.W., ;.
- 9. Washington, D.C.
10 Thursday, 11 October 1979 11 The Commission met, pursuant to notice., beginning
- 12 13 14 at 9:30 a.m.
BEFORE:
JOSEPH M. HENDRIE, Chairman, 15 VICTOR GILI.NSKY, Commissioner r 16 RICHARD KENNEDY, Comm.;Lssione.r, H PETER A. 'BRADFORD, Commissioner, 18 JOHN F. AHEARNE, Commissioner.
19 ALSO PRESENT:
20 Leonard Bickwit, Esq.
Stephen s.ostrach, Esq,
- 21 22 Martin Malsch, Esq ..
Lee Gossick, Robert Lazo, Esq.
Alan Rosenthal, Esq.
23 Howard Shapar, Esq~
\
24 Ace-Federal Reporters, Inc.
25
2 ebl
- 2 P R O C E E D I N G S CHAIRMAN HENDRIE: Why don't we start the meeting
- 3 4
5 and get the transcript rolling?
The Commission meets this morning to continue its discussion of procedures for Commission review of license 6 applications. There was a meeting a week ago today on this 7 subject when we discussed (a) an Interim Policy Statement which 8 in fact has gone out and (b), the oUtlines*of a policy state-9 ment on Commission participation i.n licensing a.ctions. We 10 argued back and forth over some proposed options and alterna-*
ll tives and seemed to come rather decently to agreement, not 12 total to be sure, but general agreement, on a Commission parti-13 cipation procedure.
14 We directed the General Counsel, with the help of I 15 the Appeals Board members and so on, to draft that up.
16 We have the Counsel's draft policy statement back.
17 It came to 'US yesterday. I got mine at about 2:00 in the 18 afternoon, and we meet this morning on it.
19 Len, perhaps you'll march us through the draft and, _,
20 Commissioners, please' make comments, ask questions, arid argue 21 the points as we go along.
22 MR. BICKWIT: Fine.
I'd like to proceed by flagging issues for you that 23 24 we feel need some additional explanation 1) letting those that Ace-Federal Reporters, Inc.
25 we feel don't simply sit.
3 On page 2, the first full paragraph that starts 2 with:
3 "The Commission has now determined that, 4 until further notice, adjudicatory proceedings con-5 cerned with such new licensing action will be con-6 ducted as described below."
7 We have not come to grips with one particular prob-8 lem that this sentence and perhaps some others raise. It's 9 clear to us that you don't want to apply this procedure where 10 the license* is already issued. It is also clear to us that 11 where neither a license nor an initial decision has issued, 12 you do want to apply this procedure.
13 What we are not entirely clear on is what happens 14 where a decision has been issued but no license has been issued.
15 COMMISSIONER AHEARNE: Can you give an example?
16 MR. BICKWIT: The only exampie I know of is North 17 Anna. There may be others. But my understanding is that this 18 particular problem is restricted to-the North Anna situation.
19 I should remind everybody that we are now talking 20 about a specific case if that is the circumstance.
21 What we would suggest is that you not apply this pro-22 cedure to matters under review by the Appeal Board in that case 23 but that you recognize that the license cannot be issued under 24 your previous policy statement by the Staff without further Ace-Federal Reporters, Inc.
25 action of the Commission. Just what that means is something
4
- eb3 2
that we will have to address later in this meeting, that that be the protection that the Commission has and that you not I
- 3 4
5 feel the need to. get additional protection by applying the entire procedure to the current Appeal Board review.
If that recommendation is accepted, to make clear 6 that that's the way you would go, we would suggest this altera-7 tion. Where i t says:
8 "The Commission has now determined that, 9 until further notice, adjµdicatory proceedings con-10 cerned with such-new licensing actions will be con-11 ducted .*. "
12 Instead of "concerned with such new licensing 13 actions" the words would be inserted: ", * , . adjudicatory 14 proceedings which have not, as of the date of this statement, 15 resulted in a complete initial decision by a licensing 16 board."
17 COMMISSIONER AHEARNE: You're saying North Anna is 18 the only case in which a licensing board .has made a decision 19 but the appeal board has not?
20 MR. BICKWIT: Where the licensing board has made a 21 decision and fio., license has issued.
22 COMMISSIONER GILINSKY: What would you do in un-23 contested cases?
24 MR. BICKWIT: We reach that at a later stage in Ace-Federal Reporters, Inc.
25 this paper. And you're going to have to resolve that. We
5 WR.wbl haven't had substantial guidance on that question.
2 What you have done is, youtve said in uncontested
- 3 4
5 OL cases, no license will issue without further action of the Commission. I suggest you take up that whole question of what "further action of the Cornmission 11 means when we reach. that 6 stage in this particular paper.
7 You will have to decide whetb.er that means affirma-::-
8 tive action by the Commission, check,,...off by the Commission, 9 or whatever.
10 COMMISSIONER GILINSKY:: What is 11 ch.eck-off? t,-
11 MR. BICKWIT: Well, what it means, in my own mi:nd,.
12 is the procedure that you used where it was up to the. Staff 13 to determine that. Davis-Besse or Rancho Seco was to go bac~.
14 up, but that when the staff came. in and briefed you th.er*e.
15 would be some discussion. A.nd it did not, in those cases, 16 involve an affirmative decision by the Cornmissi:on to bri.ng 17 those plants up, but i t was understood rath.e~ clearJ,y tha,t the 18 staff was not going to bring those. plants up if th.e Comm.iss.t.on 19 indicated some displeasure with doing soL 20 COMMISSIONER GILINSKY: '
1 Check ..... off 1' seems to carry
- 21 a sense of the Commission not doing anything, just checking a 22 box. That's why I object to i t every time it is raised.
23 MR. SHAPAR: Doesn "t the policy statement say,.
24 if my memory serves me correctly, that the. staff won 1*t issue.
Ace-Federal Reporters, Inc.
25 any licenses without further action of th.e Commis*sion7
6 ywb2 MR. BICKWIT: Yes. And as to what that means, I 2 suspect different people have different concepts.
- 3 4
5 COMM:ISSIONER GILINSKY:
kinds df actions~ but inaction is ~n action.
COMMISSIONER KENNE.DY; Well th.ere could be various I. 'm deLi.gh.ted to hear that 6 because it must be clear that I certainly agree with_ it *.
7 COIYIMISSIONER GILINSKY z We 're going to pocket that~
8 MR. BICKWIT: There are case holdings,. or court 9 holdings that say inaction is action.
10 COMMISSIONER AHEARNE.: Pardon me for continuing ll to try to understand, but--
12 13 14 COMMISSIONER KENNEDY:
thought he said it was action.
it. I certainly agree with the courts~
That's what he said.
That s why I. was ag;r;.e.eing with Their wisdom has never I
15 been a doubt in my mind.
16 COMMISSIONER AHE.A,RNE; So you l;r;e saying this* would 17' app'ly only to North Anna because tha.t I s the. only case tha.t 18 of-- what kind, now?
19 MR. BICKWI.T: The only cas.e th.a, t r kn.ow of ~-~ a,n.d 20 I would like to hear the boards contradict tbat if it i.s
- 21 22 wrong.
MR. LAZO; I. bel:L.eve you 1:,re qt1,i.te. co:i:;-*;r.ect; it t 9
- 23 24 Ace-Federal Reporters, Inc.
25 the only case.
MR. BICKWIT; decision has been
. It \*s th.e_ only case whe;r;,e. an inJtia,l is .sued but a license h.as. not bee.n. i.ssue.o ._
7 COMMISSIONER AHEARNE: An initial decision has 2 been issued.
3 Now are there cases where an initial decision has 4 been issued and the appeal board still has it under considera-5 tion?
6 MR. BICKWIT: Yes. But the license has issued *.
7 And I assume the Commission doesn 1*t want to apply that to those 8 situations.
9 COI1i.MISSIONER AHEARNE.. : I see ..
Well, can I ask the status of North Anna as far 11 as the appeal board is concerned?
12 MR. ROSENTHAL: Th_e a,ppeal boa;rd ha,s si.gn_ed off 13 on all matters .in that case except fo;i:;-, two~ The.se were safety 14 issues, one relating to purnphouse settlement,._ the otheJ; 15 relating to the probability th.a.ta. turbine. missile would hit a 16 vital safety structure. Those* issues were rai.sed by the.
17 appeal board sui sponte during its review.. There was no appe.al 18 taken from the licensing board '*s decision *.
19 The appeal board, heJ,d ;itse.lf an, eviden_tiary be.a,t;:,in.g 20 on those two issues in June. Quite recently the proposed 21 findings of fact and conclusions of law from the parties we;i::-e.
22 all received. And the board de.c;i:ded that case and it now i.n.
23 the process of preparing its decis.:j:,on.,
24 CDMMISSONER AHEAR.N:E.: Thank, yo.u ..
Ace-Federal Reporters, Inc.
25 MR. BICKWIT: Without obJecti.on. we 1' 11 a,dopt thJl?
8 language which will clarify that position.
2 COMMISSIONER AHEARNE: That would then move the 3 North Anna case over until a clarification of what"further 4 action by the Commission" means?
5 MR. BICKWIT: Right. It will be treated as an 6 uncontested license.
7 COMMISSIONER AHEARNE: On that same. pager could I 8 ask a further question?
9 I have a little problem with your th.ree reasons.
10 I would prefer to strike the first one and only use the second 11 two. Because, at least in my mind, .;i.t's a combination of the 12 second two, and the first is not re.ally a relevant issue.
13 MR. BICKWIT: I have no problem with that~
14 CHAIRMAN HENDRIE: I don ':t either.
15 COMMISSIONER KENNEDY: I don '.:t ei.th_e.r,. But th.a, t :j:s 16 not consistent with my memory of the discussion .. But i t 17 doesn ~-t make any difference.
18 MR. BICKWIT: On page 3 J: s.trnply want t.o point out,.
19 at the top, that what we. are. doing h.e.:re. is :rulemakin.g-; that 20 what one can do by rule one can only undo by rule.~ I guess 21 there are caveats to that, however.
22 Thus , what we are. doing t.s a.;rnen.d.;i:ng th.e. rule 2 .. 7 6 4 ,.
23 and wetre do.;i.ng i t -- we.t*re making that amendment effe.ct;tv,e.
24 immediately.
Ace-Federal Reporters, Inc.
25 We t:re. mak.ing two fin.dings here whi.ch allow th.e.
9 w/wb5 Commission to do that. One is that this is a non-substantive 2 rule of practice that gets you out from under the requirement 3 for notice and comment.
4 COMMISSIONER KENNEDY: Are we just saying that is 5 the case, or is there genuine justification to suggest under 6 the rule and precedent that that in fact is true?
7 MR. BICKWIT: I 1 d say that there :is.. But I would 8 say it is fuzzy. It is clearly a rule of practice in the sense 9 that it is part of Part 2 of yo~r Rules of Practice. As to 10 whether the APA means all rules of practice by its use of the 11 term "rules of practice" is not entire.ly clear to me.. And
- 12 13 14 since this profoundly affects substantive rights it is-:-..-.
question.
COMMISSIONER KENNEDY:
Clearly it does, Tha,t ,. S the reason for my 15 MR. BICKWIT: Ye.s. Fo;i:;- tha,t re.a,son. we. su9ge.st 16 that you say both that it is a rule of practice "'.,..._ which it 17 is -- and, secondly, tha,t you mak.e th.e. finding in case a court i8 would hold that it was not a rule of practice with.in th.e. me.an°"
19 ing of the APA, while admitting it's a rule of practi.ce. w.;ith..;i::n 20 the. meaning of our rules, that you also make. the. finding tha,t
- 21 22 it would be contrary to publ.;i...c interest to have notice. and, comment.
23 COMMISSIONER. KENNEDY; Before. you get to th.e public 24 interest question, i t is deicribing i t as a non-substantive Ace-Federal Reporters, Inc.
25 rule of practice--
10
.wb6 MR. BICKWIT: I think thatls a good point. I 2 would be more comfortable with that word out.
- 3 4
5 come out, too.
- MR. SHAPAR: I think ,the word "internal should I don't think that's accurate~
COMMISSIONER KENNEDY; I would not think so e.ith.er
- 1.175 6 COMMISSIONER AHEARNE: Len, you have already put it as 7 a difficult situation. I would be hard to defend calling it 8 significantly affecting the substantive rights but being non ....
9 substantive.
10 MR. BICKWIT: That's ;right._
11 COMMISSIONER KENNE.DY; That \*s the ;re.ason for my
- 12 13 14 question.
So we're striking th~ words "internal" and "non-substantive;" is that correct?
15 MR. BICKWIT: Okay. We strike "non-substantive".
16 COMMISSIONER KENNEDY: Howard su9gests II internal *. "
17 And it seems to me he also has a point.
18 MR. BICKWIT: I don't understand the point.
19 MR. SHAPAR: Well i t obviously affects thi.rd 20 parties, arrl referring to it as an internal rule I th.ink .:t.s:
- 21 22 somewhat-- Isn't it a term of art, though, in the A.PA, of procedure?"
1'-'rules
- 23 24 Ace-Federal Reporters,_! nc.
25 MR. B_ICKWIT: Practice. and px;-,oce.dure.*
I. have no problem with striking .'\t.nte.rn.a.l .. t~
Now with respect to-~- We ta .ta,lke.d a,bout exce.ptJ.on.~
11 from the requirement of notice and comment. The APA also 2 requires that final rules be published and not made effective 3 for thirty days. And the contrary to the public interest 4 finding will also allow you to come out from under that 5 requirement, as well as the requirement for notice and comment.
6 At the bottom of page 3-..,..
7 COMMISSIONER AHEARNE; Will you expla,tn wh.at you 8 mean by that sentence?
9 MR,. BICKWIT; Th.at sen.tence.? Ye.s ..
10 We tre acknowledging some.thing th.a,t was. ackn.ow, 11 ledged at th.e previous meeting, which. i:.s that the Commission.
12 contemplates some changes in th.e substantive re.qui:rement.s to 13 be. imposed on licensees, but that most of thos-e. ch.ange.s can be 14 done through interpretation of th.e. rule.s. rath.e~* than. thr*o-q<;rh 15 changes in the rules. And we. a:re ma,k;ing the. s.tatement that in 16 the. future we expect our rules to be. i.nte:rp:re.ted somewhat d.if, 17 ferently than they have been in the. past.
18 In many cases the rule.s a:re. extreme.iy vague...
19 COMMISSIONER, KENNE.DX:; But we. are. the. ;inter-prete.rs.
20 of the rules.
21 22 COMMISSIONER, KENNED):; we. are. saying* th.at thexeJo;:i;-,e 23 we will be interpreting th.em d.t.fferen_tly th.an. we have .;i*n th.e_
24 past. We. are serving notice on th.e publ,.;Lc th.at th.at is th.e.
Ace-Federal Reporters, Inc.
25 case.
12 MR. BICKWIT: And on the boards.
2 COMMISSIONER KENNEDY: And on- the boards; right.
3 MR. BICKWIT: We're suggesting the boards do that 4 so that we won*t have to completely undo what--
5 COMMISSIONER AHEARNE.: You \re ask.ing the boards to 6 give consideration to the implication th.ose regulations arid".'".,..-
7 I assume there is a preposition missing.
8 MR. BICKWIT: Yes, for. '.l-9 COMMISSIONE.R AHEARNE.: You \*re asking th.em to give 10 consideration to the implica, t.;ions, so you' re a,sking the boa,rds 11 to draw their own conclusions as to what those implications
.220 12 would be. Is that another way of saying that the boards 13 should feel themselves not bound to previous interpretations 14 of the regulations?
l 15 MR. BICKWIT: That~s what it is meant to say._
16 The next sentence goes further, it goes beyond th.at and says the boards should not feel obligated to issue. a 18 license when i t finds that all the r~gulations have been met,.
19 You have a number of appeal board decisions which, 20 if followed, would require the issuance of a license whenever 21 a determination was made that the regulat;i;ons- wer-e met~.
22 COMMISSIONER KENNED1; I want to be. sure tha,t we.
23 understand the import of that sentence, and so I would l:tke. to 24 read it.
Ace-Federal Reporters, Inc.
25 itrt should be und~stood tb.at as a re.s*ult
13
./wb9 of analyses still under way the Commission's regula-2 tions and regulatory policies may be further changed 3 and thus compliance with existing regulations may 4 no longer be sufficient to provide reasonable assur-5 ance that the public health and safety will be ade-quately protected. 1' 6
7 That, it seems to me, has definite relevance to 8
all existing licenses. And the question is: Is that what we 9 intend to say in this document?
10 COMMISSIONER AHEARNE: Why did you not, Len,. say ll "may no longer be sufficient to warrant approval of the license
- 12 application?"
13 MR. BICKWIT: I would ha,ve: no problem with 14 phrasing it that way. Th.e understanding is* th.a.t th.e reason 15 it would not is that a finding of adequate. prote.cti:on would not 16 be possible.
17 . CO.r,,".iMISSIONER, GI.LI.NSKY: Well we have continually 18 upgraded standards for licenses over the years. rt '*'-S th.e same 19 problem we face every time you add anoth.er requirement ..
20 COMMISSIONER KENNEDY: I understand that ..
21 CHAIRMAN HENDRIE: But we don 1 t normally issue th.is 22 kind of a statement.
23 COMMISSIONER, KENNEDY: Nor do we say all acti:.on.&
24 in the past have been inadequate. to protect the public h.e.alth.
Ace-Federal Reporters, Inc.
25 and safety. And i t seems.tone that 1*s the implicati.on of the
14 statement. I just want to be sure we understand what wetre 2 saying. I may be misreading it, but i t seems to me that that's 3 the way it can be interpreted. And we need to understand what 4 i t says and what i t is intended to say.
5 COMMISSIONER GILINSK.Y: Well the law speaks of the 6 adequate protection of the public health and safety, And to 7 get over that line has required more in recent years than it 8 did in past years.
9 MR. SHAPAR: I think th.ere ts a lot of cases that 10 say, appeal board cases and others that say that if the applica 11 tion demonstrates that all the. regulations have been m_et th.e.
12 license must issue. Now this is a departure from that.
13 MR. ROSENTHAL: I didn l t read i.t as such .*.
14 I thought what it was saying was that the existing re.gulattons-15 and regulatory policies may pe. changed.. If th.ey are changed.-.'<:'-
16 COMMISSIONER KENNED¥; Th.a,tt$ the. fir.st part ..
17 MR. ROSENTHAL; Then. .t.t says., ... and thus *** "
1 18 nThus. '. So i t ties with the first part. " .** compliance 19 with existing regulations may no longer be sufficient 20 to provide reasonable assurance.~."
21 If you read it with the word l\thus in th.ere., at 22 least as I read it, it was not al teri~g the appeal board l*s 23 line of deci_sions that the regulations .,...,..that compliance with 24 whatever regulationsf or regulatory polic.;i.e.s are. in effect at Ace-Federal Reporters, Inc.
25 the time, is sufficient to warrant issuance of a license.
15
.wbll I read this to suggest that there may well be changes in regula 2 tions and regulatory policy, and thus compliance with existing
- 3 4
5 regulations may no longer be sufficient, etc, And that would be perfectly consistent with the appeal board \*s* line. of cases, because the appeal boards have always re.cognized that the.
6 standard in determining reasonable assurctnce is the re.gu,la,tions 7 and regulatory policy that exist at the time that th.e ma.tter 8 comes to the appeal board, and that th_e.$e. a.l'.'e. a.J,wa_ys subj act 9 to change from time to time,.
10 CHAIRMAN HENDR,IE; Al,an, wou,ldn tt you get wh.epe. you, 11 want to go -- which is to, first, n.ote.. that, as a. re.sul t of
- 12 13 14 analyse.s still under way, the regulat:t:on.s and, policies ma,y* be.
further changed, . and then get iJW[\e.d:i.a te.ly to the. :re.sul t. by*
deleting from th~e on down to tha be.ginning of t.h.e. next 15 sentence?
16 The po;i.nt you ~re. ma.tJng is th.a,t l,icensing boc1;rds 17 are. to be alert for wha,t . they pe.r.ce.;i._ye. to be. close ca.11 18 situations, where they perceive. that inde.ed re.gulations may 19 change, and that therefore. oh the. particular point a,t issu,e 20 they are being asked to try to s:ignal th.a,t as a point for 21 consideration in the subsequent fast track appe.llate. l'.'e.view 22 and Commission thing. And I think you cou,ld just_ go for* the.
- 2-3 word changed'1 in the fourth line., put a period, ther-e.,. an.d 24 then start "The Commission expects tb-e. ltcensin.g hoards .. ,.~ *. ";
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25 COMMI.SSIONER. GILI.NSKY: Don \t we. ne.ed some. wor,d,s*
16
'i./wbl2 such as "substantial or nconsiderable in talking of these 2 changes in regulations? The regulations are continually being
- 3 4
5 changed.
years.
They have been changed for the past twenty.,,.five COMMISSIONER KENNE.DY: And there ha,s always been, 6 in that connection, decisions to be. made a,s to ba,ckf i tting 7 requirements.
8 COMMISSIONER AHEA.RNE: You mean make it 1'-sub-:--
9 stantially changed?"
10 CO~".iMISS I ONER GILINSKY: I don't know that ;Lt 1!S the 11 right word. But we are in a period where. the. rate. -of. change
- 12 13 14 is going to be. grea te.r than it w:as in the past *.
COMMI_SSIONER AHEA.RNE; COMMISSIO~ER GILINSKY:
11
- -SignJ:;Eicantly ..
Th.e.refore. one needs to 11 15 pay particular attention to these. decis.;ions. Be.cause otherw.:j:se .,..
16 COMMISSIONER AHEARNE.: .... ~we 're just pointing out 17 the obvious.
18 COMMISSIONER GI.LINSKY; .,...,..we. 1*re just pointing out 19 the obvious.
20 COMMISSIONER AHEA.RNE: Ye.s ~
- 21 22 MR. BICKWIT; Well, one qliestion. you ha,ve to con~
front is, Do you want the boards to be re.quj::r-e.d to issue. a 23 decision in the circumstance*where ftts pretty obvious to them 24 that . Commission policy _is changi~g or ha,s changed but ha,sn t:,t Ace-Federal Reporters, Inc.
25 reached the point of changing tb.e re.gula,t.tons?
17 I think it's a perfectly acceptable way to go, 2 either of those ways is a perfectly acceptable way to go.
3 We assumed that you.would prefer that the decision not be 4 issued in those circumstances. But if you want the decision 5 issued,and to change the policies on review as to the particu..,.
6 lar case, I se.e no problem with_ it.
7 MR. ROSENTHAL: You are hypoth.esiz~g, Len, a 8 situation in:which a Board wc.-uld conclude that wh.ileall 9 existing Commission regulations were :l;ully complied with 10 nonetheless it was not in a position to say that the construc.,..
11 tion and oper,ation of the reactor would provide. the reason..-
12 able assurance?
13 COMMISSIONER KENNEDY: Thatts what I thin.k. th.e.
14 sentence says.
15 MR. BICKWIT: That~s what it~-s meant to say._ A_nd 16 it is meant to-- I can see. why you re.ad it th.e way you did,.
17 Alan. But what it was designed to do was to overrule. those 18 appeal board decisions.
19 COMMISSIONER KENNEDY; What it seems to me it 20 does inevitably is to throw _the entire regulatory process into 21 a cocked hat. Now I fuink we ought to understand that that's wh t 22 we are doing, because thatts what it is *.
23 Am I correct, Alan?
24 MR. ROSENTHAL: Well I dontt know whether I would Ace-Federal Reporters, Inc.
25 have characterized it in those colorful words. But I: have,
18
-/wbl4 quite frankly, the same concern that you do.
2 I don't understand~-
- 3 4
5 COMMISSIONER KENNEDY:
MR. ROSENTHAL:
And so do your colleagues.
--how possibly an adjudication can be conducted on that basis, I mean, when the parties 6 to a licensing proceeding come before a licensing board they 7 have to have some idea as to precisely what the ground rules 8 are. And the_ground rules no\i on the safety side are fashioned
- 9. .in terms-of, or with reference to the outst.anding statutory 10 and regulatory provisions and any other kind of guidance that 11 the Commission may have provided~
12 Now if an applicant is at this poj_nt confronted 13 with the words, Well, sure, come. on in and tell us that your 14 application is in full compliance with all outstanding Com.-
15 mission regulations and directives, but that may not be enough,.
16 then some member of the licensi.~g board may de,c.;tde. the. Com-17 mission has been resti~g ori. its oars a.n.d the. Comm.;r.$.s.:Lon sh,ou,ld 18 have some additional r~gulatory requirement, and, even though.
19 it hasn (*t, the licensing board is_ go;tng to turn the application.
20 down. That's not adjudication. I mean, it may be something 21 else, but it is far removed from anything that I have ever 22 been led to understand falls in the realm of adjudication.
- 23 24 Ace-Federal Reporters, Inc.
25 MR. SHAPAR: Beyond that, I think there's an important point here *. If we look at the Commissiorlls purpose in setting this thing up, I thought the main purpose was to
.wbl5 give the Commission the last word, not *to say that th.e boards 2 would be implementing different regulations but that even if a
- 3 4
5 board makes a favorable decision, that the decision would be stayed until the Commission decided whether new requirements were met. I don't think the Commission, at least based on prio 6 discussions, meant to delegate that kind of authority to the 7 boards.
8 CHAIRMAN HENDRI.E: I.th.ink. that ~*s r:,Lght.. And that '*s 9 why I suggest again that one cures what se~ms to me to be a 10 difficulty by just deleting from the word cha~ged down to 11 the start of the next sentence, and to leave the admonition
-* 12 13 14 from the Commission to the licensing boards to pay particular attention to analyzing the evidence. on particular issues where they think there's a close call, since those are the ones that 15 are apt to be the subject of particular Commission attention 16 and very possibly further guidance and change in regs, and so.'.
17 on. And I thought that was what we wanted from the boards 18 rather than--
19 COMMISSIONER.GILINSKY: Would you keep the last 20 part:. of that sentence? Because the boards now have the
- 21 22
. power to--
CHAIRMAN HENDRIE: Oh, absolutely,. ThAt '"s* very
- 23 24 Ace-Federal Reporters, Inc.
25 important.
- ":r, .,
Yes.
~~,:...t MR. BICKWIT:
What was your suggestion?
CHAIRMAN HENDRI:E.;
~----------
Put a I?eytod ~fte+:' th.a word
20 w.wbl6 "changed" in the fourth line, and then delete from there to the 2 end of that sentence, starting again with. 11 The Commission
- 3 4
5 expects***" I and th.en go to the end of the paragraph.
MR. BICKWI.T; I have *no problem with. that.
But I would like a response to what has been said from this sid 6 of the table.
7 MR. OSTRACH.; Two points, Mr~ Chairman~
8 First of all, I think Judge Rosenthal .,...,.. Mr *. Rosen th 1 9 does an injustice to his-abilities to conduct~adjudication.
10 I don't believe that this--
11 CHAIRMAN HENDRIE: But not to outguess. this Com"""
12 mission, from what he's saying.
13 (Laughter}
14 MR. OSTRACH: I think there would be nothing 15 impossible in a situation where compliance wi,th the. re.gulations 16 created a presumption of adequate prote.ction for the. publi_c 17 health and safety, subject to rebuttal, if a party could sh.ow 18 that nonetheless in a part;i.cular area ':"'~ WE} have. some.thing 19 similar to that already in the regu,lat.:j__ons, .t.n lO. CFR 2 *. 7 58, th 20 pr9v+/-sioii-~:::?:-that a showing could be made th.a,t .tn a spe.cific 21 case a regulation is no longer appropriate to do justice, I 22 don't find i t inconceivable that the Commission might want to 23 se.t up .a .situation where a party could show that in a particula I
24 area the Commission's formally printed regulations haven't kept Ace-Federal Reponers, Inc.
25 -
up with the Commission's own development and th.e Commissi_on **s
21
./wbl7 own thinking, so that compliance with that regulation shouldn't 2 be sufficient to insure a license approval.
- 3 4
5 The question is, Does the Commission want a licensing board that is convinced that a regulation no longer is sufficient to adequately protect the public health and 6 safety--
7 MR. BICKWIT: In the view of the Commission.
8 MR. OSTRACH: Yes; its vi.ew of what the Commission 9 thinks. --to, nonetheless, issue. a decision?
10 There ts nothing wrong with. that. You t,re. providing 11 that the Commission itse_lf will pass upon th.e license. issuance-.
12 COMMISSIONER KENNEDY: Which is. why I thought we.
13 were doing it.
14 MR. OSTRACH: You t*re just sort of forcing a 15 licensing board to sort of_ grudgingly say, We. think. this* is* a 16 terrible idea but by what we're bound by wetre approving the T7 issuance.
18 There '*s no problem the.re. I.f that ts th.e way you 19 want it wei11 change the language ..
20 There is one problem,. however, Mr.. Chairman. The 21 Commission cannot ignore its own re.gulations either.. When a 22 case comes to the Commission, if the. regulations. have all been 23 complied with but you no_ longer believe the regulations are.
24 sufficient to protect the public health and safe.ty, unless Ace-Federal Reporters, Inc.
25 you put in some language here now to indicate that tb.:,ts pol.Sey*
22 wwwbl8 has been changed I believe there can be a serious argument 2 that you're going to be bound to do just what the licensing
- 3 4
5 board is bound to do, say: Oh, gosh, these are--
thel.ess.
Well, none-,-
And I think that at the last you ought to make it 6 clear that the Commission may determine in specific cases that 7 compliance with the existing regulations is not sufficient to 8 protect the public health and safety. Be.cause. you might want 9 to do that when the case gets to your leve.l ..
10 MR . .SHAPAR: Of course the Commission has control 11 over the stay as to whether or not the. license. will be. isl;med.
- 12 But beyond that the Commission itself has rulemak.ing authority.
13 MR. OSTRACH: We think it would be bestr though.,
14 if you* intend the -c-hange ~the regulations in a specific case, to say *it.
15 CHAIRMAN HENDRIE: Isn't it enough_ to know that 16 indeed the regulations and regulatory polic;ies may be. ;further 17 changed?
18 MR. OSTRACR: I would at least add a phrase. *tin a 19 specific case, or something li.ke. that, to make it clear that 20 you're considering a s;i.tuati.on, when the case comes to you you
- 21 22 look at the r,egulations as they tre applied in that case and you realize that regulation is no longer sufficient, you want 23 to change the regulation, Can you do i t in that case without, 24 as Mr. Shapar suggested, a disi~genuous process of staying it Ace-Federal Reporters, Inc.
25 while you rush out the other door and change a rule and then
23 w/wbl9 say, Oh,_gee, now we can-- the new rule applies.
2 I would rather you make it clear~-
- 3 4
5 ties out of it.
COMMISSIONER AHEARNE:
MR~ OSTRACH.:
If we could le.ave personali-It was Mr. Shapar's-suggestion, sir; 6 that's all.
7 I think it would be more direct if the Commission 8 indicated here that it might be planning on changing its 9 regulations in a specific case.
10 COMMISSIONER GILINSKY: -I ~a like to ~e.e ~,ome. words 11 like "conside.rably or "in important re.s.pects~ lt*
12 COMMISSIONER AHEARNE.: It seems I ha.ve. th;i.l?*
13 feeling of deja vu, that wetve been. thr,:ough. thj::,s.- befor-e *.
14 But let me say: it appe.ars we t*;re back. on the i.s~e. of there 15 are three options: we can either not have. any boards. go forth.
16 until the Commission has resolved all thepolicy questions, or 17 we ca rl:lave th.e boards resolve th.e policy questions, or we. can 18 have the policy questions alerted, that h.ere. ts where. th.e.y a;r:-e.
19 and we have to end up deciding on th.em ..
20 Now I had thought that last time. we ha.d come. out 21 on that thi.rd option. I thought th.a, t the boards, th.e licensing 22 board in reviewing these i.ssues were. to mak.e. recornrnenda tions where th.ere we.re close calls, and alert i.n their decision that 23 24 Here's a close call we had to make. And*I would view- that Ace-Federal Reporters, Inc.
25 kind of a close call as being a situat.ton whe~e. th.e :r~gulati.on.
24
./wb20 says this is sufficient, they suspect itts- going to. change, 2 they have to go with the regulation. Thatts this kind of a
- 3 4
5 situation where they alert, And I thought also th.en that th.e.
appeal board was_ going to do the same thi.ng :j::n the.ir quick review as it outlines here, that tb,ey will th_en. identify to 6 the Commission where a policy is u,nclear at tb.e. pre,sent time.
7 or a policy decision has to be made.
8 I didn I t see ;i.n th.e. de.scripti.on of the. l,tcenS'i.~.g 9 board, though, that aspect. I would have. thought tha.t.
10 it would be appropriate to say that be.cau,se, a. s:ubs-tantial 11 change is made, may occur, that th,e.:re. w.t.11 be, the.se. kinds of 12 situations, and that the licensing board sh.ou,ld. alert._
13 What you have here is, The Conrrnts$ton expects the. LicenS'--tng
- 14 Boards to pay particular attention in th,eir de.c.i.sions- to 15 analyzing the evidence*** 11 I thi_nk. you, ought to go on and 16 point out that the licensing board should expl:j::ci:_tly ca,1,1 17 attention to that. And that ts the same kt.nd of a thlng: they, 18 ought to be calling attention to any place where, they are, 19 interpreting existing regulations and regulatory poltcte,5 20 differently, due to the implicat,ton$.
- 21 22 Those are the areas wb.e;t;"e you, expect Ule l.tcens-ing board to have alerted both the. appe.al board and use. th.at
-- 23 24 Ace-Federal Reporters, Inc.
25 they I ve done something differently or made this k.ind of close, call.
MR. BICKWIT; Fine~ But you ~'re still left with.
25 Wi/wb21 the point that Steve raises with. respect to the Commission.
2 COMMISSIONER AHEARNE: I have no problem with.
- 3 4
5 appropriately chosen words th.ere to point out th.at the Commission. has th.is potential change~
the licensing board making that change~
I am concerned about 6 MR. BICKWIT: I understand~ But with. respe.ct to the 7 Commission I th.ink the exchange between Howard and Steve is an 8 important one.. Do you want to $ay th.at the Commission can 9 only deny the license if its existing regulations are met, if 10 it chooses to amend the regulations. And my advice is that ll you ought not to say th.at.
12 COMMISSIONER GILINSKX; Why not say in here:
13 And the Commission, when it takes up the. matter, may decide 14 that--"
15 MR. OSTRACH: Thatts all we. s~c;gest, sir ..
16 COMMISSIONER BRADFORD; A,re. we. th.en leaving ;Lt in 17 a way that the licensing board and th.e. appeals board in fact 18 will issue a license if they are in compliance wt.th - ..... issue. a 19 decision to the effect that a li.cense would i.ssue.?
20 MR. SHAPAR: But flagging
. . po.;in.ts that ought to be 21 brought to the attention of the Commission th.at trouble. it ..
22 COMMISSIONER AHEARNE: Not nece.ssari.ly trouble.
23 them, but notice that here is something ..
- 24 Ace-Federal Reporters, Inc.
25 COMMISSIONER BRADFORD: Well what*s that going to do to rulings on questions such as whether a particular
26 wwwb22 contention with regard to emergency preparedness ought to be 2 heard at all at the licensing board level?*
3 MR. BICKWIT: Th.ey will have to follow the 4 existing regulations.
5 COMMISSIONER BRADFORD: Wh.en the emergency prepared 6 ness issue then_gets to th.1: Commission, the record will reflect 7 a bunch of rulings made on the basis of th.e existing regula-8 tions even though the Commission ls attitude on emergency 9 ,preparedness :may be completely different?
10 MR. BICKWIT:. That~s right~
11 COMMISSIONER BRADFORD; So that we. would then have 12 to remand the issue, reopen it, and take evidence. anew.
13 COMMISSIONER AiIEARNE: Unless we had already made.
14 that decision explicitly and ch.anged it.
15 COMMISSIONER BRADFORD:* Even th.en, anything th.at 16 has gone on before the licensi~g board, any cases* that have l7 been closed out will be based upon th.e re.cord~ l.t doesn tt 18 reflect that_. this area, ,or operator train.:i.ng, or .1rn.actor 19 *instrumentation--
20 COMMISSIONER AHEAR.NE; In those case.s. they will.
21 have to be remanded anyway.
22 COMMISSIONER BRAD,FORD; we. '-\r;*e_ 90.:µig to be ;i:;:ema,n.d.i:ng 23 a lot of cases, then.
24 MR. SHAJ'AR: From a pra.ct.t.ca.1 ~ta,nclpo.;t.nt :I' thi.nk Ace-Federal Reporters, Inc.
25 I ought to point out that at lea~t one ot the pa,~tte? would be
27 alert to impending changes ih Commission policy and urging 2 that position before the Board.
3 COMMISSIONER BRADFORD: But it won't make any 4 difference if the position is in compliance with the existing 5 regulations.
6 MR. SHAPAR: I'm just saying that in the practical 7 world, looking at your su9"gestion, it won"t be handled 100 per-8 cent, but close to it.
9 COMMISSI.ONER GII.,INSKY: ,.l\ren tt you talking mostly 10 about interpretation of the regulations r*ather than the regula~
11 tions themselves?
12 MR. BICK.WIT: For the most part. You've dealt 13 with that in the previous sentence. But you will have 14 situations -- and emergency planning appears to be one of 15 them where 'fe':i:'e talking about changes in the regulations.
16 COMMISSIONER GILINSKY: Well it seems to me the way 17 to handle this problem is for the Commission to provide 18 guidance on specific issues as rapidly as possible.
19 MR. SHAPAR: And that point is well made in this 20 draft.
21 MR. ROSENTHAL: It does als.o seem to me th.at i.f 22 the concern is that contentions wi.11 be excluded and that at 23 a subsequent time the Commission will determine. that th.e.
24 contention under its new policy sb.ould have been admi.tted to Ace-Federal Reporters, Inc.
25 the proceedi~g, thus there has to be considerable additional
28 W./wb24 evidentiary hearing, that problem can be, if not obviated, at 2 least reduced if the Commission from time to time indicates
- 3 4
5 to the boards and it can do th.is without a change in regulation -- that this particular type. of contention should be.
admitted to the. proce.ed.;i..ngs an.d h.e.ard,,.
6 It 1 s much easier to do tha.t in sort of an informal 7 way than i t is to informally tell the boards, You '-'ve.. got to 8 deny a license in these circumstances even though th.is* is: not
-9 as yet reflected in a regulatory requirement, 10 I think i t is very easy for the Co:rrun.;ts~,li.on to de.al 11 with -- to stay on top of these probl.ems. that deal with. the.
12 matter of contentions and what is actually he.a.rd dur:j:~g the.
13 course of a proceeding.
14 MR. BICKWIT: Fine. Well shall we strike the 15 language the Chairman referred to, and then in the. Commission 16 section make clear that it is not -- that i t is no longer the 17 policy of this Commission that if all of its regulations are 18 met that i t is therefore necessarily the case that a license 19 shall issue?
C2 20 We'll phrase i t more gracefully than that, but,,.. ...
21 COMMISSIONER KENNEDY: We\11 have. to come and di_s,-
22 cuss the *.d.rrnplications of such a statement, I hope. r: hope 23 the erudition already expressed from our legal colleagues 24 will be able to enlighten us further~
Ace-Federal Reporters, Inc.
25 COMMISSIONER BMDFOR)); I, would s.tp:j:_ke. the. w:o;r:*d§:
)
29 II between sufficient to and warrant," but I would leave the 2 rest of that or make whatever changes were necessary to bring 3 it in line with Alanis original understanding of it.
4 CHAIRMAN HENDRIE: That would also do it for me, 5 Peter.
6 COMMISSIONER AHEARNE: And I would like some 7 language in there saying that the licensing board .ts suppose.d 8 to alert,or recommend in its decision--
9 CHAIRMAN HENDRIE: It could be a last sentence:
10 "The Board should make note of such issues.'*'
ll COMMISSIONER KENNEDY: Wha.t i.s i.t we re proposing?
12 MR. BICKWIT: I think th.ere a;r*e. differences in 13 the Commission on this question. If you strike e.ve.rythln_g 14 between- 11 sufficient,,. and 'qto warrant, 11 from wha.t r hear 15 Commissioner Kennedy saying, he may have. an obje.ction to that.
16 COMMISSIONER KENNEDY: We ';*ye 1 i.stened to thirty 17 minutes of discussion which would essentially be ignored by 18 that proposition.
19 COMMISSIONER BRADFORD; My propos:ition had two 20 steps to it. One was that, and the other was to, whether by 21 footnote or by some alteration of the remaining language,make 22 it clear we were giving that sentence,Alan Rosenthal's original 23 reading of it, rather than the complete overruling of the 24 proposition that the regulation--
Ace-Federal Reporters, Inc.
25 COMMISSIONER KENNEDY: Something like that, if I
.could see it, might be helpful.
30 lB ~/agbl I could judge better when I saw it.
2 CHAIRMAN HENDRIE: Please try something along that 2.025
- 3 4
5 line. That does sound -- it deals with a particular problem of whether you're throwing out that line of cases.
COMMISSIONER KENNEDY: So long as the language 6 remains, however, that there is the one other question, which, 7
if the lang.uage we' re going, we needn't worry about. If the 8 language is to remain, there is still a further question the 9 way the *-sentence* is now ,phrcased, 'Where i t says, "and to warrant 10 approval;" two aspects:
11 First, the compliance with existing regulations 12 may no longer be sufficient to provide for the public health 13 and safety. That's one thing. And, on the ooher hand, neither 14 is it sufficient to warrant the issuance of a license. Those 15 are two different things. And I don't think that's what was 16 intended.
17 If it is intended, I'd come back to. an original and 18 earlier point, that me~ns all existing plants meeting existing 19 regulations are not adequately protecting the public health 20 and safety by our own statem~nt. And I'm not sure that that's 21 what we want -- well, I don't know, do we want to say that?
22 COMMISSIONER*BRADFORID: That's the language I'm 23 . proposing to take. out.
24 Ace-Federal Reporters, Inc.
COMMISSIONER KENNEDY: Okay.
25 COMMISSIONER GILINSKY: I don't think it carries
31 that implication with it. But, so far as I'm concerned, it 2
could go out.
3 MR. BICKWIT: I don't either.
4 COMMISSIONER KENNEDY: There's an old statement 5
about it is, after all, in the eye of the reader.
6 CHAIRMAN HENDRIE: I think there is this difficulty 7
as it stands, but I think the later suggestion for redrafting 8
here deals* reasonably with it.
9 MR. BICKWIT: We can redraft it.
10 CHAIRMAN HENDRIE: And then down at the end of 11 this paragraph, we'd want some sentence that the board should 12 make special note of such issues -- the )::>_o~r_q.s in their 13 decisions.
14 Okay. Onward.
15 MR. LAZO: Mr. Chairman, may I ask Len first 16 before we go on:
lT The sentence at the end of page three_that ends 18 on .the top of page four is troubling me a little bit, and I 19 wonder if there's a missing word: there.
20 MR. BICKWIT: There-:+/-s~-- ,~Between "impiicitions" and 21 "those," the word "for" is missing.
22 MR. LAZO: Yes. All right. Thanks.
23 CHAIRMAN.HENDRIE: That converts it to a sentence.
24 Ace-Federal Reporters, Inc. MR. SHAPAR: What.do/yiou mean when you're saying 25 to regulatory policies, are you referring to Staff guides or
I 32
-b/agb3 formal Commission statements of pol~~y?
2 MR. BICKWIT: The whole shooting match.
- 3 4
5 MR. SHAPAR: Everything?
CHAIRMAN HENDRIE:
MR. ROSENTHAL:
I think so, don't you?
I also take i t there was no 6
intended implication here that every change a regulation 7
might have the -- would necessarily have the effect of requirin 8
the rejection of-the application-ior further proceedings on 9
remand. The change in regula-ti0ns, -I .,assume, come in various 10 shapes and sizes. with differtng implications in terms of whethe 11 the issuance of the license should be further held up.
12 CHAIRMAN HENDRIE: Just so.
13 COMMISSIONER GILINSKY: Can we add something like*
14 any further change --
15 COMMISSIONER AHEARNE: To stress .the substantial 16 aspect of the changes, I would agree with that.
-17 MR. OSTRACH: "In important respects."
18 MR. BICKWIT: On page five 19 COMMISSIONER AHEARNE: You have used two different 20 forms for the review of the Appeal Board. That is,_yo':1 21 specified in one case when a stay motion is filed, and in the 22 other case where a stay motion is not filed. Why didn't you 23 just put it all together?- Beaause you're basically asking the 24 Ace-Federal Report11rs, Inc.
Appeal Board to review rapidly whether or not a stay should be 25.
imposed; independent of whether there is a ****
33 wrer-gb4 MR. BICKWIT: We impose.some time period.
2 COMMISSIONER AHEARNE: The 60 days, though, is goin 3
49 to be independent of whether a stay is filed, isn't it?
4 MR. BICKWIT: I think we could co~lapse those two 5
sentences.
6 MR. SHAPAR: I think we define stay, isn't that 7
the answer to the Commissioners' question? I mean, for the 8 purposes of this document, a stay means beyond the stipulated 9 period.
10 MR. BICKWIT: Is that the answer to the Cornrnissione s' 11 question?
12 COMMISSIONER AHEARNE: Not really, because I though tt 13 the issue was you've got 60 days, the Appeal Board is supposed 14 to make its review and pass on, independent of whether or not 15 the stay motion is filed, ! f a stay motion is filed, then it 16 does one-thing. If the stay is warranted, it still has to 17 have 18 MRo BICKWIT: I think we can collapse the two 19 sentences, if that makes you feel better.
20 COMMISSIONER AHEARNE: I was just ques~ioning.
21 COMMISSIONER KENNEDY: I have a question which I 49 22 think is probably related to this. It says that:
23 "If no stay papers are filed, the Appeal 4t 24 Ace-Federal Reporters, Inc.
Board shall, within the same time period (or earlier 25 if possible)"-- which is the 60 days -- "analyze the
34 w.agbS record and the decision below on its own motion 2
and decide whether a stay is warranted. It shall
- 3 4
5 not, however, decide that a stay is warranted without giving the affected parties an opportunity to be heard."
6 Once it decides that the parties deserve to be 7
heard, is it not automatically staying the matter until the ,;_
8 hearing is completed?
9 MR. ROSENTHAL.: -No-, ,only -to -be heard on the questio 10 of whether a stay is warranted. Under the present s*i tuation, 11 the Appeal Board will not consider staying the Licensing Board 12 decision unless an application for a stay is filed by one of 13 the parties.
14 Under this procedure, in all cases, whether a stay 15 application is filed or not, the Appeal Board will look at the 16 question as to whether a stay is warranted. If, in a case in
- 17 which no stay application has been filed, the Appeal Board 18 considers that there may be warrant nonetheless entering:the 19 stay, before that stay is entered the parties would be given 20 an opportunity to be heard, and that is on the question of 21 a stay, and that is simply. a matter of fundamental due process.
22 COMMISSIONER KENNEDY: I'm only asking if all of 23
- 24 Ace-Federal Reporters, Inc.
25 th.at occurs ..within the previously stated 60 days.
Oh, it is?
And, if not All of that must occur and that hearing occur withi that 60 day period?
35 w9gb6 MR. BICKWIT: That's right.
2 COMMISSIONER KENNEDY: That's what I wanted to be
- 3 4
5 sure of.
CHAIRMAN HENDRrE:
of page six where you say:
Unless you advance to the top 6
"If the Appeal Board is unable, within 7
a 60-day period to" --
8 COMMISSIONER.KENNEDY: That's a different question.
9 MR. ROSENTHAL: .The :answer ,to ,your question, 10 Commissioner, is yes, the Appeal Board will move with dispatch.
11 And I can tell you that on *: a, stay application, the Appeal 12 Board has no problem at all about directing the parties to 13 appear on six, eight or 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> notice before it. So we have 14 no doubt that we can accomplish that within the period indicate.
15 COMMISSIONER KENNEDY: Fine.
16 MR. SHAPAR: I reaa.it the same* way, and I have
'l7' no trouble with the formulation. But as I recall the previous 18 Commission dis.c~ssion, the way I understood it was that there 19 wmll.ld not be an Appeal Board decision, there would be an Appeal 20 Board recommendation to the Commission, and the Commission 21 would decide it based on the Appeal Board,recommendation.
22 MR. BICKWIT: I understood.it that way also.
23 COMMISS.IONER KENNEDY: That I s page six.
24 i Ace-Federal Reporters, Inc.
MR. SHAPAR: _ You're talking about decisions/ though 25 in some of this.*
MR. BICKWIT: I understood it that way. It just 2
struck me as making no essential difference. There's no 3
essential difference between a recommendation and a decision 4
which must be reviewed.
5 MR. SHAPAR: And I have no problem. I just wanted 6
to bring it to your attention that you were talking the last 7
time about a recommendation rather than a decision.
8 CHAIRMAN HENDRIE: Since it is reviewable, I agree, 9
I have no problem with it.
10 MR. BICKWIT: It's just easier to draft that way.
11 On page five, if we are all on that page, we have 12 said safety or environmental issues.in each case, except with 13, respect to item one toward the bottom of page five, and we woul
\
14 insert *- '"or environmental" .after "safety."
15 COMMISSIONER GILINSKY: Where is that?
16 MR. BICKWIT: About two-thirds of the way down, the words: "create novel safety issues" are found. And we 18 feel that ought to say "safety*or environmental issues."
19 That is simply conforming that to the posture of the rest of 20 the statement.
21 MR. SHAPAR: I guess the s.ignificance of this 22 paragraph is that beyond the standard reasons for granting a 23
.stay., whi.ch ,.are in the regulationsr the Appeal BJard recommendati n, 24 Ace-Federal Reporters, Inc.
these,*two** additiona.l*,ccriteria~ wi11-be weighed on the stay matte *
- - , ,* * * -e * - ** * *~ - -
- 25 MR. BICKWI.T: That's exactly right. The rules do
37 provide that you have a public interest criterion. However, 2
without making these changes, we feel the Boards might be --
3 the Appeal Board might be hemmed in by previous interpretations 4
of the Virginia Petroleum Jobbers case and the rules accomodati g 5
it.
6 COMMISSIONER BRADFORD: I agree with your change, 7
but let me just ask if you can name off the top of your head 8
a novel environmental issue that arises from Three Mile Island.
9 MR. BICKWIT: Citing low level regulation releases 10 whether the Commi.ssion would find those were Three Mile Island 11 issues.
12 MR. SHAPAR: Psychological injury.?
13 COMMISSIONER KENNEDY: Is that environmental 14 or.is .that public health?
15 MR. SHAPAR: It could be environmental.
16 COMMISSIONER KENNEDY: Psychological harm to people 17 is environmental, as contrasted with public health?
18 MR. SHAPAR: Could be.
19 MR. BICKWIT: Public health issues are environmenta 20 issues within the meaning~of NEPA.
21 COMMISSIONER BRADFORD:* But also safety issues?
22 COMMISSIONER KENNEDY: Yes.
23 MR. SHAPAR: It' s not a very cle*ar 1 ine in the law, 24
- Ace-Federal Reponers, Inc.
but you'* 11 have the pleasure of being able to deal with it.
25
.MR. BICKWIT: Can we move to page six?
38 wr19gb9 CHAIRMAN HENDRIE: Please do.
2 MR. BICKWIT: I just want a flag at the bottom of
- 3 4
5 the paragraph carrying over from page five, the last sentence of th.at paragraph. It does skew matters in a way that may not have been clear from the discussion of last week providing 6
that the Appeal Board will conduct its normal review while 7
the Commission is considering whether to stay the matter. We 8
think that's good policy but want to flag it for your considera 9
tion.
10 MR. ROSENTHAL: It says unless otherwise ordered 11 the Commission retains full control to direct that a different 12 course be pursued.
13 CHAIRMAN HENDRIE: I think that was clearly the 14 direction we were set upon the last time we discussed. these 15 various options. I'm g.lad to see you've got i t in the draft 16 or somebody got it in the draft.
17 Onward.
18 MR. BICKWIT: The1mext sentence, I simply want to 19 point out that this is Howard's point, ***the point that Howard 20 raised at the last session, that the Commission does have the 21 right to s.tep in at any point and gral:l. an iss.ue, even before a 22 decision is reached on that issue at the Licensing Board stage.
23 COMMISSIONER BRADFORD: What does the last sentence 24 Ace-Federal Reporters, Inc.
on page six mean?
25 MR. BICKWIT: That we are not providing a right to
39 file new pleadings after the pleading with respect to a stay 2
has been filed at the Appeal Board level. You make your case 3
to the Appeal* Board and t..1-ie .. Commission at the Appeal Board lev 1.-
4 COMMISSIONER BRADFORD: Well, let's see. Supposing, 5
though,*. that a party -- or the context in which a party could 6
now take an issue to the Commission while it-.was ostensibly pend+/-n~
7 at the Appeal Board level. Say they felt that Alan Rosenthal 8
had demonstrated a conscionable bi.as toward them ****
9 MR. ROSENTHAL: *we**re only' biased -against the 10 Staff.
11 COMMISSIONER BRADFORD: All right. Well let's say 12 the Staff felt that.
13 MR. BICKWIT: The judgment is made here that in 14 effect what you have is an Appeal Board recommendation to the 15 Commission. In light of that, it seems reasonable to provide 16 the parties one shot in filing their particular proposals with
'TT respect to what the final decision ought to be. If the Appeal 18 Board differs with that decision, they have stated what their 19 position is and the Commission can then decide the issue. We 20 could provide an additional filing; our view was that it was 21 not necessary.
22 COMMISSIONER BRADFORD: I'm not urging that an 23
_add,ition.al filing .o.£ the type be made, I just wouldn't want to 24 Ace-Federal Reporters, Inc.
cut off any filings of a somewhat different sort that a party 25 might normally be able to make with the Commission on a matter ***
40 wr. .gbll MR. BICKWIT: It was not our intention to do that.
2 We are dealing only with.this novel stay situation.
- 3 4
5 COMMISSIONER AHEARNE: You mean they'd still have no ;:right to file pleadings with respect to the stay.
MR. BICKWIT: That's right.
6 COMMISSIONER BRADFORD: Why don't you add something 7
to that effect?
8 COMMISSIONER KENNEDY: What was that?
9 COMMISSIONER -BRADFORD: I would.** suggest they add 10 a couple of words to make it clear in here that they weren't 11 eliminating filings that otherwise would be made.
12 CHAIRMAN HENDRIE: .So it would be pleadings with 13 espeQt inparticuJ2ar*to.the:.* Appeal Board decision that had then 14 come before the Commission, and that would leave all other 15 permissible direct pleadings to the Commission free to come.
16 MR. BICKWIT: Page seven presents the issue of 17 what time period should the Commission accord to itself in 18 making a decision on the stay question and what should be the 19 consequences of ,its failure to comply*>1with that time period.
20 I can do no more than to read the two alternatives 21 that we put before you. On the one hand, we say:
22
- "It.is expected that the Commission will 23 issue a ,dee is.ion .in each case within 20 days of receipt 24 Ace-Federal Reporters, Inc.
of the Appeal Board's decision. If it does not act 25 within that time and if the Appeal Board has not stayed
41 wregb12 the Licensing Board's decision, then the license or 2
permit shall be issued in accordance with the initial
- 3 4
5 decision. 11 The alternative would be to simply provide that:
"It is expected that the Commission will 6
issue a decision within 20 days of- the Appeal Board's 7
decision. 11 8
COMMISSIONER GILINSKY: Why don't you just put 9
brackets on the second sentence?
10 MR. BICKWIT: That's very perceptive.
11 CHAIRMAN HENDRIE: Let's see. We were divided 12 on this question before and counsel has provided us with two 13 versions of it. Why don't we argue it briefly and see whether 14 the majority --
15 COMMISSIONER KENNEDY: I would like to add a third 16 version.
17 CHAIRMAN HENDRIE: All right. Well we can always 18
-- even after we see where the general sentiment lies, we 19 can certainly talk about particular words in changing that.
20 What's the third one?
21 COMMISSIONER KENNEDY: I would have_ the first 22 sentence as it is at the top of the page, and then I would 23 substitute for the remainder:
24 Ace-Federal Reponers, Inc.
"If it does not act finally within that 25 time, it will state the reason for its further
42 w.agbl3 consideration and indicate the time it anticipates 2 will be required to reach its decision. i. In such 3 an event, if the Appeal Board has not stayed the 4 Licensing Board's decision, the initial decision will 5 be considered stayed pending the Commission's final 6 decision."
7 All .I'm trying to do here is say we are either 8 going to act affirmatively or state why not and try to give l
9 some estimate then when we .will, .which, .it ,s.eems to me, is 10 consistent with the view stat~d on page three which I recall 11 for you.when we said "because prior notice and comment
- 12 would further delay adjudicatory decisions being 13 rendered and from being addressed by the Commission 14 and so would be contrary to the public interest."
15 Now the fact that things are being delayed is, 16 we have alread asserted, not consistent with the public interes
- 17 And I'm suggesting here we then ought to indicate what we 18 plan. to do, why we' re holding it up,_ and th~n also indicate 19 our clear understarlding that if we do not, what we have done, 20 whatever we like to call it, what we have done has stayed the
- 21 decision, that's all.
22 I'm just trying to call these spades what they are.
- 23. CHAIRMAN HENDRIE: Read i t once again.
24 COMMISSIONER KENNEDY: "If it does not act Ace-Federal Reporters, Inc.
25 finally within that time, it will state the reason
43 for its further consideration and indicate the 2
time it anticipates will be required to reach 3
its decision. In such an event, if the Appeal 4
Board has not stayed the Licensing Board's decision, 5
the initial decision will be considered stayed.
6 pending the Commission's final decision."
7 COMMISSIONER GILINSKY: If I understand it 8
correctly, it's basically a commitment to explain the reasons 9.
for not having decided the case in 20 days.
10 COMMISSIONER KENNEDY: Yes.
11 CHAIRMAN HENDRIE: Or having decided the stay --
12 COMMISSIONER KENNEDY: And noting that if we haven t, 13 in fact, what w.e are doing is staying the decision. Whatever 14 we call it, that's what we're doing.
15 COMMISSIONER BRADFORD: But no license would be 16 issued until the --
- 17.
COMMISSIONER KENNEDY: The decision is stayed.
18 COMMISSIONER GILINSKY: I think i t is okay. I 19 would like to see it in writing.
20 COMMISSIONER BRADFORD: I think it is okay, too.
21 If the decision of the Appeal Board had been not to issue the 22 license, presumably the result of that would not be the iss.uanc 23 of a li.cense.
24 Ace-Federal Reporters, Inc.
COMMISSIONER KENNEDY: No.
25 MR. OSTRACH: Under the Commission requirements.
44 e/agbl5 COMMISSIONER KENNEDY: Not unless the Commission 2
itself elected to do so. All it does is call for affirmative
- 3 4
5 action on the part of the Commission. In other words, to avoid the problem we mentioned earlier about inaction turning out to be action. It calls upon us to act in some way, even 6
to state that we are not going to.
7 CHAIRMAN HENDRIE: It sounds like it might be 8
a selling proposition, Dick. If I can't get you all to go 9
with bracket one, why I'll certainly support yoU:r pIJoposal 10 in preference to bracket two.
11 COMMISSIONER KENNEDY: That sentence remains.
12 CHAIRMAN HENDRIE: I'm talking about the whole 13 bracket~ I prefer to put fire under the Commission and make 14 it take an action in 20 days. If the action is that we're not 15 ready to issue, to say that. But there seems to be already a 16 majority sentiment to accept .that. It does not result in any 17 issuance of a license in the absence of positive Commission 18 action but puts some language in that puts a little heavier 19 burden on us to propel us to either say yes or no or to say 20 why we are having trouble saying yes or*no.
21 COMMISSIONER AHEARNE: I would have been silent 22 on the issue.
23
- 24 Ace-Federal Reporters, Inc.
25 C0MMI'SSIONER -BRADFORD:
the second bracket?
COMMISSIONER AHEARNE:
You would have gone with With neither.
45
.qagbl6 COMMISSIONER BRADFORD: You would have left the 2
paragraph out altogether?
- 3 4
5 COMMISSIONER AHEARNE:
COMMISSIONER GILINSKY:
Yes.
I guess I probably would have, too. I think it's perfectly reasonable that we should 6
explain --
7 CHAIRMAN HENDRIE: -- what we propose to do and how 8
we hope to be able to do it?
9 COMMISSIONER KENNEDY: I just submit I feel if we 10 don't we will relatively soon be asked to do so. I can't 11 imagine an agency which is in the business of licensing just 12 failing to do so over any period of time,without stating its 13 reasons, getting away with 'it. 1ou know.
14 COMMISSIONER AHEARNE: I think that's certainly..
15 true,
- but I think the first few times around -- I feel uneasy 16 about making the k;Lnd of commitment that at least gives the 17 appearance that we think these issues are going to be readily 18 resolved and rapidly*., There are some of those major _policy 19 issues that I would suspect we will be trying to think through*
20 with some great care.
21 COMMISSIONER KENNEDY: If that's the case, that 22 we feel we can't come to grips with it, then I think the public 23
-needs ,to know that *.
24 Ace-Federal Reporters, Inc.
. COMMISSIONER AHEARNE: If we had had a standard of, 25 for example, rulemakings would finish by X time, if we were to
46 wrb/agbl7 meet all these deadlines, then I would feel this would be just 2
consistent with our practice. I'm a little uneasy about being 3 so efficient.
4 COMMISSIONER BRADFORD: I see your point. It might 5
be better to say the Commission will seek to issue a decision 6 -than to say that it is expected, you're probably quite right.
7 I think the first couple of ones you cannot reasonably expect ***
8 COMMISSIONER KENNEDY: I don't have any problem 9 with that so long as the other thought is contained in there.
10 CHAIRMAN HENDRIE: Will seek to issue? Start it, 11 "The Commission will seek to issue?"
12 COMMISSIONER GILINSKY: This is a decision on the 13 stay.
14 CHAIRMAN HENDRIE: This is a decision on the stay.
15 Do the.-ne:xt>.draft that way, with Dick's sentence 16 to follow.
- 17
- The balance of -the page.
18 MR. BICKWIT: The balance of the page Eresents the 19 issue we raised earlier in this meeting, which is what do you 20 want to do with respect to uncontested cases and uncontes:ted 21 issues in contested cases.
22 COMMISSIONER AHEARNE: I don't see why it's only 23 the uncontested issue for the contested case.
- 24 MR. BICKWIT: Because that's the situation in Ace*t-ederal Reporters, Inc.
25 Nor~h Anna, it's a contested case.
47 COMMISSIONER AHEARNE: No, North Anna is separate 2
entirely because you've already gone through a decision.
3 MR. BICKWIT: It is not an uncontested case, it's 4 a contested case and you have to make a decision how you are 5
going to deal with that situation.
6 MR. ROSENTHAL: This language, if I may say so, 7 I think is very fuzzy. From the conversation I had with 8 Mr. Ostrach after I got a draft of this, I understood that what 9
is being referred to when they talk about uncontested operating 10 license proceedings is the Staff review, and that is conducted 11 in an instance where there is no adjudicatory proceeding.
12 Now I doi'l' t think the term "uncontested operating 13 license proceeding" is one that would normally be equated with 14 Staff review *. And for that reason, I took the liberty of 15 drafting -- I did,not have time to provide it to the General 16 Counsel's office before this came -- the General Counsel's 17 paper came to you -- of drafting an alteration of the first 18 sentence of the paragraph that begins on the bottom of page 19 seven.
20 CHAIRMAN HENDRIE: Give it a try.
21 MR. ROSENTHAL: It reads:
22 "The above set of interim procedures 23 apply only to matters considered in adjudicatory 24 Ace-Federal Reponers, Inc.
proceedings involving nuclear power reactors and 25 so do not govern the issuance of an operating license
48 vwagbl9 in circumstances where either (1), no adjudicatory 2
proceeding has been conducted on the merits of the
- 3 4
5 application for a license or, (2), some of the matters considered in the course of the Staff review of the operating license application neither have been 6 raised before nor determined by the Appeal Board in 7 the adjudicatory proceeding which was conducted in the 8 application."
9 Now this was merely intended -- I might say it is 10 not a substantive alteration of the proposal of the General 11 Counsel, it was merely intended to clarify the .language. 'ii *.1.
12 What the General Counsel has in mind here is if 13 there is no proceeding at all, no one has petitioned for inter-14 vention or the petitions for intervention are denied, and so 15 the Staff is making the -- as it now stands, the Staff is the 16 one that determines whether the license issues or not -- that 17 these procedures would not apply in that circumstance, but the 18 Commission would, as it says in the next sentence:
19 "Any such licenses will be issued only 20 after action of the Commission itself."
21 en.B 22 23 24 Ace-Federal Reporters, Inc.
25
49 le .1 2 General Counsel would also apply that to the case in which an operating license proceeding, an adjudicatory
- 3 4
5 proceeding is conducted but it is confined to issues (a) and (b). And as to all other matters, the Staff under existing procedures is, in the vernacular, calling the shots.
6 And General Counsel's proposal would be that in 7 those cases as well, the license would not issue without 8 Commission action.
9 COMMISSIONER GILINSKY: Did YQJ,l, _expect we would 10 issue a separate statement c:overing those.cases, Len?
11 MR. BICKWIT: It seems to me you've got to say some-
- 12 thing.
13 COMMISSIONER GILINSKY: Why don't we say we will 14 handle those cases separately and they will be the subject of--
15 MR. BICKWIT: You can do that. We saw no reason 16 to do *that in a separate statement.
17 CHAIRMAN HENDRIE: , Alan, make it clear 18 the case of an operating license case where there is an 19 adjudicatory proceeding going on there will be issues iden-20 tified in that proceeding. Now what you're talking about here
- 21 are all other -- are issues that are not so identified as being 22 adjudicated or are not picked up by the Appeals Board on its 23 own ,motion, 24 MR. ROSENTHAL: This would obviously Ace-Federal Reporters, Inc.
25 CHAIRMAN HENDRIE: -- but not to the whole case.
50 eb2- MR. ROSENTHAL: No. This would obviously apply to 2 all operating license proceeding because there isn't an operat-1 3 ing license proceeding, there never has been one, there never 4 will be one, which covers every matter that the Staff has 5 considered in the course of its re\tl.ew. The proceeding will 6 only again cover those issues which have been put into contro-7 versy by a party, and those issues, if any, which either the 8 Licensing Board or the Appeal Board decided to raise on its 9 own initiative, and that obviously can't cover the waterfront.
10 So what the General Counsel, it_seems to me, is 11 saying here is that in every operating license proceeding the 12 license does not issue without the express Commission action 13 and that with respect to the operating license in instances 14 where there is an adjudicatory hearin~, the Commission would 15 presumably be focusing presumably upon those matters that were 16 in the Staff review that were not adjudicated.
17 Am I right on that?
18 MR. BICKWIT: Rather than go through your language 19 again, are you intending .to cover with this statement the 20 situation where the Appeal Board is taking issue (a} and (b) 21 in your example?
22 MR. ROSENTHAL: Well, my redraft, Len, was intended 23 to be nothing more than what seemed to me to be a more 24 felicitous statement on what I assumed you intended.
Ace-Federal Reporters, Inc.
25 MR. BICKWIT: What I intended was that the answer
51
.b3 2 was yes to my question, that in the situation where the issues were divided up, the Appeal Board taking (a) and (b) and the
- 3 4
5 Staff reserving to itself all the other issues, that the Com-mission would get a crack under this statement at issues (a) and (b) and the other issues through whatever mechanism we 6 provide.
7 MR. ROSENTHAL: These procedures would only apply --
8 the ones that are set forth in this paper would only apply if 9 those issues were actually adjudicated in the operating license 10 proceeding, either as the result of a contention or as a re-l1 sult of a sui sponti raising of the issue by the particular 12 board.
13 MR. BICKWIT: Yes, except with respect to North 14 Anna, in which case issues (a) and (b) will not come up.
15 COMMISSIONER BRADFORD: What's going to happen then 16 if there is something kicking around in the case that the 17 Commission finds troublesome?
18 MR. BICKWIT: That's what you've got to decide.
19 That is the issue that I think you have to focus on. In the 20 situation where you've got an uncontested case or a case in-21 valving uncontested issues, how is the what procedure are 22 you going to use? We **just said you I re not going to use this 23 proc~dure. And the options are similar to the ones that you
- 24 Ace-Federal Reporters, Inc.
25 have just considered with respect to the timing of your own action under this paper.
52 e.
i COMMISSIONER AHEARNE: Except in that case you have 2 no ex oarte --
3 MR. BICKWIT: That's right. It'*s a lot easier.
4 But you have to decide, when the Staff comes in and says we 5 want to issue this.license, what is the Commissionts action 6 to be, if the Commission can provide that it.shall not be 7 issued unless it takes formal action and it can set some time 8 limits on it, or i t can go the route that you've gone with 9 respect to startup of ,,B&W .plants'"which .,wer.e closed down as a 10 result of your own orders.
11 CHAIRMAN HENDRIE: Well, I think the language just 12 ought to say that in such cases, i.e., the ones we are now 13 trying to deal with, the Commission will review Staff recom-14 mendations for issuance of a license and will make the final 15 decision on issuance.
16 MR. BICKWIT: Do you want to set a time limit?
17 CHAIRMAN HENDRIE: Well, I'm inclined to-- I'm a 18 - little less inclined to feel the need to::want a time limit 19 here than in the previous case; that is, where the case has 20 come down through the adjudicatory system of the Commission.
- 21 22 In that case the material -- the record and the material that comes down to the Commission *has had a certain discipline im-
,,23, .posed upon i t :1:>.y the Licensing Board and by the Appeals Board 24 and I would trust is reasonably well organized at* the time we Ace-Federal Reporters, Inc.
25 see it. And i t would seem to me the Commission could, fairly
53
- 2 3
expeditiously,decide whether there still are issues in the case that require that it be held while they are thrashed out or whether the case can go ahead.
4 And I suppose it would depend on whether it were a 5 CP or an OL and various other kinds of things.
6 For this other category where the Staff says well, 7 we've studied whatever plant it is. There has been no pro-8 ceeding so we are only talking about OLs, and probably not very 9 .many of those, or no proceeding . _at all. The Staff comes and 10 their case may be indeed well disciplined and organized, or 11 it may not be well disciplined and organized. And it may be 12 easier for the Commission to deal with the issues, or it may 13 be harder for the Commission to deal with the issues.
14 And I think here I'd be less likely to build into 15 this statement language that we would seek to act within 20 16 days or something like that.
17 But I would think the procedure we would use would 18 be the kind we have had before where we don't have an ex parte 19 bar, we can simply sit down with the Staff and hear what they 20 think at a particular point, and discuss it with them, argue 21 with them, with ourselves, and whoever else is handy, and then 22 see what we want to do, sort of issue by issue.
23 MR. BICKWIT: Let me ask the hard question:
24 Do you have in mind that the Commission would take Ace-Federal Reponers, Inc.
25 a vote on the issuance of the license in that circumstance and
54
- e. 2 that the license would not issue unless the question were voted?
CHAIRMAN HENDRIE: Yes.
3 MR. BICKWIT: That wasn't hard.
4 COMMISSIONER BRADFORD: Let me try my hard question.
5 COMMISSIONER KENNEDY: What other options does it 6 have?
7 MR. BICKWIT: The other option was the one that 8 you've used in the case of -- I have to point this out -- in 9 the case of the -B&W plants and ,restart,. ,,It, did ,not take a 10 formal Commission vote to restart those plants.
11 COMMISSIONER KENNEDY: As a practical matter, the 12 Staff came before the Commission and the Commission has 13 certainly had the opportunity to do just that. It simply 14 elected not to and thereby in fact acq~iesced in the Staff pro-15 posal.
16 It seems to me that --
17 CHAIRMAN HENDRIE: Furthermore, Len, we may go 18 through-- I don't really think i t is a difference. In the l9
- B&W case-the first ones to come back with the proposition, 20 "Okay, we' ve done the things you've said we ought to do , now 21 how about it?" We met and we voted on it.
22 As you went on down the line where the presentations 23 c:oming up .were saying, "Okay, now Plant X has gotten into 24 shape as follows," it began to ~ook very similar and we then Ace-Federal Reporters, Inc.
25 went over and the Staff checked on the Commissionenit offices.
55
- eb7 2
3 If no Commissioner wanted to hear i t and it lopked all right to him, why then it went.
Now what we've got here is clearly an interim pro-4 cedure and some time down the line after we've heard the first 5 few, ,or however many, we can very well reach the same point c3 6 in this procedure except, since this is a more formal pronounce 7 ment, why we'd have to amend do any amending by way of a 8 further policy statement~
9 We could end up finding, for. ins,tance, that on CPs 10 from about the fourth one on down that they had so much simi-11 lar configuration with regard to the major issues of importance 12 at that stage that it no longer seemed necessary for us to sit 13 here at the table and hear the specifics all again, and take a 14 vote.
15 I really don't see it as that much different, and I 16 think what we have contemplated is saying that the Commission 17 will take action on licenses wh:ere it does require positive 18 action. And that's pretty clearly the intent.
19 COMMISSIONER BRADFORD: But I still donlt see how 20 this is going to work on uncontested*issues in a contested case.
21 They're going to all travel up with the same piece of paper.
22 At the end of 20 days we 're going to issue a statement about 23 what we're doing with the contested issues. Meanwhile, what do 24 we do with the uncontested issues? What point is there in Ace-Federal Reporters, Inc.
25 issuing something after 20 days on the contested issues if we
56
-eb8 2
3 are going to be dealing with the uncontested issues for another six months?
CHAIRMAN HENDRIE: I guess there are two answers.
4 One of them is-- Maybe we'd prefer then to have the same kind 5 of -- seek like 20 days with regard to the uncontested issues 6 which I could stand but which didn't seem to me as urgent as in 7 the other cases.
8 The reason that 20 days-- It might very well turn 9 out to be there are other issues .that the Commission wanted to 10 consider in this particular case and they would take longer.
11 COMMISSIONER BRADFORD: Part (b) of that question 12 on uncontested issues that come to you now from a Licensing 13 Board, what is the threshold you have to cross in order to 14 review those?
15 MR. ROSENTHAL: Are you talking about an operating 16 license proceeding?
17 COMMISSIONER BRADFORD: Yes.
18 MR. ROSENTHAL: The time --
19 CHAIRMAN HENDRIE: Uncontested issues refers to 20 everything in the case except what --
21 MR. ROSENTHAL: The Licensing Board again will have 22 addressed matters that have been put in controversy and possi-23 bly matters which-it has seen fit to raise on its own ini-24 I Ace-Federal Reporters, Inc.
tiative as i t has the power to do under the Rules of Practice.
25 1So we will get a decision that will address certain issues.
57 Some of them may possibly have been raised by the Licensing 2 Board. All right.
.3 Our responsibility is to review all -- review the 4 Licensing Board's decision on all of the issues which it con-5 sidered, whether it considered them in response to a conten-6 tion or whether it considered them on.its own initiative.
7 In addition to that we are free to raise issues on 8 our own and indeed, in the North Anna proceeding we did pre-9 cisely that. The North A:p.na ,proceedi.ng was one which-- The 10 operating license proceeding for North Anna was contested 11 before the Licensing Board. There were intervenors, an inter-12 venor at least, and there were certain issues raised and they 13 were disposed of.
14 There was no appeal taken to us in that case, so 15 we reviewed it on our own initiative and my recollection is 16 that one of the two issues that we ended up with was one that 17 we *had raised.
- The turbine missile issue, which. we still have 18 before us in that case, was one that had not been raised on 19 the Licensing Board level either by an intervenor or by the 20 Board itself. We raised it on our own initiative, having 21 plucked it out of this list of floating generic issues that 22 were roaming around.
23 So. that's the way we handled those cases.
24 Now when we get finished with it under these proce-Ace-Federal Reporters, Inc.
25 dures i t goes up to the Commission. Obviously we would have
. 58
- ebl0 2
passed upon certain questions. We would have had to if there was an operating license adjudicatory proceeding at all. But
- 3 4
5 then there would be the balance of them.
And I think the question that you have raised, Commissioner Bradford, is a good one. In every one of these 6 cases, operating license cases, there are going to be what has 7 been referred to here as uncontested issues. I would have 8 preferred the term "matters that had not been placed in issue 9 and were simply subject to Staff review."
10 But call them what you will, there will be those 11 issues in those cases and therefore, it seems to me the ques-12 tion does arise, if you have a 20-day period for examining 13 the matters that we touched upon but there was no period for 14 the balance, then the 20-day period in no operating license 15 case is significant since every operating license case will 16 have these ~atters which the Staff is considering which an
- 17 Appeal Board has never looked at.
18 COMMISSIONER BRADFORD: Because you'd be constrained 19 I guess either by the language you'~e suggesting or by the 20 language in here from looking at issues --
21 MR. ROSENTHAL: If. we want to go beyond the matters 22 which the Licensing Board considered, we are constrained to 23 restrict ourselves to matters which seem to us to be of signi-
- 24 Ace-Federal Reporters, Inc.
25 ficance.
COMMISSIONER BRADFORD: Right.
59 MR. ROSENTHAL: That's the thrust of the Rules of 2 Practice.
3 COMMISSIONER AHEARNE: That's fairly broad lati-4 tude.
5 MR. ROSENTHAL: Right. But as I suggested earlier, 6 there's going to be no case in which, on our own initiative, 7 we are going to touch every single thing that the Staff con-8 sidered in the course of its review, so I think you can rest 9 assured that there will be a gap of some magnitude between 10 what we look at and between what the Staff has looked at in 11 the course of its customary review of operating license appli-12 cations.
13 MR. SHAPAR: Do you need a separate procedure for 14 these issues? The Commission has the same sui sponti authority 15 that Alan does, so if you get the case, why do you have to make 16 this dichotomy between contested and uncontested issues, and 17 complicate it?
18 COMMISSIONER BRADFORD: I was asking two questions.
19 The answer to the first one. I think is the one Joe suggested 20 and that is we can, at the end of 20 days, say the reason we 21 haven't issued the license yet is because there are other 22 issues in the case.
23 But I al.so wanted to be sure that the language Alan 24 had suggested, if in fact that's the language we.go with, Ace-Federal Reporters, Inc.
25 di,dn' t in any way constrain the Appeal Board's ability to look
60 at matters that hadn't been placed in controversy when the 2 case came to it.
3 MR. ROSENTHAL: Again I was merely trying to re-4 state the General Counsel's proposition, but I didn't under-5 stand the General Counsel's proposition to have any such res-6 triction.
7 MR. BICKWIT: Clearly it didn't.
8 .COMMISSIONER KENNEDY: Nor indeed, I would agree 9 with Commissioner Bradford, should .i,t, but i t seems to me 10 what we want is the present situation continued; that is, that 11 within the Rules of Practice you select those issues that you 12 consider appropriate and ,significant and then deal with them.
13 So if the language does that, then 14 CHAIRMAN HENDRIE : Okay *.
15 MR. BICKWIT:
- What I would suggest, I would discard 16 your suggestion, Howard, in that if you do that in a situation 17 such as North Anna, once the Commission has passed, if you 18 have another situation like that, once.the Commission has 19 passed on the contested matters, i t will not see the uncon-20 tested matters which may be, in the Commission's view, at the 21 heart of the matter.
22 MR. ,SHAPAR: Why isn't the.Commission in essentially 23 ,the sartte p_osi tion as the Board? The Commisssion is free to 24 raise a sui: sponti issue. It has the same authority if not Ace-Federal Reporters, Inc.
25 greater authority than the Appeal Board to raise it. And any
61 l
.bl3 time the Commission sees an uncontested issue that i t doesn't 2 think has had proper treatment and it wants to remand it for
- 3 4
5 a hearing, it can reach down and do it.
CHAIRMAN HENDRIE: Look, the intent in this policy statement is to indicate the Commission's intention on the 6 so-called uncontested issues in contested cases and on con-7 tested cases if there are any -- There is one that we will get 8 I guess -- to hear the Staff's, in effect, final proposition 9 on issuance of a license, and discuss it and see whether we 10 agree with that.
11 If we do we'll take a vote in the Commission and 12 tell the Staff to issue the license if that's what they've 13 recommended, and if not, make what adjustments are necessary.
14 And I think the policy statement ought to in fact indicate 15 that that is what the Commission will do, just so people won't 16 be in doubt.
17 We could certainly-- You know, we could not say 18 that but do it, but I think it would be gen~rally more helpful 19 if we indicated that that's what we were going to do.
20 MR. SHAPAR: I agree. Suppose the Staff comes in 21 and says Yes and the Commission, having heard the Staff's 22 presentation, says No.
23 CHAIRMAN HENDRIE: Then i t doesn't issue.
- 24 Ace-Federal Reporters, Inc.
25 MR. SHAPAR: Yes, but when does the licensee or any-body else have the right to be heard on the denial? It has now
62 become a contested issue. He hasn't had his day in court.
2 MR. BICKWIT: Does he get it now?
3 MR. SHAPAR: Sure he does.
4 MR. BICKWIT: If the Staff says No, what happens?
5 MR SHAPAR: Then it's a contested issue.
6 I'm simply asking a direct question.
7 MR. BICKWIT: It's the same principle.
8 MR. SHAPAR: No, it isn't because this won't come 9 about in terms of a disagreement between the Staff. That 10 should surface and become a contested issue. The Staff's re-11 view is on the public record and we say what bothers us, so 12 that thing has never happened, and won't in the real world.
13 But this is different because you're asking the 14 Staff to come forward and explain its position on uncontested 15 issues. Now there's no problem if the normal course of events
. 16 transpires, namely, the Staff is willing to issue the license, it hasn't been contested, and it will, but, you review the 18 Staff's presentation and say No.
19 The only question I'm asking you, in that kind of 20 a situation, what do you foresee the c~ain of events will be?
21 How does that matter get litigated? Will you remand it back 22 and make i t part of the full proceeding or not?
23 And.that's what I see as the main problem between
- 24 this dichotomy between where youtve_ got a contested case Ace-Federal Reporters, Inc.
- - - - - - - . ~ - - - - - - * - - - - ~ --
25 . having a parallel track for handling uncontested issues and
63 another track for handling uncontested issues.
2 COMMISSIONER GILINSKY: I*d like to ask a procedural 3 question. Are we in effect scrubbing the second meeting we 4 had scheduled for this morning?
5 COMMISSIONER AHEARNE: I don't even know what the 6 second meeting is about.
7 CHAIRMAN HENDRIE: It depends on people's schedules.
It seems to me that the matter before us, which deals with 9 trying to get a statement out on what the whole Commission 10 adjudicatory system will do for the nex~ year or so is suffi-11 ciently important to keep driving on it.
12 If you have to sacrifice the next meeting why
- 13 14 15 COMMISSIONER KENNEDY: As a matter of fact, I thought in our recent.statement we indicated we were going to do that. It seems to me it's getting on with the public busi-16 ness. It said we had received petitions from applicants in
- a coup1e of -pt. o'cee*di*ngs *reque:sti,ng issuance of directives on 18 .the way these.proceedings should be donducted, and we said 19 this was an interim response and we would make a generic
)
20 policy decision.
21 And.it seems to me-that there can hardly be any-22 thing more serious before us than that.
23 COMMISSIONER GILINSKY: Well, I .. think there 1.s,
- 24 frankly.
Ace-Federal Reporters, Inc.
25 COMMISSIONER KENNEDY: W~ll, I 1*rn sorry, I do not.
64
,ebl6 Unless somebody can tell me what it is, I certainly do not.
2 It seems to me that is the heart of the Commission:':s job. It I s
- 3 4
5 business, and certainly nothing can be more significant to it than that.
It is public health and safety, after all.
6 CHAIRMAN HENDRIE: It seems to me that we are 7 quite-- I think I am fairly close to being able to launch the 8 next draft of this statement and I'd like to get to that stage 9 rather than leave the tail end open.
10 Would you please redraft the bottom of page 7 using
.. 11 Alan's language and then add to i t the statement that the 12 Commission. -- statements as suitable along the lines-that *the _
- 13 14 Commission will review Staff recommendations to the effect that a project is ready to have a license issued, or some such 15 language as that, and that license issuance will only be after 16 action of the Commission itself, as we said before.
17 .MR. ROSENTHAL: Nlr. Chairman, I have to address the 18 .due process concern that Howard.raises.
19 CHAIRMAN HENDRIE: The question of where one goes if 20 the staff says, Here's a case that's ready to go, coming up 21 this route, and the Commission says, We don't think it's ready
- 22 23 to go, and what is the redress there? It seems to me that Commission*action of that kind would be predicated on the belie
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25 that some equipment or procedure or other arrangement in the project that in the Commission's view was needed for public
65 safety was not adequately in place and that the license should
.bl7 2 not issue presumably until it was or until suitable agreements
- 3 4
5 about getting it in place had been executed.
That is it seems to me that the Staff is not going to come up and say the Updike project is now ready for a CP 6 and we're just going to sit here and say No, we don't like 7 the name and that's it, good-by.
8 So in that case I guess the applicant--
9 COMMISSIONER KENNEDY: We will come back to the 10 General Counsel's most -- one of his earliest statements this 11 morning, because it is precisely that kind of question that I 12 thought his statement was addressed to*, is what is it wetre 13 going to do?
14 Having said all this and all these beautiful words, 15 we have to have some idea of what it is we're going to do. The 16 public has a right to know.
17 CHAIRMAN HENDRIE: In this case, in such a case as 18 I've outlined, I expect the Commission will say that a license 19 ought not to issue until they have put in this piece of equip-20 ment and the Staff is satisfied with it, or there is an agree-21 ment to put i t in on some schedule, or they institute this 22 procedure.or this further.arrangement with local authorities, 23 or whatever has progressed to a satisfactory stage. And we
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25 would say that and they would get on with it.
_J Now suppose I want to argue the point and say No,
66 this piece of equipment is not necessary, this procedure that 2 you want is not necessary. Since it's the Commission that's 3 making that decision it seems to me that's the final decision 4 of the agency and if they don't like i t they can go to court.
5 MR. ROSENTHAL: No.
6 MR. SHAPAR: No. He's entitled to have a hearing 7 on the record.
8 MR. ROSENTHAL: A hearing has to be somewhere 9 CHAIRMAN HENDRIE: Then he can petition for a hear-10 ing.
11 MR. BICKWIT: The Commission is the Staff in this 12 particular situation. The Commission has the Staff functions 13 and you should follow the precise procedures that you would use 14 if the Staff said no, 15 COMMISSIONER BRADFORD: If we set up a hearing we 16 won't be functioning as the Staff.
17 MR. BICKWIT: No, but if the Staff said No, at the 18 last minute there would be a right to a hearing.
19 COMMISSIONER AHEARNE: Do we send i t back then to a 20 Licensing Board?
21 MR. BICKWIT: We have to- c.reate a Licensing Board.
22 COMMISSIONER AHEARNE: Or do we hear i t ourselves?
23 CHAIRMAN HENDRIE: It seems. to me we could do any of
- 24 those.
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25 .MR. SHAPAR: The main point is as a matter of law,
67 the issue can be litigated.
2 MR. ROSENTHAL: Before this agency.
3 CHAIRMAN HENDRIE: Well, maybe we ought to go ahead 4 and say --
5 COMMISSIONER KENNEDY: It ought to be made very 6 clear here that what we are doing is in no way disturbing that, 7 nor is it intended that we so do. It should be made very clear 8 here.
9 MR. SHAPAR: That's precisely why I suggested a 10 different option five minutes ago which was that you don't 11 have this duplicatory procedure, informal for uncontested 12 issues, but that you monitor the case and if you want an issue 13 you identify it as your own sui sponti issue the same way the 14 Appeal Board does.
15 CHAIRMAN HENDRIE: Howard, that's not what the 16 Commission wants to do, for God's sake. On such things we want
- 17 the Staff to come in and say We've thought about it, we believe 18 we are ready to issue on the following bases, and have an 19 opportunity to discuss those points with the Staff and decide 20 whether we agree.
21 To expect us to, in some magical fashion, reach down 22 into the mechanism and pull all of those things up in our 23 direction just isn't what the Board here wants. We want to do
- 24 what we did in the B&W cases, have the NRR come in when they Ace-Federal Reporters, Inc.
25 think they're ready to go and say We think it is ready to go,
68 Commission, and here are the points, and here's why.
2 And then we'll agree or we'll disagree, or agree and 3 disagree in part.
4 I just don't find in your suggestion any way for 5 that to occur except for me to issue a letter to the Staff 6 saying Well, I've been watching a case, Staff, and I want you 7 to come up and do the following.
8 If that's going to be the thing I do in every case 9 I think we could just as well write it down here and let every-10 body know now that that's going to be the case.
11 MR. SHAPAR: You understand you're free to talk 12 to the Staff while the case is going on.
13 COMMISSIONER GILINSKY: Let me understand* Howard's 14 proposal a little better.
15 MR. SHAPAR: If it will advance things I'll be glad 16 to withdraw it.
17 MR. BICKWIT: I certainly think i t would.
18 MR. SHAPAR: I was looking not in your direction 19 but in that direction.
20 MR. BICKWIT: 'Although your suggestion is included, 21 your suggestion is included in the statement.
22 COMMISSIONER GILINSKY: You're suggesting we limit 23 ourselves to specific issues that we ask to be brought up here?
24 MR. SHAPAR: No, not exactly that. What troubles Ace-Federal Reporters, Inc.
25 me about this is that if you follow this procedure the end of
69 the line may be that you disagree with the Staff, which is fine, 2 and you say you want another piece of equipment over and above 3 what the Staff has required.
4 Now under the law as I understand it, and I don't 5 think any lawyer at this table disagrees, if the applicant 6 disagrees he is entitled as a matter of right to a hearing on 7 the record. Okay?
8 That's going to hold the whole-- If that does 9 happen, and maybe, you know, it's a Class IX situation--
10 Perhaps I should use some other terminology.
11 If that does happen, then the delay is inevitable 12 and the delay is substantial. Now I'm trying to find a way of 13 precluding that worst-case situation, and one way of doing it 14 is to act essentially the way the Appeal Board acts, plus the 15 fact if the issues are uncontested, as I view your present 16 ex parte rule, you can be talking to the Staff all along on matters that are not substantive matters in issue.
18 So you can get briefings from the Staff in the middle 19 of a case, and another month later as many briefings as you 20 want. And if you're not satisfied with all those briefings 21 and you see an issue that the Appeal Board is missing and the 22 Staff is missing and the Hearing Board is missing, then set 23 it down as an issue sui sponti and let the responsible Boards 24 deal. with it before the process reaches the end, and you're Ace-Federal Reporters, Inc.
25 not setting up the dichotomy of two different approaches, an
/
70 on-the-record approach and an informal approach.
2 CHAIRMAN HENDRIE: Look, take the case of Salem 3 which is ready damn near to go right now.
4 MR. SHAPAR: That doesn't apply here because-- I 5 would apply it just the way you want to go on Salem because 6 there's no hearing at all.
7 I'm only talking about a situation where you've got 8 a hearing.
.9 CHAIRMAN HENDRIE: I see .
10 But i t still requires this process of the Commission 11 getting interim briefings during the progress of the case 12 to try to identify all of those things which ultimately it 13 would have wanted to deal with specially, and then to get those 14 into the existing into the on-going hearing on that case.
15 And it just seems to me that the sense of the 16 Commission's desire for involvement was Yes, there may indeed 17 be and there certainly will be briefings on generic areas as 18 we go down the line, but the involvement in licensing was 19 rather to take'a look at the case when it had matured just 20 about to the issuance stage and see if we believed that every-21 thing that should be included was included.
22 And I find it difficult to --
23 COMMISSIONER GILINSKY: Something that Howard said 24 appeals to me which is that in this phase that's covered by Ace-Federal Reporters, Inc.
25 the proposed statement the Commission ought to be keeping a
71 ej,3 closer watch on the licensing process in general.
2 We've written into the statement that none of us ad-
- 3 4
5 I
mits our ability to reach down and take up issues just as --
you know, ability we had before. And I think that we should be paying much closer attention to the process quite apart 6 from having set up procedures for the Appeal Board to monitor 7 decisions and then convey to us its recommendations on stays.
8 And I wonder whether we couldn't follow Howard's 9 approach, at least to the extent feasible; that is, it wouldn't 10 rule out 11 CHAIR.MAL~ HENDRIE: Actually, it wouldn't require 12 any change here but you still have to decide what you're going 13 to do with uncontested issues, whether you want a chance to 14 review them with the Staff or whether you -- that is, whether 15 you want the Staff in effect to bring .them to you in summary 16 form at some point, or whether you want to leave it to the 17 Commission to reach in and identify them itself, but keeping 18 close track of the proceedings.
19 I dontt think it is in any way-- You know, the 20 ability to do that or the proposition that we do that, I dontt 21 think is affected in fact by the language here.
22 COMMISSIONER GILINSKY: No, i t means assigning a 23 certain number of persons to engage in activities.
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25 COMMISSIONER AHEARNE: I thought that had been al-ready the understanding, going back several meetings before.
72 I thought we had agreed that we were going to have to monitor 2 all those proceedings.
3 COMMISSIONER GILINSKY: Is that the case in the 4 General Counsel's office?
5 MR. BICKWIT: Do we monitor now? We don't, except 6 in particular proceedings.
, 7- I thought_ Howard's suggestion that we do so was a ,
a good one, and that we should try to do that.
9 The question raised by the Cb,p.:irman is if something 10 slips through our fingers, which it just might, do-you want 11 the final look at what the Staff has done?
12 COMMISSIONER AHEARNE: I thought the question is 13 when does the Staff give that final look?
14 MR. BICKWIT: That question-- I wo~ld suggest they 15 ought to give it to you after you have dealt with the Appeal I
16 Board situation.
17 MR. ROSENTHAL: I don't follow this. Early on in 18
- the proceeding, if there*is an operating licen~e proceeding 19 at all, everyone will know what matters have been placed in 20 controversy. They'll knowfwhat are the ones that are going 21 to go through the adjudicatory process.
22 Now to be sure in a particular case there may be 23 additional issues considered by the Board on its own initiative, 24 the Licensing Board or an Appeal Board. But the shape of the Ace-Federal Reporters,* 1nc.
25 proceeding in most instances is pretty well determined early on.
73 fi,l25 Now if you've got an operating license proceeding 2 that is likely to go for a year, a year and a half or whatever,
-i 3 4
through the Licensing Board and the appellate stages, now what 1s wrong with the Commission, during that period of time, being briefed by the Staff on matters that have not been placed in 5
6 controversy, because otherwise if the Commission is going to 7 take the first look at the so-called uncontested issues after 8 the Appeal Board decision, then you might as well scrap the 9 whole 20 days again as applies to operating license proceedings 10 because in all of those proceedings you're going to have the
-Commission, over a period that is undoubtedly going to extend 11 12 far beyond 20 days, sitting down with the Staff or whatever, 13 discussing with them the aspects of the review which were not 14 encompassed by the very limited number of issues that got
\
15 considered in the adjudicatory proceeding.
16 COMMISSIONER KENNEDY: Putting things sequentially 11 which could*be <done 'in p:arallel-; i t seems to me you I re right.
18 MR. BICKWIT: You raised the question*to me I though .
19 MR. ROSENTHAL: Well, wherever.
20 COMMISSIONER AHEARNE: Can I ask a question in
.i 21 22 clarification of what he's saying?
Let's suppose there's. an issue, Alan, that is not
.I 23 24 Ace-Federal Reporters, Inc.
25 placed in controversy, and so the Staff reviews i t with us and at some stage either the Licensing Board or the Appeal Board places i t in controversy.
Is there any legal problem now with us having 2 addressed directly the Staff on that issue?
3 MR. ROSENTHAL: No, I don't think so. General Couns 1 4 might have a different view. I don't think so, so long as 5 your conversations with the Staff were prior to it being made 6 an issue.
7 I think once it became an issue and then was going i
8 to come up to you through the adjudicatory chain you would have 9 to terminate, because you have discussions with the STaff I 10 assume about particular reactors before they get into adju-11 dication all the time.
12 COMMISSIONER AHEARNE: So there's no problem with 13 isolating out not the fact that that reactor is now going into 14 a proceeding but the specific issue with regard to that reactor 15 MR. ROSENTHAL: I don't think you would want to talk 16 to the Staff before you determine whether there was going to 17 be a contest, an adjudicatory proceeding and if so, what were 18 the matters being put in controversy, and I don't think you 19 would want to discuss with the Staff any of the matters that 20 were in controversy.
21 I don't think that there's a problem about your 22 discussing with the Staff matter X and i t later turns out that 23 an Appeal Board or a Licensing Board raises X on its own ini-
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25 tiative, just so long as that discussion took place before .it became an adjudicatory matter.
75
-~27 ' 1 2 probl~m.
MR. BICKWIT: I agree, I don't think there's a But -- and this is the only "but" which accounts for
- 3 4
5 our sequential suggestion rather than moving in parallel, is that you're going to get into cumbersome situations. If you have the Staff in here in a contested case and you're talking about 6 uncontested issues, I can see situations where they will just 7 slop over into the contested matter and it's going to make for 8 some difficulties.
9 We will have to be sitting here with some difficul-10 ties.
11 CHAIRMAN HENDRIE: Well, but the way this thing 12 lays out, the Licensing Board comes to its initial decision 13 and there then ensues a two-month period in which the Appeal 14 Board is grinding on the case, and then get 20 days beyond 15 that in which the Commission hopes to be able to say something.
16 Maybe this will take more time is what we say, but we say 17 something.
18 So you 1*ve got 80 days after the initial decision 19 of the Licensing Board so that the -- You know, to some extent 20 the dust and fury of the controversy is at the lower level-but
.( 21 22 would have died a little bit, and you have three months, blaste near, to have a series of discussions with the STaff on the so-called uncontested items to see what we think of those.
23 24 _ So that as you come toward the end of this period Ace-Federal Reporters, Inc.
25 i t seems to me you might very well be in shape to know what
76 eb28 you thought about the uncontested issues, and you're now at the
~ .. 2 60-day point with the Appeal Board's view on contested ones.
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s And you might indeed be able to draw rapidly then to a con-clusion, at least I would hope we would, on most cases.
MR. BICKWIT: Agreed. I simply don't think you 6 ought to obligate yourself to deal with these prior to the 7 Appeal Board decision * . I think it would be difficult to--
8 There will be some situations where it will be difficult and 9 you shouldn't set up a procedure where in all cases you'll be
, 10 going in parallel, recognizing that in some cases you'll have 11 to go sequentially.
12 COMMISSIONER AHEARNE: But you're not foreclosing 13 i t because there ts a lot of interactions about the points that 14 both Howard and Alan raise; since you are inclined to step 15 into the middle of a year and a half proceeding, it would be 16 beneficial.
'17 'CHAIRMAN HENDRIE: 'Well, a while ago I. sketched out 18 some comments about what I thought the redrafting at the bottom 19 of page 7 and the top of page 8
- ought to look like, and I 20 guess I haven't changed my mind.
.~ 21 22 23 In view of the comments about rights of parties over here I guess I might add the policy statement could note that the rights of.applicants under whatever that provision of the
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25 law is are not affected by this, an oblique way of saying if you don't like what.we. decide in any particular case you've
77
.9 2 got a right to . a hearin.g.
-i COMMISSIONER BRADFORD: Nothing in this policy state 3 ment repeals the Constitution.
4 CHAIRMAN HENDRIE: I'm prepared to vote for that.
5 COMMISSIONER BRADFORD: The rest of it I think is 6 going to be fine as it is. I would like to see this last 7 paragraph written out.
8 CHAIRMAN HENDRIE: I think we would all like to see 9 II the redraft. There are several pl.aces. where. lan,guage is 10 II changed, and I don't propose to ask you right now to come to a 11 II final decision on i t because that will postpone things for yet 12 II another hour while we go back and sort these things out.
13 But we'll see the language and we may want to argue 14 II about it again.
15 II What I propose is to tell the General Counsel to re-16 11 draft i t as rapidly as you can and get it back to us, and not ifll keep scheduling this back on the agenda, and see if we can 18 II drive on through and accomplish an agreed-upon policy statement.
19 11 We owe it to ourselves, to the Boards, to the people 20 II entangled in our processes, and people in general.
21 It sounds like a speech you were making, Vic, months 22 11 ago.
23 COMMISSIONER GILINSKY: We should have done this in 24 II May*
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25 COMMISSIONER KENNEDY: One last question on this,
78 eb30 Counsel
- 2 It is your judgment that in fact the policy state-
- 3 4
5 ment essentially as we have now discussed it and agreed will constitute an effective response to the petitions- that are before us?
6 MR. BICKWIT: Yes.
7 COMMISSIONER KENNEDY: Okay.
8 CHAIRMAN HENDRIE: Good. Thank you very much.
9 (Whereupon, at 11:40 a.m., the meeting of the 10 Commissioners was concluded.)
11 12 13 14 15 16 17 18 19 20 21 22 23
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25