ML22230A105

Tran-M790927: Public Meeting Discussion of SECY-79-397 - Proceeding to Assess Commission Confidence in Safe Disposal of Nuclear Wastes

ML22230A105
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Issue date:	09/27/1979
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Tran-M790927
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{{#Wiki_filter:RETURN TO SECRETARIAT RECORDS NUCLEAR REGULATORY COM,"'ISS!ON IN THE MATTER OF: PUBLIC MEETING DISCUSSION OF SECY-79-397 - PROCEEDING TO ASSESS COMMISSION CONFIDENCE IN SAFE DISPOSAL OF NUCLEAR WASTES Pl ace - Washington, D. C. Date - Thursday, 27 September 1979 Pages 1-64 Telephone: (202) 347-3700 ACE - FEDERAL REPORTERS, li'l"C. Offici.al Reporters 4.44 North Copitol Street

• Washington, D.C 20001 NATIONWIDE COVERAGE* DAILY

1 DI SCLAD*IBR This is an unofficial transcript of a meeting of the United States Nuclear Regulatory Commission held on Thursday 1 27 September 1979in t.'-1e Cornmissions's offices at 1717 H Street, N. W., Washington, D. C. The meeting was open to public attendance and observation. This transcript has not been reviewed 1 corrected, or edited, and it may contain inaccuracies. The transcript is intended solely for general informational purposes. As provided by 10 CFR 9.103, it is not part of the formal or informal record of decision of the matters discussed. Expressions of opinion in this transcript do not necessarily reflect final determinations or beliefs. No pleading or other paper may be filed with the Commission in any proceeding a,s the result of or addressed to any statement or argument contain~d herein, except as the Commission may authorize.

2 1367 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3 PUBLIC MEETING 4 DISCUSSION OF SECY-79-397_- PROCEEDING TO ASSESS 5 COMMISSION CONFIDENCE IN SAFE DISPOSAL OF NUCLEAR WASTES 6 7 Room 1130 8 1717 H Street, N. W. Washington, D. C. 9 Thursd~y, 27 September 1979 10 The Commission met at 9:35 a.m.,pursuant to notice. ll PRESENT: 12 VICTOR GILINSKY, Commissioner (presiding) 13 RICHARDT. KENNEDY, Commissioner 14 PETER A. BRADFORD, Commissioner 15 JOHN F. AHEARNE, Commissioner 16 ALSO PRESENT: 17 Messrs. Cunningham, Gossick, Bickwit, Ostrach, Hoyle, and 18 Dir:cks. 19 20 21 22

  -                   23 24 Ace-Federal Reporters, Inc.

25

3 7367 01 01

  'MM      2 P RO CE E D I NG S COMMISSIONER GILINSKY:  Let"s get started. The 3 subject this morning is the nature of the proceeding that 4 the commission might* conduct in order to assess where it 5 stands on the question of the safe disposal of nuclear 6 wastes, the commission"s confidence in the eventual safe 7 disposal of such wastes and how that might relate to the 8 reactor licensing process.

9 We have a paper from both the general counsel and 10 the executive legal director on this. I take it the lead 11 was taken by the general counsel. 12 MR. BICKWIT: That"s true. 13 COMMISSIONER GILINSKY: Are you prepared to 14 discuss that? 15 MR. BICKWIT: Yes. 16 COMMISSIONER GILINSKY: We are in single-wing 17 formation here, but I think we are ready to hear from you. 18 'MR. B!CKWIT: Fine. This was,* as you said, a 19 joint paper -- general counsel"s office and executive legal 20 director"s o+/-fice -- also coordinated with NMSS. 21 Steve Ostrach actually took the lead on it. I will take you 22 through the most basic decisions involved in the paper, and 23 then I am going to ask Steve to go through the component 24 questions. 25 The basic issue which has to be de£ided here is

4 7367 01 02

• MM on e w hi c h wa s di s cu s s e d i n pr e tty de ta i led f a sh i on a t the 2 last meeting on this subject, which is, basically: Do you 3 wan~ to have a board or some other subordinate entity 4 conduct the basic aspects of this proceeding, including a 5 hearing if one is held; or do you want to have the 6 co~nission conducting all or part of that proceeding, all or 7 a major part of that proceeding?

8 In reviewing the transcript of the preceding 9 discussion, it was clear to us that a majority of the 10 commission favored involving the commis~ion in a major way, 11 a way unlike the way it is involved in a typical rulemaking 12 proceeding, such as the clearance rule, in this rule.

 -        13 14 15 I think the basic options available to you are:

to consider -- to reconsider that question and add to it a subordinate question, which is: putting the options as best 16 we can, do you want the commission to handle proceeding, 17 including a hearing; do you want a board or other lo subordinate entity to do it; or do you want the commission, 19 as we proposed, do you want ~o divide this proceeding into 20 two stages, having a subordinate entity conduct the first 21 stage of it, a preliminary stage, a prehearing stage and 22 have the commission if there is a hearing conduct that or 23 any secondary stage other than a hearing that might be 24 prescribed. 25 And I think, before we go through all of what we

5 736 7 0 I 03

  'MM        2 have proposed here, the commission ought to try to come
                .. ,down .,.on that p,ar.ti-cular.,q.ue.stion. We have presented pros 3      ~nd cons. Pros and cons were presented in the previous 4      meeting. We can go through them, if you like, but to some 5      degree I think we would be replowing old ground if you did.

6 COMMISSIONER AHEARNE: Could you describe a little 7 bit about how you would see this individual that would be 8 running this prehearing process, pulling together the 9 material? Would you envision a special staff being attached 10 to him, an OP, OGC, someone to help pull this together, and 11 him making a presentation to the commission? 12 COMMISSIONER GILINSKY: Before you answer that,

  -         13 14 15 is Steve going to run through MR. BICKWIT:      Steve can run through --

COMMISSIONER GI LINSKY: His paper briefly? 16 MR. BICKWIT: We can do ic that way. But since so 17 much of what we say here is dependent on this threshold 18 decision, I think it probably makes sense for you to focus 19 on that before running through it. 20 COMMISSIONER GILINSKY: I don"t think three of us 21 are going to decide how we are going to conduct that 22 proceeding here today. 23 MR. BICKWIT: That"s your choice. 24 COMMISSIONER KENNEDY: I don't care. COMMISSIONER GILINSKY: That-"s certainly our legal 2;5

6 7367 01 04

 -   MM       quorum of the commission.

2 COMMISSIONER KENNEDY: I am prepared to decide, 3 but I would like to hear Steve go down through the whole 4 panoply of issues and options as they have been described. 5 (At 9:45 a.m., Commissioner Bradford arrives.) 6 MR. OSTRACH: Commissioner, our understanding, 7 that the individual or presiding office would be assisted, 8 a t l e as t i n i t i a 11 y , p e r ha p s by de d i ca t e d o GC or o PE pe rs on , 9 not full-time dedicated, but assigned OPE and OGC per son. 10 The question of staff partici patibn is one that 11 our office is studying in light of recent judicial decision, 12 the whole box office decision, the Hercules decision, which 13 may or may not be applicable to the commission in this type 14 of rulemaking, and may or may not therefore place certain 15 constraints bn the way in which staff can both be a 16 participant in the sense we describe it here and be involved 17 in directly advising the presiding office of the commission. 18 And I don't think at this time that we are really 19 prepared to discuss what our legal conclusion is on even the 20 options that are available to the commission. Certainly one 21 of them, if it were permissible, would be to either 22 assign -- 23 COMMISSIONER KENNEDY: Excuse me. If that-"s the 24 case, I withdraw my comment earlier. 25 (Laughter.)

7 7367 0 I 05

  .MM                    COMMISSIONER KENNEDY:     If you are not prepared to 2  d,iscuss the lei,gal .implications of the options before us, 3 then I guess I don't f.eel prepared to make a decision as to 4 which options should be pursued.

5 MR. OSTRACH: That's one narrow option, of which 6 there are two different ways it can be accomplished. If the 7 commission desires the presiding officer to have assistance 8 of staff, there is no question that the outset of the 9 proceeding staff can designate certain individuals who would 10 be his assistants to work with him or .in additio~ to him and 11 do that through the proceeding. Then there would be no 12 legal problems at all.

  -        13 14 15 The only question is:     Would sta+/-f have to designate those people at the outset of the proceeding, or could they wait until thd end of the proceeding, and they 16  could be people who played a role in staff's participation.

17 While the legal requirement is something we~re not 18 prepared to speak about, if the commission wished to avoid 19 the legal question entirely, we could simply draw the lin~ 20 at the outset of the proceeding. 21 So, the question of whether or not you want the 1 22 presiding officer, if you srould choose to have one, to have 23 staff assistants is one you can decide without worrying 24 about the legal implications, becau~e regardless of how the 25 legal issue cuts, we can do it. It can be done legally.

8 7367 01 06

• MM It's only a question of whether he gets his people from the 2 outset or whether they are parceled off to him at the end.

3 MR. BICKWIT: What Steve is referring t.o is the 4 whole issue of ex pa rte pro hi bi ti ans in r.u l emak ing is under 5 consideration by our office, and we don't f.eel you have to 6 make decisions on that question, especially since we plan to 7 be presenting recommendations shortly. 8 COMMISSIONER AHEARNE: I think we would have to 9 make a decision prior to the start of the hearing. 10 i\\R. OST RACH: Yes. 11 MR. BICKWIT: We don't see any problem with that. 12 I just have a note here that the chairman's adminLstrati ve 13 assistant says the chairman ha~ no problem with the 14 commission taking*action today. 15 COMMISS-IONER. AHEARNE: The rest of the question 16 was did you say that after this presiding affice had run 17 the process that he or she had under way and completed it 18 that they -would then come and give a pre sen ta tion or pre pare 19 a package, here are the pertinent parts? What was that 20 communication like that you had in mind? 21 MR. OSTRACH: That could be done at the 22 commission's discretion. My personal expectation would be 23 that the presiding officer would prepare for the commission 24 something similar but grander than what the general 25 counsel's office does in an adjudication before the

9 7367 01 07

  .MM        commission, a summary of the briefs, principal issues, 2 ,sugg,e~sted lin,e,s of inquiry. I am assuming that the next 3 stage would be a hearing.        He would summarize the position 4 to the parties as laid out.        He might PJint to potential 5  inconsistencies or the fact that one participant had 6 strongly attacked the credibility of a certain argument of 7 another participant.        He would suggest lines the commission 8 might wish to address in a hearing.

9 He would also, I expect, prepare a proposed second 10 prehearing order, which the commission itself would issue, 11 suggesting who the participants to be asked to participate 12 in the hearing would be. 13 COMMISSIONER AHEARNE: But you did not have in 14 mind, for example, a proposed finding? 15 MR. OSTRACH: Not at that stage, sir, not before 16 the hearing, if the commission wants a hearing. 17 COMM! SS I ONER AHEARNE: Thanks, Steve. 18 MR. OSTRACH: The overall structure we proposed 19 for the proceeding is phase I. It is one that can be 20 changed as the proceeding goes along, depending on how the 21 commission views the participation to date. The initial 22 stage would be publication of a detailed Federal Register 23 ncitice, somewhat along the lines of the one we attach to our 24 paper, set out the goals of the proceeding, and lay at least 25 tentative ground rules for the re~t of the proceeding.

10 7367 01 08

  .MM                      It would provide that 30 days after publication of 2   the notice individuals or groups could file either comments 3    on the rulemaking in general or, if they wished a more 4   extensive role, file statements of intent to particpate in 5   the rulemaking. Their statements of intent would identify 6   who they are, what their concerns are, what their 7   qualifications are to participate in the rulemaking.

8 Following that date, over the next 30 days the 9 presiding officer, should there be one, would work with the 10 groups of individuals that have identified themselves as l I participants to attempt to achieve some consolidation and to 12 schedule the next stages of the procaeding.

  -       13 14 15 In particular, he would try and reach agreement amongst them as to the timing of the statements of position and the cro.ss statements of position.

16 Since, as we suggest, we believe it would be 17 helpful if certain of the government agencies that play a 18 lead role in waste disposal, particularly, DOE, gave their l':,i statements earlier than the other participants_,, statements 20 so they could be addressed, the hearing -- the presiding 21 officer would attempt to work wih the DOE representatives 22 and the other representatives to reach some sort of 23 agrB~ment on deadlines of filing and again, to reach 24 agreements on consolidati.on so that there wouldn"t be 30 25 filings on a certain issue or something, perhaps division of

11 7 367 01 09

  .MM         issues amongst the participants.

2 And to the extent there are any questions about 3 information, the availability of information, the presiding 4 officer would attempt to resolve those. 5 The DOE statement would be received. Following 6 that, the statements of the other pa~ticipants would be 7 received. That's a total of approximately 120 days after 8 the notice of publication. Again, that's a flexible date

           '} that the presiding officer would set in the scheduling 10  concerns. Another 60 days latef, the cross statements.

JI We have given a fairly substantial amount of time 12 to the cross statements compared to the statements, saying 13 90 days to prepare the statements and 60 for the cross, 14 because we think that many of the participants, those with 15 less institution.al .resources, will attempt to make their 16 case largely in a counter-punching fashion, and so their 17 cross statements will be their major contribution and they 18 deserve a substantial amount of time to prepare those. 19 COMMISSIONER KENNEDY: Can the inti tial statements 20 then be reduced? Couldn't the time for the intitial 21 statements be reduced? 22 MR. OSTRACH: The initial statements will be those 23 carrying the ball for the parties that are tryir:ig to carry 24 the ball. I think, in a sense, it is possible that parties 25 will break down into two groups: those suggesting their

12 /Jo7 UI 10

  -MM        strong confidence that there will be a waste disposal 2 facility; and those questioning that; one suggesting there 3 is strong confidence --

4 COMMISSIONER KENNEDY: How about those that don't 5 care?* 6 MR. OSTRACH: They will not have filed anything 7 and go

• about
• their lives, I suppose
• 8 (Laughter.)

9 MR. OSTRACH: So, I think each group deserves a 10 substantial amoUht of time to file their st~tement~. 11 After the cro~s statements have been received, the 12 presiding officer will summarize the documenti, prepare some 13 sort of presentation to the commission, work with the 14 commission on the further stages of the hearing. 15 *should the commission decide at that time to 16 proc.eed with a hearing of the sort we have discussed in the 17 paper 1 which is a legislative hearing, the presiding officer IS with the commission, the commission would i.ssue a second 19 prehearing order which would specify which participant it 20 wished to hear from on what issues, allocate time, set 21 dates, and provide further procedures. 22 We would suggest, if you do go into a legislative 23 hearing, again, it would perhaps be best to go with the DOE 24 and the USGS ~itneBses first and have the other participants 25 have an opportunity to go second.

13 r36 7 0 l l1

  .MM                      COMMISSIONER GILINSKY:  Who would conduct this 2 hearing at this stage?

3 MR. OSTRACH: At this stage, according to the 4 recommendation we have given here, it would be the 5 commission, the five commissioners chaired by the chairman. 6 MR. BICKWIT: With the assistance of a presiding 7 officer who conducted the preliminary stages of the 8 proceeding. 9 COMMISSIONER GILINSKY: But who will not have 10 conducted a hearing? 11 MR. BICKWIT: Right. 12 MR. OSTRACH: In this proceeding. 13 COMMISSIONER GILINSKY: In this proceeding. 14 MR. OSTRACH: Yes, sir. 15 16 a;,-{ 17 18 19 20 21 22 23 24 25

14 CR 7367 MELTZER t-2 mte 1 MR. OSTRACH: The second prehearing order would have 2 provided some procedure by which the participants would submit 3 questions to the Commission to ask of other participants, at 4 your discretion. We noticed the staff informed us in the S-3, 5 for exampl~, these questions, referred questions, if -you will, 6 took up by a substantial amount the bulk of time that was 7 ~ctually spent in hearings. The questions asked by the 8 Hearing Board themselves and the direct statements of the 9 participants took up less .time than referred questions. iO So we would have to be careful in tailoring the 11 procedures of the hearing to allow an extensive amount of 12 time for that. 13 Following the hearing, the Commission could, if it 14 wished and it determined that it was appropriate, schedule 15 a cross-examination phase. If it did that, it would have the 16 cross-examination phase again conducted by the Commission, 17 chaired by the Chairman, with the assistance of the Presiding 18 Officer. 19 Following that phase, if there is any, we would 20 suggest that the Commission convene a working group that would 21 consist of OGC personnel, OPE personnel, appropriate staff 22 personnel.--! say "appropriate"; it depends on how it'~

23. structureo -- and a presiding officer to prepare a draft of a 24 rule and supporting statement of .the Commission. It would Ace-Federal Reporters, Inc.

25 then be.presented to the Commission, approved by.the

15 mte 2

-                      3 2

Commission. Whether the Commission could publish that as a final rule or an effective rule depends on the extent to which that stated rule had been previously forecasted in the 4 original notice of rulemaking. 5 We believe that if the rule that is ultimately 6 promulgated is very similar to the policy set forth in the 7 denial of the NRDC petition in 1977, you could ,simply promulgat 8 it as a final rule. We have set forth that as one possibility 9 w,i th -sufficiently cl-ari ty in .the proposed notice so that you 10 would not need to again publish it for comment. 11 If, however, the rule marked a change in policy or 12 was based on substantially different date, we believe you 13 would.have to publiph the rule as a proposed rule,*solicit 14 35, 40, or 60 days more comment, and then analyze that comment, 15 and then publish it for a final rule. In ou~ judgment, the 16 total amount of time this rulemaking proceeding would take 17 would be between 14.and 18 months. 18 The major uncertainties would be in the area of the 19 c;1.mount of time i t would take to actually go from the hearing 20 to the issuance of a rule and also -- that would be it. 21 COMMISSIONER GILINSKY: The question comes up when 22 we discuss the possibility of Commission involvement, just 23 how much of the Commissioner's time would be involved here. 24 Do you have any estimate of that? Ace-Federal Reporters, Inc. 25 MR. OSTRACH:

• In the hearing itself, we estimate

-rote 3 16 ten.hearing days would be fully adequate. And a hearing day 2 is not a full day, but the major part of your business day 3 would be spent in the hearings.

                      *4                 COMMISSIONER GILINSKY:     This* covers the first phase 5  -or does .it .also allow for possible cross-examination?

6 . MR. OSTRACH: - That's. the first phase. It. would be 7

• difficult_ to estimate how much. time we'd spent in. cross,..

                       ',8   examination. I have-no idea how many issues would be set for 9   cross_;examination- *or how that-Mouf]:d 'go.

10 COMMISSIONER GILINSKY: Have you considered the 11 possibility of the Commission, after having conducted the 12 first phase, asking the presiding ofiicer to conduct -hearings 13 on very, specific questions, and then report back to the 14 Commission? 15 - MR. OSTRACH: We haven't considered that, sir. That 16 *would certainly be within the realm of possibility. I have 17 questions of,concerns about the possibility of directing the 18 .presidirig officer to hold cross~e~amination. I believe those 19 who heard the- direct statements*should also hear the cross 20 . on the direct. statements. 21 But if it is a question of the need for further 22 hearings on selected issues and cre~tion of a record, it 23 would:be referred td the Commission. 24 COMMISSIONER GILINSKY: We're looking in- more Ace-Federal Reporters; Inc. 25 detail on certain matters?

mte 4 17 MR. OSTRACH: Certainly that wuld be feasible. 2 Again, the process that we outline here is capable 3 of such modification as the issue develops and as your percep-4 .tions of it change. 5 COMMISSIONER GILINSKY: There's-no requirement that 6 there be a three-man board in the rulemaking, is there? 7 MR. OSTRACH: No, sir. 8 COMMISSIONER GILINSKY: You are finished? 9 MR. OSTRACH: No, *sir. iO COMMISSIONER GILINSKY: I'm sorry. 11 COMMISSIONER KENNEDY: He has hardly begun.

-                     12 13 14 MR. OSTRACH:   On the subject. of the information available to the parties, we suggest, since'this is a rule-making, we follow the precedent set in prior Commission 15    rulemakings of this scale and not simply comport it with the 16    10 CFR Part 2 adjudicatory position. Instead, we suggest what 17    be done is that the Commission itself establish a large data 18    base, which would consist    of the IRG report, backup documents 19    on the IRG report, and the staff compile a do'CTu"'D.ent  library 20    of what it believes to be the major waste-related documents, 21    waste as subject matter, not characterization.

22 Furthermore, we believe this would be supplemented 23 **by *a requirement that .any participant making an assertion or 24 raising a point would be required to supplement their state-Ace-Federal Reporters, Inc. 25 ment with the documents that underlie that, thus making them

mte 5 18 available for attack or rebuttal in the, cross statements. 2 In this fashion,. we believe the Cornrnissio'n -- that all the 3 participants would have access to all of the material which 4 the Corr.mission could rely ori in the. rulemaking. we believe 5 that is fully adequate to satisfy -- certainly it's adequate 6 to satisfydue process administrative procedure. We believe 7 *it's.a fair way of ensuring all parties access to the same 8 information, without bogging down the proceeding with extra-9 . neous. matters about discove'ry and *what people have on their 10 minds.* 11 COMMISSIONER'BRADFORD:

• Why is discovery an extraneou

-                      12

• 13 14 matter?

MR. OSTRACH: It may be an extraneous matter if i t

                             *turns.up material that '.is not otherwise going to form the 15

• basis for the Commission. rulemaking on this issue.

16 COMMISSIONER.BRADFORD: Presumably, Jt wouldn't 17 turn up material that didn't form the basis for one of the 18 parties' conclus.ions, . or* else they wouldn't furnish it. 19 MR. OSTRACH: *.

• They wouldn't have sought discovery, 20 sir?

COMMISSIONER BRADFORD: I assume what the discoveries 22 *. will go to is the basis for the conclusions that the parties 24 MR. OSTRACH: Yes, an attempt to produce evidence Ace-Federal A11porters, Inc, 25 from another ,pa.rty.

rote 6 19 COMMISSIONER BRADFORD: Do all discovered documents 2 automatically go into the record? 3 MR. OSTRACH: Yes, sir, unless they are produced under a protective order or some such similar device. 5 It is, of course, true that the parties can volun-6 tarily conduct discovery amongst themselves without invoking 7 process, administrative process, and to the extent that they 8 do that, those documents would go into the public record. 9 They could *adopt. an open .files .. policy. 10 COMMISSIONER BRADFORD: Let's see. If a party

                      ,,    discovers a set of documents from another party, you are 12    saying that, regardless of whether, upon reading through them, 13    the party perceives or feels they are of any use, they all go 14    into the record and must-in some way be read and considered 15    by the decisionmaker?

16 MR. OSTRACH: They don't have to be read and consi-17 dered by the decisionmakers, no, sir. If no party points to 18 them, I don't see why the decisionmaker would come across 19 them.himself. They will just accumulate in the file. 20 COMMISSIONER BRADFORD: So they wouldn't clutter 21 things up very badly. 22 MR. OSTRACH: No,* sir. They would distract the

                     ,2.3  .,parties' .. attention. *

• They would lead to the introduction of 24 concerns. There would be discovery arguments. The imposition Ace-Ftd1r1I A1port1r1, Inc, 2S of a discovery requirement might serve as an impediment to

          )mte 7                                                                    20 parties -- participants willing to participate in the rule-2    making.

3 I believe you can say that it is one thing to accept 4 as a burden that you have to prepare a statement ands-upport 5 your statement; itJs another thing to subject yourself to 6 extensive discovery process that can be conducted against 7 you by other participants, and that you have to participate in. 8 We suggest that the Commission could keep, as a 9 safety valve, a--very, very/strict discovery rule, providing 10 that the process could be used -- and this was as it was done 11 in GESMO in ECCS, that in exceptional circumstances, when the 12 .Commission itself finds that compelling justification has been 13 shown, compelled discovery under subpoena could be achieved. 14 COMMISSIONER BRADFORD: What does the exceptional 15 circumstances test add to that statement? Why aren't compelling 16 circumstances enough'? Why isn't the compelling showing*:*-- 17 MR. OSTRACH: Frankly, I copied that, sir, from the 18 previous two. rulemakings.

• I would guess that the extra value 19 of the exceptiona1 circumstances is that it indicates the 20 Commission doesn't expect, at least prospectively, that this 21 be done very .often in the proceeding; that compelling justifi-22 cation isn't something that will come up all the time. It is

2) a different factor.

24 COMMISSIONER BRADFORD: I would think that if I felt . Ace-Fed1r1I Reporters, Inc. 25 compelled by the showing, I wouldn't want also to have to

rote s* 21 find that the circumstances were .exceptional. 2 What would be the drawback to making discovery 3 making the availability of.discovery an item for comment by 4 the parties in the ,first round of their -submissions? Pre-5 sumably, at that point any party who felt that if discovery

                       .6   *were allowed he would probably stand up -- i t could alert us 7   . to the matter.

8 MR.. OS TRACH : Perhaps I will address the first 9 . round of comment. .To the

• extent *that :the discovery question 10 remains open~ subject to subsequent change, *you run the risk 11 .that parties are- not -- well,. that they presumably will be 12 simultaneously going ahead with their statements and partici-l3
• pation.

14 If you thert change your mind-and discover you have 15 . just set -- you have set yourself back two steps, since you 16 are ,now. star,ting ,,parties; .all over* again with discovery, *which 17 has to be completed before they again prepare statements. 18 COMMISSIONER BRADFORD: I'm not talking about a 19 change of mind.

• I 'rn just talking about "disc:::overy
• prior to 20 .the hearing itself, based on the written submissions.

21 MR. OSTRACH: Oh, that wouldn't have any in other 22 -words,. a party suggests he needs* discovery to test the under-

                             . lying cas'Sertion in such and such a document; they have some

• 24 reason to 'believe that a participant may.have .another study Ace-Fed1rf F11port1ra, Inc, 25 **that refutes their position. That *could be .a matter that

. mte 9 22

• 1 2

3 could be provided for in the second prehearing order. I

                             . don't think _that would -necessari:ly dis.rupt the. function of the proceeding at all.      -It could very_ easily be accommodated at 4     that stage.

5 There are two other factors that should be pointed 6 out. All government agencies, Commission and Department of 7 Energy, are subject to the FOIA.

• So, while there's no discove 8 as such *provided against the_Commission, the availability of

                        *9     the FOIA- insures any relevant* document's.* any participant wants

• 10 to get from a government-agency, they'll be able to get their 11 hands on. I believe discovery rules in these circumstances

  -                     12 13 14 would be coextensive with the FOIA.
                                          *coMMISSIONERBRADFORD:

perhaps except for the timing. That's pr~bably right, I think before I - relied exclu-15 sively ontheFOIA, I want to be sure that the-times for 16 responses arid appeals under .the .FOik.were consistent with the 17 schedule we set for-the -hearing. 18 MR. OSTRACH: If anything, they_would be shorter. 19 The FOIA, speaking as~ ptactitioner, has eitraordinarily

                     *20        painful time deadlin~s; 10 days for initiar*~esponse, 2D days 21*

• JO working *days for initial response, 20 workin~ days for .

22 appeal. Traditionally, discovery.response time ~s 30 days.

                      .23' - A negative. resp'cins*e only tr*iggers an effort . to enforce .

24 . I-would think.the FOIA wouldbe at least as speedy Ae1°Fecler1I Reponer1; Inc,

2S . as discovery. *. The, one difference, I suppose, is the FOIA

rote 10 23-type proceeding isn't so clearly linked to the rulemaking 2 proceeding so that a party could- transfer to the presiding 3 officer and the Commission his concerns that he was being held 4 up or that he needed some additional time because his requests 5 weren't being met. 6 But I think in _practical terms, I don't think that 7 would be a problem. 8 COMMISSIONER BRADFORD: That's one. The other is 9 the final arbiter under 'the FOIA, short of the courts, is the 10 agency itself from which the document is being sought. If it 11 were being sought under discovery, then it's conceivable that 12 the presiding officer would wind up reviewing a particular 13 document and deciding on its pertinency or other -- 14 MR. OSTRACH: I believe with respect to another 15 agency -- I'm not -- 16 MR. BICKWIT: I think so. 17 MR. OSTRACH: I imagine the Commission does have an 18 authority on that. Section 16l(c) in the Atomic Energy Act 19 gives -us authority over other agencies of the government. So 20 I imagine the Commission could issue compulsory process against 21 another agen~y to support a discovery claim. I would think 22 that would be a rather extraordinary set of circumstances 23 -and one that I think the Commission would probably wish to 24 avoid if at all possible. Ace-Federal Reporters, Inc, 25 COMMISSIONER AHEARNE: Could I ask a question on

mte 11 24 the discovery process. Down at this end of the table, at 2 least, there are some of these subtle nuances that I'm not 3 very familiar with. Let's consider two organizations that 4 come in to participate in our rulemaking. One is, let's say, 5 an industrial organization, the other a public interest group. 6 If they agree to participate and we have discovery, do I 7 understand correctly that our rules then allow u~ -- give us 8 some legal framework to enforce the right of one of those to 9 extract from the other documents, written material, et cetera, 10 in their files? 11 MR. OSTRACH: If we impose the Part 2 discovery 12 rules, yes, sir. 13 MR. BICKWIT: Which are not imposed automatically. 14 They apply only to adjudications. 15 COMMISSIONER AHEARNE: And the link ends up going 16 back to the Atomic Energy Act, .,some specific provision that 17 gives us that authority? 18 MR. BICKWIT: Subpoena power. 19 MR. OSTRACH: Right .. At least in my opinion, for 20 what it's worth, I believe that traditional discovery rules 21 simply are appropriate in rulemakings. In rulemakings the 22 Commission is supposed to accumulate a record and make its 2? decisioribased on that. In adjudications, the situation 24 normally is that parties present views and the Commission Ace-Federal Reporters, Inc. 25 approves one or thE:! other party's set of views.* So the

mte 12 25 party should hold himself up to be viewed by the other parties. 2 In this case, participants just bring whatever trinkets they 3 wish to, and it's from those the Commission is supposed to e-2 4 make its decision. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

                      -23 24 Ace-Federal Reporters, Inc.

25

361 03 0 I 26

 -MM       2 COMMISSIONER BRADrORD:         Of course, whether the trinket is brass or gold may require it be tested.

3 MR. OSTRACH: One further point the NRC staff 4 under any - even apart from a Commission audit --- well, the

> Cammi ss ion and the st a ff together al ways have this authority

           ~  to issue suopoenas, and if. a party*makes a compelling case that it needs information, as I said, there is no quastion 8  that the information can be gotten.              That is b~cause of the 9  Commission's power to achieve it to satisfy its own needs.

10 **coMMISSION_ER GI.LINSKY: It wasnJt entirely clear 11 from the paper what role you envision for the NRC staff. 12 MR. OSTRACH: No, sir. 13 MR

• 8 IC KW I T : That" s t he n e x t i t-9 m*

 -        14 15 16
                         . MR. OSTRACH:       That is the next i tern there.

role we see .for the staff is the role of an informed participant but not the lead participant. The

                                                                         ~aste disposal 17  is -- we believe that we have the concurrence of NMSS in 18  this. Staff might wish tp speak for themselves.

19 Waste disposal is not a subject over which staff 20 has a preeminent lead role in dealing with the techology and 21 advancing the subject. And, therefore, we don,.t believe 22 that the staff should be required to go .first and present a 23 case that everyone else attacks. We believe to the extent 24 that anyone plays a lead role in the Commission's waste 2:S confidence finding, we think it,.s more appropriate it be DOE

367 03 02

 .MM           2*

and USGS and that. staff play a role as an* informed participant like other informed participatns.* 3 CO"M'MFSSTCJN'ER *GILTNSKY: I gue'Ss I want to put it a 4 little bit differently, although we come out in the same

.) Place.* *I wonder, whether NMSS ought to have to take a 6 position at this point I COMMISSIONER AHEARNE: *Are.you saying, Vic, you 8 believe they should, or are you questioning whether they 9 ought to?

10 COMMISS !ONER GIL INS KY': QuestLoning whether they 11 _ought to. What is* involved here really ultimately is 12 whether the Commission feels sufficiently secure about waste 13 disposal t~~t it is prepared to go forward with reactor

 -           14
         .. -) :5 16 licensing,.which is not a respon-sibility of NMSS-'.
                              .COMMISSIONER KENNEDY:         It is a reponsibility of NMSS, though, is it not, to reach some judgment*as to the I'    waste question itself?

18 COMMISSIONER GILI.NSKY: - Certainly they are going 19 to have to reach a judgment on a license appiication that is 20 presented to them~ But d6 they need to have a view of, you 21 might say, the .grander questions at this point? 22 COMMISSIONER AHEARNE: Perhaps you might ask 23 Bill" s opinion.

           . 24                COMMISSIONER KENNEDY:         Let me say,  I think I see 25    the difference you are drawing.           I think it is n6t

361 03 03 28

 .MM       2.

appropriate to take a position as to the grander issue, that is Whether reactor licensing ought to go forward in the 3 circumstances. 4 It seems to me, however, equally true, they are 5 both in a position to -- and it seems to me obligated to 6 give the Commission their best judgment based upon the facts I and understanding of the situation as they know it. And a it's that that I would expect they woulj be doing. They

            ~  would not be recommending to me whether my decision ought to 10    be to go ahead with reactor licensing.           That's a different 11    question.

12 COMMISSIONER GILINSKY: 0'.<ay. That was the 13 difference I was trying to develop. 14 COMMISSIONER KENNEDY: Is that it? I :5 Co MM I SS I ONER GI LINS KY: Ye s

• l:S COMMISSIONER KENNEDY: Do you agree again with the I i second -

18 COMMISSIONER GILINSKY: I certainly would like to 19 hear their views on where we stand on waste disposal. 20 Perhaps Bill could sit at the table with all of us *- I 21 meant later, but go ahead. 22 (Laughter.) 23 COMMISSIONER AHEARNE: Let him address the 24 procedural question as opposed to the substantive one. 2j COMMISSIONER KENNEDY: Unless he's prepared to

'36 7 03 04 29

• MM take the rest of the morning, give us a simple solution
• 2 MR. DIRCKSz The whole thing right now- I think 3 I followed the general train - (inaudible) -- cer:taihly what we 4 t1ant ourselves to come out with whatever technology is -- if 1

            ~ you have been tracking where we are going on the general 6 statement of policy we are proposing to use in the formation of this rule, we envision quite a long trek before we come 8 up with any judgments as to where ~JE is going, and that y takes us through a series of steps.      We wouldn't want to JO prejudge whether or not DOE can get to the final end or not 11 until we see much more data coming in and mu ch more l2 activity.   -- (Inaudible.)

13 We can give you a pre tty good summary of where we 14 think the path should take us, the various steps we think 15 we would have to travel before we would make a licensing 16 decision on the repositori, and we can lay that out. I7 COMMISSIONER AHEARNE: I think that*'s the 18 appropriate action for NMSS. I more view them as a 19 responsible staff section to say, "Here is what would be 20 required in order to have a licensable facility, a 21 licednsable tec.hnology.-'1 I don't believe it is their 22 position to say, 11 And we are confident that someone can get 23 there. u 24 COMMISSIONER GILINSKY: Let*'s see. Have you 2j exhausted yourself, or are we still --

367 03 05 30

 .MM          of the staff.

MR. OSTRACH: I"ve exhausted myself and the role 3 COMMISS.IONER GILINSKY: I wanted to give Guy an 4 opportunity to present his comments when you finish9d.

J MR

• B I CK iH T : 0 n th i s q u e s t ion , I a m not c l e a r on 6 whe{"e the sense is. Is it the sense of the Commission that -- it" s clear that the sense of the Commission is that 8 the staff should not come in and say, "He*.,re su.fficiently

          )    confident that we recommend that the Commission should go 10    ahead with reactor licensing.           11 II                 But is it the position of the Commission that the 12    staff should not 13                 COMMISSIONER KENNEDY:            Wait.       If that happe-ned to 14    be the view of the staff, and I"m not suggesting that it is 15    or should be, but you are certainly not-suggesting that if 15    it happened to be their view, they shoul dn" t put i*t forward, 1i    are you?

18 MR. BICIGI/IT: I thought that was the suggestion. 1-J COMMISSIC)NER GILINSKY: iA/hat I was saying is, I 20 d idn-' t want to force them into taking a position. 21 CO MM ISSI ONER KENNEDY z That" s different. I don-' t 22* think they should be forced to take a position, but neither 23 do I believe they should be precluded, that the proceeding 24 - should preclude :them from doing it, if they believe they"re 25 prepared to do so.

'36 7 *03 06 31

  .MM        2 CO MM I SS IONE R AHEARN E:

precluded from it. I think they should be 3 COMMISSIONER KENNEDY: I Can-., t agree to that. 4 COMMISSIONER BRADFORD: I would want to th.ink a

) little bit more about it, but before I endorse Dic1<1s 6 proposition, I guess I would say that if the staff were 7 going to make that link, they ought to involve NRR as well 8 as NMSS in drawing that conclusion~- that if there is goin9 9 to be a spillover into the area of reactor licensing and 10 locations, it ought to be a coordinated staff position and 11 not ~ome simply from the office that doesn't deal with 12 reactors.

13 COMMISSIONER KENNEDY: I al ways speak of the staff 14 as a unity. b COMMISSIONER BRADFORD: None of which is to say 16 they ought to do it, but if it goes i~ that direction, I l ' think it should involve both offices. 18 MR. BICKWIT: I think my question is answered, 19 that the Commission is not together on this issue. 20 (Laughter.) 21 CO MMI SS I ONER KENNEDY: That's perceptive. 22 (Laughter. ) 23 MR. OSTRACH: The only other matter that I do wish 24 to discuss is 25 COMMISSIONER KENNEDY: I-le are finished discussing

361 03 01 32

 .MM      2 that particular part.

of sta-ff. There's another question about role 3 1'/hat assuran*ce do we have that other *t-edera l 4 agencies are going to act as is proposed here? Are they in j fact going to pick up this role and come forward and argue a 6 case? Are we sure of that? Do we have a way of compelling them to do so? 8 COMMISSIONER GILINSKY: ;fall, if they aren-'t, I 9 suppose it would affect our confidence. 10 <Laughter.) 11 COMMISSIONER KENNEDY: I accept that. 12 MR. OSTRACH: As. a practical matter, I can-"t 13 imagine any way we could actually compel! tne other federal

 -       14 15 16 agencies to play an active role in the proceeding.        We can probably obtain documents in their possession, if push came to shove, but in terms of getting their active participation 1/ as experts and taking the lead role, there is certainly no 13 formal legal way that could.be done.

19 COMMISSIONER AHEARNE: I a~ree with Vic. After 20 all the Energy Department has the prime responsibility for 21 the federal government for establishing the program,. and if 22 they would not choos.e to participate, that certainly would 23 be a very strong argument in favor of concluding one doesn~t 24 have sufficient confidence. 2j MR. OSTRACH: Yes, sir.

7 367 03 08 33

   .MM      2 COMMISSIONER KENNEDY:      There are circumstances in which they might feel it inappropriate to d6 so wholly aside 3     from the technical questions.       For example, if the President 4     has not acted yet on the I RG Report, given any sign as to
            ~     what he believes as to its conclusions, and that is          I 6     read in the papers, and that's all I know -        not an unlikely situation.

8 Then one asks, what would the Energy Department 9 feel free to do? I don't know the answer to that, but I can 10 see a circumstance in which they mi9ht say, "We think it 11 inappropriate to sit here and try to argue a case when we 12

• don't even know whether the case already put for ward is 13
• considered acceptable by the Chief Executive Officer." And 14 . that's the reason for my question.

15 And then, I guess, I would not necessarily agree

16. that that represents a cause for assuming that we should I, take that as an evidence that there is no basis for 18 confidence. It"s an evidence that there is an inherent 19 difficulty internally in the government in coming to grips 20 with certain kinds of questions.

21 But that's a different problem altogether. 22 COMMI SSIO.i~ER AHEARNE: I accepf it somewhat 23 weakens the confidence, then, that the government could come 24 to grips on the problems and solve them. 2S COMMISSIONER KENNEDY: That may be, but I don't

36 7 03 09 34

  -MM      2 know whether we're here to describe that or discuss it or to reach conclusions as to it.

3 COMMISSIONER AHEARt'-iE: Probably not this morning. 4 COMMISSIONER KENNEDY: Or even at that

           '.) proceeding.   ~ell, anyway that's the reasons for my 6   question.

l M~. BICKWIT: And you accept that it was answered? 8 COMMISSIONER KENNEDY: Yes. 9 MR. OSTRACH: The final point is that there are a 10 considerable number of spent fuel pool expansion proceedings 11 now pending before the Commission. ~e suggest in view of 12 the fact that the DC Circuit did not vacate the proposal for 13 spent fuel pool expansion in Vermont Yankee and Prairie

  -       14 15 16 Island that the Commission permit those proceedings to continue on the basis they are now proceeding, which is they don/t now consider health and safety of radiological impact 1J   from storage after the expiration of the operating license.

18 However, the spent fuel the licenses that are

1) granted as a result of the spent fuel pool expansion be 20 subject to modification based upori whatever conclusions were 21 reached in the Commission's rulemaking.

22 COMMISSIONER BRADFORD: Steve, have we -- could 23 you compare that to what.we did, say, when the appeal was 24 vacated, the S-3 proceeding? Have we ever previously said 25 that an issue that the Commission .itself considered is up

361 03 I 0 35

 * .'vfM      for grabs in the sense of an ongoing rulemaking -- is not 2  litigable in individual proceedings pending that ruling?

3 MR. OSTRACH: Well, sir, the answer depends on 4 exactly how you define what the Commission is saying about

           ~  this issue. Certain~y if we characterize the Commission as 6  still being bound by the denial -- or still accepting to some extent a. denial of the NRDC rulema~ing petition, it 8  would be in a situation somewhat similar to that that you 9  were in while you had the interim S-3 rule that existed 10  while you were updating the S-34 rule in light of the Court 11  of Appeals' Vermont Yankee decision.

12 And at that time you allowed licensing to proceed 13 on the basis of the interim rule, subject to change on the

 -        14 15 16 basis of how the rulemaking finally turned out.

I think the answer to your question of what we suggest here is analogous to what the Commission has done 17 depends on the Commission's.determination of where it is. 18 The DC Circuit did not make a Commission policy that was IJ applied in Prairie Island and Vermont Yankee. If the 20 Cammi ssion wished to vacate the under lying policy, saying 21 the whole question is open, then you would be presented with 22 a difficulty in justifying continuation of licensing on the 23 basis of a vacated policy. 24 COMMISSIONER AHEARr:fE: Steve, could you explain, 2:j if .I now look to the Federal Register notice, page two, the

367 03 I 1 36

 -/AM            top of page two which runs from the bottom of page one, 2    explain really what you have in mind there?             What would end 3    up happening in the relationship of that S-3?
           ..:j.            MR. OSTRACH:        Our understanding is that that is
            ~    ess~ntially a situation similar to that that would have 6    existed if the NRDC peti.tion of denial had ceen an affirmative act of rulemaking.

8 COMMISSIONER AHEARNE: Does this essentially say y that if we make the finding, then the rule will essentially 10 remove from G.onsJ.s::lerq:t:ion *c:iny aspect of some of the parts of 11 the :3-3 table? 12 MR. OSTRACH: It was not intended to do that, 13 sir.* The intent was only that parties could not litigate

 -        14 15 16 the issue of an environmental or radiological impacts of spent fuel remaining on site after the expiration of the license, because the Commission would have determined that I'     the spent fuel was not going to remain on site.

18 COMMISSIONER AHEARNE: But it's solely during the lY period of time it's on site? 20 MR. OSTRACH: Yes, sir. That is the only issue 21 that we intend to take out. 22 COMMISSIONER AHEARNE: I see. I read it, whatever 23 happens after there's a spent fuel remaining on the site, 24 and any remaining environmental implications of that, that 25 was my reading.

367 03 12 37

 -MM      2   that -
                             . MR. OSTRACH:          No, sir.      The intent only was 3                     CO'MMISSIONER AHEARNE:            During its time on site.

4 MR. OSTRACH: Yes. Since it ,....,oulJn*-'t be on site,

          '.) there is no need to consider what happens to .it if it had 6   remained on site.

11 l COMMISSIONER KENNEDY: Does safely disposed of 8 off s ite 11 , the language at the very nottom of page one mean 9 disposed of or could it mean *11 temporarily stored 11 off site? 10 For e.xample, the AFR question? 11 MR. BICKWIT: It means the combination * .It could 12 me an II s a f e l y s tore d II u n t i 1 a s a f e me ans o f d i s p*o s a l i s 13 found. 14 MR. OSTRACH: One point that I didn't meantion in 15 discussing the body of the paper was *the economic issue*. We 16 suggest the Commission address -- take care of the economic 1' cost issue in this rulemaking proceeding in the same way 18 they did in the S-3, which is -- an issue will be the ISi economic impracticaDility of any suggested scenario. 20 For a scenario to be considered available, it must 21 be shown not to be economically impractical. But the 22 Commission would not d~lve into the actual dollar cost of 23 the scenario of whether it's a good buy -- the same approac~ 24 the Commission took in the S-3 rulemaking for the waste 25 facility .there.

367 03 13 38 I .MM COMMISSIONER AHEARNE: You would retain the 2 threshold concept, though? 3 MR. OSTRACH: Yes. 4

J 6

I 8 10 11 12 13 14 15 16 I7 18 19 20 21 22 23 24 2.:S

39 CR 7367 -MELTZER t-4 rote 1 COMMISSIONER GILINSKY: Does that pretty well take 2 care of-OGC's pres~ntation? 3 MR. OSTRACH: Yes, sir. 4 COMMISSIONER GILINSKY: Would you like to add 5 something to that? 6 MR. CUNNINGHAM: Not a great deal. As you know, 7 it's a joint paper. ELD subscribes to the presentation of 8 the Office of General Counsel this morning. 9 I think I would like to, however, just add emphasis 10 to two points made by Steve. One is on the matter of discovery. 11 I would strongly endorse the notion that limited adjudicatory 12 discovery should not be part of this rulemaking for-, I think, 13 three reasons: 14 The first: I don't think that that type of discovery 15 is necessarily useful in a rulemaking. It certainly is not as 16 well adapted as it is to the testing of positions which is 17 common*to adjudication. 18 Secondly, I think it is bound to add substantial 19 time, if unlimited discovery is permitted, to the ultimate 20 determination of the proceeding. 21 And thirdly, I think it may have an impact on the 22 willingness of certainly groups with limited resources to participate, if they know they're going to be subject to 23 24 discovery which could be burdensome. Ace-Federal Reporters, Inc. 25 COMMISSIONER BRADFORD: You're not disputing the

40 mte 2

• 3 2

proposition that we can find that out? MR. CUNNINGHAM: I'm not at all. As S;teve emphasized, the Commission has.a variety of tools by which it can get the 4 information it feels is needed. 5 COMMISSIONER BRADFORD: No, I'm sorry. We think we 6 can find out whether parties will be deterred from participatin 7 simply by asking them to comment on that at the beginning. 8 MR. CUNNINGHAM: No, I don't agree with that. I'm 9* just offering my -prediction on *:what the answer will be. 10 MR. BICKWIT: Are you suggesting that there be ll comment on the general standards for discovery at the beginning 12 of this proceeding? Is that your suggestion? 13 COMMISSIONER BRADFORD: My initial thought really 14 was in response to Steve's point that parties would actually 15 be deterred from participating, would be that we can make the 16 availability of discovery, I guess including the standard 17 we could request parties to comment on that in their initial 18 submission. 19 MR. BICKWIT: There would be no problem with that if 20 you had this judicial officer, presiding officer. He could 21 certify that question up to the Commission. 22 COMMISSIONER BRADFORD: I must say I would be very 23 int_erested in knowing what percentage of the parties would 24 actually say that they would withdraw if discovery were Ace-Federal Reporters, Inc. 25 allowed.

41 mte 3 COMMISSIONER AHEARNE: Can you make any kind of 2 just a rough estimate of -- you mentioned that it would extend 3 the time, make it longer. Do you have a rough feeling on -- 4 either Steve or you? 5 MR. BICh~JIT: In the TMI-1 proceeding, we calculated 6 60 days for discovery. That's using our rules under Subpart (B). 7 MR. OSTRACH: I believe it would probably take more 8 time in a rulemaking like this. You've got more expertise, 9 -Guy, than I, but my impression is *past Commission rulemakings, iO discovery problems have delayed matters. Considerable time 11 has been spent while the parties have done nothing but engage 12 in discovery, document exchange and document production, to 13 the preclusion of efforts directed specifically in preparing 14 their statements .

                    . 15 MR.* CUNNINGHAM:  I gather the sentiment here, if 16   there was to be discovery, it would be only-after statements 17   of position. Discovery would go toward the bases of those 18   positions. If that assumption is correct, then you can perhaps 19
                           -minimize the time for discovery.

20 The danger always is that if you allow discovery, 21 you then get into arguments about the scope of discovery. 22 And while I wasn't focused on the earlier discussion, I 23 detected an underlying assumption that we were talking about 24 discovery of documents that existed, what did you rely upon. Ace-Federal Reporters, Inc. 25 But if .we talk about other types of discovery, such as

42 rote 4

• 2 3

interrogatories, requiring the framing of answers, then you do run a severe risk, I think, of argument about what's a proper question. And it could drag on. 4 CO.lYlMISSIONER AHEARNE: That particular aspect, 5 though, that would go beyond what would be available -- 6 MR. CUNNINGHAM: That's right. Under FOIA, you are 7 only going to get what exists. You can't require the generatio 8 of documents or answers. 9

• COMMTSSTONER
• GTLTNSKY:
• Do you
• see any difficulty in 10 Mr. Bradford's proposal to 11 MR. CUNNINGHAM: Ask fur comment?

12 COMMISSIONER GILINSKY: -- ask:forcornment at the 13 outset on proposed discovery procedures and asking for what 14 impact that might have on participation of potential partici-15 pants? 16 MR. CUNNINGHAM: I see no difficulty with it. I 17 would just suggest, if it's done, it ought to go in the very 18 first notice. 19 COMMISSIONER AHEARNE: Now, see that thought -- at 20 least I thought you said that you did see a difficulty. 21 MR. BICKWIT: I think Steve was responding to a 22 different question on the issue. I don't see any difficulty. 23 COMMISSIONER AHEARNE: The point was that if you're 24 not -- if you do not open the issue of discovery during that Ace-Federal Reporters, Inc. 25 initial period of time, that you will then find that people

43 mte 5

 -                      2 3

might not be focusing upon the preparation of their statements. MR. BICKWIT: But all we would be asking for comment on would be those procedural benefits of going forward with a 4 discovery process. We wouldn't be asking *for comments on 5 particular discovery requests. 6 COMMISSIONER AHEARNE: I understand that. But I 7 thought his point then -- maybe I just misunderstood it. I 8 thought his point was that if you go out with two things, one 9 the notice of this proceeding, and.second, .a notice of comment 10 o~ the procedural question of discovery, that you then put 11 people in the position, if they*~e going to rely on the second 12 let's say they're going to rely on a positive yes answer, that 13 on the first.* they don't devote that length of time they would 14 have otherwise devoted to the. preparation of their statement, 15 because they're waiting for the discovery to occur. 16 COMMISSIONER KENNEDY: That's what I thought. 17 MR. OSTRACH! That's what I said, Commissioner. I 18 believe there might be some risk. I don't know how serious 19 a risk it would be. 20 (At 10:33 a.m., Commissioner Bradford left the room.) 21 COMMISSIONER KENNEDY: It seems to me logical to 22 assume that if the choice is between no discovery and some

                     ,.23  discovery, whatever its character may be, the individual is 24   going to wait a bit before l:e initiates preparation of a Ace-Federal Reporters, Inc.

25 statement to find out which cour.se that's going to be, because

                                                                                            ,44 l    he may, -if it's going to.be some discovery, want to wait until 2     he sees what he gets.

3 .MR. BICKWIT: He.isn't preparing a statement in the 4 first instance.

                       ,5               COMMISSIONER KENNEDY:   But *he's going to*start 6    thinking in those terms, hopefully.

7 MR. BICKWIT: 'That's true. 8 COMMISSIONER KENNEDY: If you ever plan to get the 9 proceeding finished.

• 10 MR. OSTRACH: As proposed, at least.it's-our office's 11 opinion that we have allowed enough room for discovery in those 12 cases where a real need for it is shown. We think we have, on 13 the other hind, imposed barriers for parties.using discov~ry, 14 participants using discovery simply because.it's there. Maybe 15 we will find some fishing expedition type discovery. *By 16 *requiring a showing of compelling we would-expect that a 17
• skilled and experienced presiding officer would b~ able to 18 give the Commission very *pointed recommendations on what 19 process of discovery he. recei~es.

20 I don't think it is likely. that you** would miss 21 anything that would be of importance. 22 COMMISSIONER KENNEDY: I noted on page 11 that. you 23-: , suggest that we should not determine initially the precise 24, procedures for the hearing until we have received written Ace-Federal Reporters, Inc. 25 -statements to determine what procedures. are best adapted to

45 rote 7 resolving the issues. And I wondered how much time you 2 visualize that might take. 3 MR. OSTRACH: Developing the procedures of the 4 hearing, sir? 5 COMMISSIONER KENNEDY: Yes. 6 MR. OSTRACH: Not an extensive amount of time at all. 7 Assuming that the Commission -- the choices before the 8 Commission would be three, primarily: either go with a legis-9 lative hearing of *the,-*type we ,described here, go with an iO adjudicatory hearing, or do without a hearing entirely. Or 11 perhaps there might be a fourth, which would be to ask -- as 12 Commissioner Gilinsky suggested, in a sense remand for special-13 ized hearings on certain issues before the presiding officer. 14 The choice having been made amongst those leading 15 contenders, I see no reason why it would be a difficult task 16 to come up with an acceptable source of procedure. One gets 17 the parties or the participants on the telephone: We think 18 A and B should work together. How about a half an hour? How 19 much time do you need? Well, you know, your witness* has 20 vacation plans. 21 Those are minor details I don't.see requiring signi-22 ficant Commis.sion time or very much i.n the total sense of the

23. presiding officer's time.

24 COMMISSIONER.1 .1AHEABNE: Is the reason you have not

• Ace;Federal Reporters, Inc.

25 you are not trying to get us too specifically now, because

46 mte 8 there are pros and cons* that will be clarified by the submis-2 sions, or because you doubt that we can reach a decision? 3 COMMISSIONER GILINSKY: Don't make him answer that. 4 . MR. OSTRACH: I think I would have to answer the 5 former, sir. The question of whether or not you believe*there 6 is a need -- the real choice, I believe, is between a legisla-7 tive hearing and an adjudicatory hearing. I believe the 8 Commission has shown great interest in having a hearing. The 9 choice between those th~ngs, I think, depends upon the 10 Commission's perception of what the nature of the issues are. l1 Are they the sort of.issues that the Commission really will 12 feel the need for cross-examination on. And I don't think 13 that that's a decision that could profitably be put to the 14 Commission now, because you haven't got the issues presented. 15 You will only have them after you've seen the statements. 16 COMMISSIONER AHEARNE: But I thought that that 17 decision you were speaking about would be the one that would 18 decide between a legislative hearing period and a legislative 19 hearing followed by a selected set of focused issues under 20 cross-examination. 21 COMMISSIONER *KENNEDY: That's one option. Another 22 option is for an adju~icatory hearing. 23 MR. BICKWIT: Or no hearing. 24 COMMISSIONER AHEARNE: And you believe there is Ace-Federal Reporters, Inc. 25 sufficient doubt as to what the issues are at the present

47 mte 9 time that it would be unwise to choose now the form of that 2 hearing? 3 MR. OSTRACH: I don't believe there would be anything 4 significantly gained. The main reason we try and specify 5 procedures as far in advance as possible is to guide the 6 parties' conduct. I don't think the parties need to know now, 7 it does them any good, to know what the Commission's thinking 8 is. I believe it helps the Commission by retaining flexibility. 9 MR. *BICKWIT: In the notice, we do set out the 10 tentative conclusion and say: Unless different procedures ll are arrived at, here's where we're going. 12 COMMISSIONER AHEARNE: I know. 13 CO~ISSIONER GILINSKY: I wonder, Lee, whether. you 14 have anything to add on the question of staff participation 15 and the role of the various offices in such a proceeding? 16 MR. GOSSICK: No. Of course, in Mr. Kennedy's view, 17 certainly NMSS and NRR and possibly even others can be

• 18 involved. But I guess I come back to the point that 19 Commissioner Ahearne made: If they are not asked to take a 20 position with regard to their view as to, you know, the 21 availability of the technology to be able to handle the waste 22 matter, clearly i t seems to me that it is up to. DOE or whoever 23 else, wha tev.er *.body, to present that convincingly to the 24 Commission, so that you can make a decision on it .

. Ace-Federal Reporters, Inc. 25 But I can think only -- it's up to the staff

48 mte 10

• 2 3

l primarily, under those conditions, to present to you their assurance as to the degree that you can see that we would be in a position to license such a facility whene~er the applica-4 tion and facts are presented to the staff or licensee. 5 I don't think I have anything else to add. 6 COMMISSIONER AHEARNE: I would think if we restrict 7 NMSS to the role I described, which I think is their appropriat 8 one, saying here is what we believe to be necessary, that that 9 would <Reutra.lize them .to .the extent of addressing the substan-10 tive question that the hearing would be involved in, and 11 therefore would have a greater chance of* us being able to also 12 use their technical expert knowledge in assisting us. 13 COMMISSIONER GILINSKY: I must say that I am inclined 14 to feel that if the staff has a strong view one way or the 15 other, based on their technical judgment, I wouldn't keep them 16 from expressing it. 17

• COMMISSIONER KENNEDY: I would hope not.

18 COMMISSIONER GILINSKY: It seems to me the concern 19 was more that they would be pressed to take a view when they

20. were not prepared in fact to take one.

21 COMMISSIONER KENNEDY: As a practical matter, if they 22 were asked a question, I suppose the issue would come down to: 23 *Are -we*saying that they .s.hould decline to answer? If they were 24 asked a question and had an answer which they believe to be Ace-Federal Reporters, Inc. 25 correct from their own perception, i t seems to me they ought

49 mte 11 to answer it. 2 But I agree with you, they should not be driven to 3 that. If the answer to the question is we don't know or we 4 are not prepared to make that judgment, that's the answer to 5 the question. 6 MR. GOSSICK: I think one should also point out that 7 you may not find a monolithic kind of position here. There a .may be a divergence of views that you have to contend with. 9 COMi."!ISSIONER KENNEDY: That's what the hearing is iO about. 11 MR. GOSSICK: Right. 12 COMMISSIONER GILINSKY: Are there any other views 13 on this proposed statement? Do you feel that you are ready to 14 go forward with it? 15 COMMISSIONER AHEARNE: I think I am. 16 COMMISSIONER KENNEDY: I am, with*the understanding 17 that I mentioned earlier, that we are not ignoring by the word 18 "disposed" at the bottom of the page 1 -- 19 COMMISSIONER AHEARNE: It could probably easily be 20 revised to say "restored." 21 COMMISSIONER KENNEDY: Or "disposed." 22 MR. BICKWIT*: "Restored or disposed." COMMISSIONER KENNEDY: That would take care of my 24

• problem.

Ace-Federal Reporters, Inc. 25 COMMISSIONER GILINSKY: And how about including a

so mte 12

 -                      2 3

question at this point of possible participants, *on the way discovery would be handled and what impact that might have on their partic~pation? 4 COMMISSIONER KENNEDY: Well, I personally would 5 accept the staff .view here. I agree with it that discovery 6 is not needed, and indeed probably not meritedJ and that it 7 might cause -- I think it would have -- it's likely to cause 8 some further delay. 9 **However, as a *genera,l propos-i tion, if we want to ask 10 parties what they think of it, I am always for that. So I have ll no objection to it. 12 COMMISSIONER AHEARNE: If you come up with some kind 13 of a sentence or paragraph to_ put tha*t idea in, I wouldn't 14 object. 15 MR. BICKWIT: With the idea that the decisions would 16 be certified up to you ori that. 0 17 COMMISSIONER AHEARNE: I would appreciate seeing 18 the paragraph before it gets out. 19 MR. BICKWIT: We assumed you would appreciate it. 20 We assumed you would see it. 21 COMMISSIONER GILINSKY: Could we, then, agree on this 22 proposed notice, subject to seeing the specific changes?

 -                    23 24 Ace-Federal Reporters, Inc.

25 COMMISSIONER KENNEDY: COMMISSIONER GILINSKY: COMMISSIONER AHEARNE: The two modifications? Yes. Yes.

51 - rote 13 l

• COM!-1ISSIONER KENNEDY: Yes.

2 -COMMISSIONER-GILINSKY: And approving those. 3 John? 4 COMMJ;SSIONER KENNEDY: I do. 5 COMMISSIONER AHEARNE:. I do. 6 COMMISSIONER GILINSKY: . Thank you. . I think we have 7 taken care of Mr. Bradford 1 s concerns. 8 COMMISSIONER AHEARNE: I'm sorry. Could.I ask one 10 * - Could you put in .a clarifying something to make i t clear that 11 what you are addressing here ,is that it's remaining on-site 12 during the time it's ori site. 13 MR. -OSTRACH: If it I s all right with the other 14 Commissioners, I think that the point was clear _and we will 15 work with Commissioner Ahearne' s office to. get language thar s 16 . satisfactory. 17 COMMISSIONER GrLINSKY: The proposed change sounded 18 satisfactory to me. 19 COMMISSIONER 'KENNEDY: Batch it all together and send 20 it all out

• 21 .
• COMMISSIONER GILINSKY: Anyone else who has anything

22. else. to add. on this questio.n?

                                       .* (No response . )

24 COMMISSIONER GILINSKY:

• See if you can get Ace-Federal Repo"ers, Inc.

25 *Mr. Bradford, just to*make absolutely sure that we have in

52 mte 14 fact taken care of his concerns. 2 MR. OSTRACH: My understanding, if we have a moment, 3 is that the p~ragraph you are speaking about would be a para-4 graph just after the questions of discovery, that we say: "The 5 Commission, however, is considering whether to also have 6 adjudicatory discovery procedures. We wish the parties to 7 comment on this, and in particularly, whether, if*such 8 procedures were added, they would affect or deter them from 9 participation. They should file their comments in the 30-day 10 period, the very first round of comments or statements of 11 intent to participate." 12 And I suppose we would also say the presiding officer 13 is directed-to refer to the Commission immediately his 14 recommended 15 COMMISSIONER AHEARNE: Right, whatever that was. 16 COMMISSIONER KENNEDY: With a summary. 17 MR. OSTRACH: With a summary of positions and 18 recommendations. 19 (At 10:45-p.m. Commissioner Bradford entered the room.) 20 MR. OSTRACH: This is in addition to the notice on 21 page 29 of the draft notice. Add a new paragraph saying: 22 "However, the Commission is also considering whether 23 toBlso provide-adjudicatory discovery procedures. The 24 *Commission wishes participants to discuss this and-say whether Ace-Federal Reporters, Inc. 25 it would affect or deter their participation. They should file

53 rote 15.

• 1*

2 3 their comments on this 30 days after the notice of hearing . The presiding officer will summarize their comments .and send a recommendation to. the Commission for prompt resolution. 11 4 _COMMISSIONER BRADFORD: That. seems fine. 5 'MR. OSTRACH: There is one remaining question that

6. I think the Commission will have to deal with.separately.

7 COMMISSIONER BRADFORD:. *Let's see. Steve,

• I take.it 8 that also means for the moment you would scrub the part that 9 states. the,1.,st'andarcl j:n,.,t'.er.ms **p:f '\extrao.rdir1.9-+Y circumstances 11 ?

10 COMMISSIONER AHEARNE: No, I think that would stay in. 11 *coMMISS IONER GI LINSKY: Wait a minute. 12 COMMISSIONER BRADFORD: I would not do .that. 13 COMMISSIONER AHEARNE: I would. 14 'COMMISSIONER KENNEDY:. I .would .

                  .* 15 COMMISSIONER GILINSKY:               Can we just go back to that 16    point?    Where is-that?

17 MR. OSTRACH: Top of page 9 of your notice. 18 MR. CUNNINGHAM: .. May I suggest., - mat you might want 19

• to say:* "It's the Commission's present intention that requests
• 20 for interrogatories, depositions and other forms of discovery 21
• will rio't be entertained," et cetera, . and then the other para-22 .grap h .

23_ ._COMMISSIONER ,KENNEDY: That I s all right. 24

• COMMISSIONER AHEARNE: That's a*11 right.

Ace-Federal Aepo"ers, Inc. 25 .COMMISSIONER BRADFORD: No, I don't think so. It

54 rote 16 would suffice if we. took out the words . 11 in exceptional 2 circumstances. 11 3 COMMISSIONER GILINSKY: I was just going to propose 4 :that. It seemed to me that tilted too far in one direction 5 and really raises a question of -- 6 COMMISSIONER BRADFORD: I would also change the 7 negative to positive, 11 will be entertained upon a showing of 8 compelling justification," et cetera. 9 COMMTSSIONER GILINSKY: That*seems a reasonable 10 change to me. 11 COMMISSIONER AHEARNE: No. 12 COMMISSIONER GILINSKY: What is the exceptional 13 circumstances? 14 COMMISSIONER AHEARNE: I guess I tend to lean against 15 the use of disco~ery. Changing it to the positive would be a 16 leaning forward, and I couldn't go along with it. 17 COMMISSIONER GILINSKY: I must say, in acting on the 18 matter, I had assumed that we had left .:i,.t open, in fact asking 19 for comment on it, and did not realize that these words were 20 staying in. 21 Now, let's see. You think "exceptional circumstances 11 ? 22 COMMISSIONER AHEARNE: "Exceptional circumstances. 11

-                    .23 24 Ace-Federal Reporters, Inc.

25 I wou*ld ha,v,,e *to go back and try to check some legal termino-logy. art. I'm afraid now we may be playing around with words of

55 rote* 17 I

                      , l COMMISSIONER BRADFORD:

• This is my revenge for 2 Three Mile Island, this discussion.
• e-4 3 (Laughter.)

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 24 Ace-Federal Reporters, Inc. 25

7367 05 01 56

• MM COMMISSIONER AHEARNE: Could you clarify that?

2 COM,MISS,ION.ER .BRAD.FORD: Just that now it~ s my turn 3 to use terminology. 4 COMM ISS !ONER AHEARNE: I see. 5 So, Len,. what is the significance of *"exceptional 6 circumstances coupled with compelling justification"? 7 MR. BICKWIT: It's what Steve said previously, 8 that the understanding is that this would not be done y often.

• 10 COMMISSIONER AHEARNE:
• But to a layman, either of

            .ll those would suffice

• 12 MR.* BICKWIT: It's possible. The commission is

 -           13 14
            .15 indicating it will not find compelling circumstances often.

If you take J'exceptionaL circumstances*" out, the commission is not inqi cat ing that

• 16 COMMISSIONER AHEARNE: My point is: to a layman, 17 the *11 compelling justification" would mean that there is a 18 rationale why you should do it, and that" s what* 11 compe 11 ing,11

           . 19 is.

20 MR.BICKWIT: Right. 21 COMMISSIONER* GI LINSKY: * *11 Compe 11 ing- 11 is pre tty 22 strong. 23 COMMISSIONER AHEARNE: So, if you add *"exceptional 24 circumstances," you're telling me that overrides 25 *"compe.lling.*". That .would mean in some cases it would be

57 7367 05 02

  *  :l,!M         compelli~g in which you ought to do it but it's not 2     -~~ceptional so yo~ wquldn't do Jt~            And that leads to my 3      confusion.* That's why_ I am asking is there a legal link of 4  * - some kind.

5 MR. BICKWIT: I don't think that's what is 6 intended. It is simply saying, when this language was 7 written, 1 t is the understanding it wi 11 be the unusual case 8 in which compelling circumstances are found, but the 9 compelling circumstances test is the only te~t that's going 10 to be used. 11 - COMMISSIONER KENNEDY:

• Exceptional circumstances, 12 you mean.

  -                               COMM! SS !ONER AHEARNE:       Exceptional c i rcumstan ces-11 11 13 14      doesn/t add anything.

15 COMMISSIONER KENNEDY: To me it was only 16 suggesting. 17 MR. BICKWIT:_ Yes. 18, -* *coMMISSIONER KENNEDY: The compelling 19 just if ica tion is going to arise only in exceptional 20 circumstances. 21 MR. BICKWIT: That's the intention. 22 COMMISSIONER KENNEDY: . That's what it_ says to me, 23 and that's what I assumed it meant, and that's exactly the 24 way I think it ought to be, as I indicated earlier *. I have 25 no objection whatever to inquiring of the p_arties'* views on

58 7367 05 03

• MM this, and an option which is td provi 2 broader 3 MR. BICKWIT: I that makes any difference, we can 4 revise the sentence to say "unless there is compelling 5 justification, therefore," and then add another sentence 6 saying -"the commission would not expect this to happen 7 except in exceptional circumstances."

8 COMMISSIONER AHEARNE:

• Fine.

9 COMMISSIONER KENNEDY: Iha t' s what it says now, as 10 far as I am concerned. That's okay with me. 11 COMMISSIONER BRADFORD: It seems strange to me 12 that we are now being lDoked at ourselves by at least thre~ 13 different groups: the Kemany Commission, the Ragoven 14 investigation, the Hart committee - all of which intend to 15 draw a combination of specific and general conclusions about 16 nuclear regulation and the way it perceives it. 17 None of them are talking about -- other parties 18 come to us with trinkets, upon which they will then base 19 some pretty sweeping conclusions about their degree of 20 confidence in the future of nuclear regulation. They are 21 sending their counsel out to do very close to the equivalent 22 of some aspects of discovery; in fact, taking depositions 23 and really probing the structure. That seems to me -- or at 24 least that potential method of inquiry -- seems to me more 25 consistent with the behavior of a group that really wants to

59 J367 05 04

• Mi\i be in a position to test all of the assumptions, all of the 2 facts, all of the positions being alleged before it. And J all three of those groups are proceeding in that way.

4 Now, there are differences, of course, in the 5 structure of their inquiries, and the structure of this 6 of what we/re talking about doing here. But it is 7 interesting that not one of those groups chose as a method 8 of conducting their inquiry a process in any way analogous 9 to what we/re talking about here. 10 COMMISSIONER AHEARNE: But, Peter, I haven 1 t 11 assigned either of those groups that you have referenced 12 having cross-examination of the parties in front of them. 13 It appeared to me they are doing exactly what we are trying 14 to do. I don/t read this discovery a restriction .on us 15 finding out information. If it is, then please explain that 16 to me. 17 I thought the discovery provision we are debating 18 is the parties in front of us in what they can discover with 19 each other. I haven/t seen any indication on either of the 20 organizations you mentioned to try to give us the authority 21 to dig into other aspects of it. Your analogy -- 22 COMMISSIONER BRADFORD: In fact, we have that 23 .authority. But there is a limit to how far the analogy can 24 be taken. But it does seem to me that discovery-type 25 proceedings commend themselves even to groups that are

60 /Jo 7 0:, 05

• MM I trying to draw general conclusJons about a pretty broad 2 subject.

3 Now, what we are talking about, cross-examination, 4 let me say.I would feel less strongly - I think the 5 possibility of cross-examination should be held open here 6 also, but I think if I wer& compelled to choose, I would 7 prefer to have discovery. 8 COMMISSIONER AHEARNE: If you see this as limiting 9 us, our presi~ing officer, in his or our ability 10 COMMISSIONER BRADFORD: *No, I don't. l I COMMISSIONER AHEARNE: But that's the analogy, I 12 think, to the groups you're talking about.

  -           13 14 15 COMMISSIONER BRADFORD:    No, I am simply talking about the ways in which those groups _are going about drawing information to themselves. Obviously, they don't have 16  exactly the same type of proceeding. They donJt have a 17  rul~making with many participants in it, but I don't think 18  that's to say for a minute that if they did they would not
            . 19  be engaging in a process of discovery themselves.

20 COMM! SS IONER AHEARNE: But I think in both of 21 those cases they are expressing a confidence in themselves 22 and their ability to carry out and find out the information, 23 and I would similarly hope that we would have that same kind 24 of confidence in our ability to find out the information. 25 COMMISSIONER BRADFORD: What they are saying is,

61 736~5 06

  , MM      in dealing with .parties whose views they may have some 2 .reason not to accept without ~ome reservation, they are 3  going well beyond the simple expression of those views and 4  getting their hands on a great number of documents and 5  asking a great many questions.

6

• C0MMISSIDNER.AHEARNE:. Which then the analogy 7 might then be that we ought to try to do that also.

8 C0MlvlI SS !ONER BRADFORD: That would be another way. 9 MR. CUNNINGHAM: I think it is clear the procedure 10 recommended here preserves every tool the commission. has to 11 do whatever probing it feels necessary. The discovery 12 controversy, as you point out, relates to parties vis-a-vis

 -      13 14 15 them s el v e s

• COMMISSIONER BRADFORD:* Or each other.-

MR. CUNNINGHAM: Each other. That's right. 16 COMMISSIONER GI LINSKY: Let me just ask again how 17 you feel about the 11 exceptional circumstances." Do you feel 18 that. needs to stay in there? 19 COMMISSIONER AHEARNE: Well, Len had proposed to 20 put in that second sentence, which I have no problem with. 21 COMMISSIONER GI LINSKY: It still !'eaves. in the 22 *11 exceptional circumstance s.*11 I am just asking whether you 23 feel that that has to be in there. 24 COMMISSIONER AHEARNE: I am sti.ll leaning in that 25 direction, yes.

62 i/367 05 07

• MM COMMISSIONER GILINSKY: It's a question of whether 2 ,w,e ,come to simple agree.ment on this question or not.

3 COMMISSIONER BRADFORD:. Supposing that we write 4 the paragraph that Steve described and then simply state the 5 fact which is that the commission has not yet agreed upon or 6 has not decided the standard. It seems fairly clear that 7 among the four of us we haven't, .and would welcome comment 8 on that subject. 9 COMMISSIONER BRADFORD: Or the alternative 10 stands. You can put forth the alternative stands, put 11 forward this; put forward the standard as I suggested; you 12 might modify it and put forward adjudicatory discovery, ask 13 for comment on them. 14 COMMISSIONER AHEARNE :* Fine~ 15 COMM I SS !ONER GI LINSKY: Is that satisfactory, 16 Mr. Kennedy? 17 ,COMMISSIONER* KENNEDY: Yes. 18 MR. OSTRACH: Pardon me

• Just in terms of format, 19 would that leave in the language that is presently there at 20 the top of page 9?

21 COMMISSIONER KENNEDY: Modified as counsel 22 suggested. 23 MR. OSTRACH: Modified into two sentences -- 24 (Simultaneous discussion.) 25 COMMISSIONER GI LINSKY: Wait.

• I thought you were

63 ~367 05 08

  'Mi,i      suggesting we leave it open and simply say we have not 2 decided on discovery procedures, and lay out thrse 3 po s s i b i 1 i ti e s

• 4 MR. BICKWIT:* That"s right.

5 COMlvlISSIONER GILINSKY: That"s what I thought. 6 COMMISSIONER KENNEDY: That"s all right. 7 COMMISSIONER AHEARNE: Yes. 8 COMMISSIONER KENNEDY: Recognizing that I have 9 already s~ated my veiw of the matter clearly on the record, 10 I agree to putting it in. Il COMMISSIONER AHEARNE: This would only then be 12 left as one of the alternatives.

  -       l3 14 15 COM:i'AISSIONER GILINSKY:   Right. We will not have decided that question, which we will decide at some point, hopefully, not too far in the distant future.

16 COMMISSIONER AHEARNE: Right. 17 COMMISSIONER GILINSKY.: Can we modify our 18 agreement in that way? lY COMM I SS !ONER KENNEDY: Right. 20 COMMISSIONER GILINSKY: We will still want to see 21 a precise 22 MR. BICKWIT: Do you want to vote, Peter? 23 COMMISSIONER GILINSKY: I was asking Peter whether 24 he agreed. 25 COMMISSIONER BRADFORD: I don"t think I ever quite

64 7367 05 09

• MM got around to voting.

2 COMMISSIONER GILINSKY: JNh.at I thought I got from 3 Peter was the physical equivalent of a mumble. 4 (Laughter.) 5 COMMISSIONER BRADFORD: At least a moral 6 equivalent. 7 COMMISSIONER GILINSKY: And we will still want to 8 see the precise words on that basis -- 9 MR. OSTRACH: Commissioner, one final point I want 10 to mention that need not be addressed today will be the

          -1 I designation of the presiding officer.        That will have to be 12  done separately by the commission.
 -     ~
   *(JJJ 13 14 15 COMMISSIONER GILINSKY:

• COMMISSIONER AHEARNE:

checking will have to b$ done. I understand. As you* pointed out, some 16 COMMISSIONER GILINSKY: Mr. Secretary, you will 17 make those modification? 18 MR. HOYLE: Yes. 19 COMMISSIONER GILINSKY: Thank you very much. 20 (Whereupon, at .11 :oo a.m., the hearing was 21 adjourned.) 22 *

• 23 24 25

   -}}