ML20148M809

Us NRC Briefing Book,Vol 2:Intl Waste Mgt,Nrc/State Relations,Legislative/Congressional Current Issues

ML20148M809
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Issue date:	05/26/1978
From:	NRC OFFICE OF POLICY EVALUATIONS (OPE)
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0FFICE OF POLICY EVALUATION U.S. NUCLEAR REGULATORY COMMISSION l BRIEFING BOOK 9

May 26, 1978 Volume II International

'J waste Management k NRC/ State Relations Legislative / Congressional Current Issues

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] period of time for the permits to be worth the resources that will be f..,.

required to obtain them. At the same time, significant new information ,

can always be raised and reviewed when the permit is referenced b1 a later fii .

construction permit application. [

$M Section 193f. seems to say that the NEPA requirement for a "need" finding E:

(the benefit of the NEPA cost / benefit balance) at the site permit stage is satisfied by a finding that there is a projected general need for additional electric power facilities in the region, with decisions on the type of facility and exact timing of operation lef t until later. I think that this  :

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is all that can reasonably be required at this early stage in the planning C process. I do think that it would be helpful to be a little more precise ...

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in the bill as to what is intended here.

Section 193e. deserves special mention. It would allow limited construction activities to take place on a preapproved site without the need for the full -

limited work authorization or construction permit review process to be f' E

completed.' This seems to be a reasonable approach to removing the construc- ,l tion permit review process from the critical path in light of the fact that f. '

E the site has already been subjected to a complete environmental and safety review (except for a definitive need for power determination). If, despite the earlier reviews, there is some special circumstance that suggests that ]

construction should not begin, then either the Commission or the State l could call a halt under the bill. ,

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2. Standardized Designs E9 Section 194 would authorize the Commission tc approve the preliminary or ,

final designs of thermal neutron power generation facilities or major -

subsystems of these facilities. It could do so by rule or manufacturing F license. Approvals would be good for five years, but renewable for additional three year periods. Mandatory formal hearings would be required and license fees would be waived, i:

The Commission has encouraged the use of standardized designs for some time. Indeed the Commis3 ion's regulations now address approval of designs .

by rule and by manufacturing license, although to date the Commission has issued neither. However, I think that the time has come for some legisla- ,

tive recognition of this important concept. The standardized design concept ylill epcourage early public participation on important design and safety questions, focus the efforts of the NRC and reactor vendor technical staffs on a few designs rather than on many designs, encourage more complete development of the designs early in the design-fabrication-construction sequence, and thereby improve the quality of the plants and help prevent costly construction mistakes.

One matter of some concern to me is section 194e., which seems to say that pending construction permit proceedings could qualify as standardized design approval proceedings. There is some question in my mind whether one can or should do this, in view of the fact that the review may not have been ,

tailored from the outset for a standardized design approval, and the public ,

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• may not have had adequate notice of NRC intentions. I think that the provision needs to be clarified so as to indicate whether-the normal notice and mandatory hearing processes of the bill would apply to these y, designs. I recognize the need for some transition period to deal with the is present roster of standardized designs, but these can be worked into the g

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new system gradually by updating reviews and compliance with the notice and hearing requirements of the bill. In the meantime, staff-level design approvals can continue in effect.

Both'the early site review and the standardized design provisions of the

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bill should enhance the predictability of the licensing process by facilita-ting early and firm decisions that would not be changed absent significant new information. L'nder both sections 193 and 194, the scope of Commission reviews on renewal applications would be limited to significant new informa- '

tion. It would not be enough that some new policy or review approach had j..

p been adopted by the Commission in the meantime. I think this limitation on renewal reviews by the Commission is reasonable, but would suggest that only one renewal for a standardized design be permitted on these terms. 4 Such a change would give an eight-year life to a design, which I regard as ample to justify its preparation and approval. I would also suggest that only one renewal on these terms be permitted for a site permit. This. allows an effective 20-year life for a site permit, barring significant new informa-tion. After that period of time, I would think a fairly complete review should be made on a new application, if the site is to continue to be an approved one.

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3. Combined Construction Permits and Operatino Licenses F<

.I .55 Section 185 would authorize the Commission to issue combined construction  !-?

c permits and opercting licenses for thermal neutron power generation facilit'ies in cases where the initial application contains enough informa-tion. There would be a mandatory formal hearing before such a combined permit and license would be issued, and there would still be a complete  :

review of actual plant construction and opportunity for a hearing on eq significant new information or violations prior to actual plant operation.

This provision compliments the provision in section 194 on standardized designs. It recognizes that some applicants may come forward with final e designs at the construction permit stage. In such cases, the bill would allow the Commission to review and approve the final design, and avoid the need for a complete re-review of the design at the operating license stage. The underlying principle is the same as for standardized designs

and site permits - if adequate information can be provided at an early point in time, then early decisions should also be made. In my view, this provision will be increasingly important in the future, as standard final designs become available.

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4. Hearinos  ! '

Under section 189a. of the bill the present distinction between rulemaking and licensing in the Administrative Procedure Act (APA) is basically b preserved, except that rules approving standardized designs are treated as i

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licensing actions. With that exception, the Commission may issue rules M

after prior public notice and opportunity for written comment, whereas all {n licenses, except export licenses, emil at least the opportunity for a L.

e formal hearing on significant new safety issues. The present mandatory formal hearing (even when no person requests.one) at the construction permit stage would be replaced by mandatory formal hearings for site permits, standardized designs, and combined construction permits and operating licenses. Also there would be substantial advance notice of any major license or standardized design applications. I think that, in general, the approach .

here is a reasonable one. However, several points deserve special mention.  ;

First, the revised section calls for " hybrid" hear.ings on NEPA issues. I .

e think it is a reasonable proposal, and would bring NRC NEPA hearings mpre ,

nearly in line with the hearing format used by other agencies for these L matters. Also, the " hybrid" format allows formal hearing procedures such as cross-examination of sworn witnesses where factual matters are in dispute.

However, I am concerned here not only that NEPA environmental issues and other environmental issues may be difficult to distinguish, but also that '

the type of issues being litigated under NEPA and these other statutes do d not clearly call for different hearing formats. Why should impacts on

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historic sites be addressed in formal hearings but impacts on fish be addressed in " hybrid" hearings? If " hybrid" hearings are to be used for NEPA issues, I think the provision might well be extended to cover these  ;

other environmental-type issues. ,

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Second, there is the provision which restricts relitigation of issues. -

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This concept is not a new one - it is presently applied in a limited way in the Commission's licensing proceedings where the same parties have Ei raised the same ' issues in a prior proceeding, and L: the application of ,

.i rules and manufacturing licenses to individual license applications. Some ag.:.

4 provision restricting relitigation of. issues is essential if the provisions .__7

=;i for standardized designs and early site reviews are to have any meaning. .

It is true that the provision as drafted will operate to prevent some ,

,  ::V parties from raising issues even when they had only a limited prior oppor- ,

tunity to raise them, but this problem is inherent in the whole legislative s

and rulemaking process. Laws enacted by Congress and rules issued by administrative agencies are applied every day to people who were not E;

sufficiently concerned at the time of enactment or issuance to participate in their formulation. What is important is that the process be sensibly I

applied by the Commission - that the process be administered with a sensi-tive regard for new information that may arise. Also, I am concerned about _ "]

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State proceedings limiting the opportunity for hearing in Commission -

.i proceedings - I would drop this particular provision in favor of the ffEPA a

.A delegation provision in section 195. .d 4

y I also favor the interim licensing provisions of sections 189a(3) and 192.

This would be " standby" authority for the Commission to use in special cases. The Commission presently plans its operating license reviews so that they are completed before the plant is ready to go on-line. However, ,

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there has been at least one occasion in the past when a safe and fully completed plant could not begin operation because several issues remained .

to be litigated in the hearings - issues which turned out not to signifi-cantly affect plant design or operation. I favor having this " standby" authority because I believe that when there is an urgent public need or .

emergency the Commission should not be disabled from granting needed -

relief solely because some hearings need to be completed. There is a similar advantage to interim amendments, particularly where some changes need to be made to the operating license technical specifications at refueling time and a hearing is requested which threatens to delay the availability of the plant. I think that this authority would be used sparingly by the Commission, and the bill properly emphasizes the extraordinary nature of the relief by calling for the Commission itself to make the required " urgent public need or emergency" or "public interest" finding.

Finally, I want to take note of a provision that revises slightly the present provisions of the Act dealing with advance notice of certain amendments. The present Act calls for advance notice of issuance of certain construction permit and operating license amendments when a "significant hazards consideration" is involved. This provision has proved extremely difficult to administer, primarily because of its apparent emphasis on the amount of controversy and review effort associated with the amendment, rather than on substantive matters. The bill would revise this provision so as to place the emphasis where it should be - on the

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n amount of additional risk, if any, to public health and safety posed by

~y the proposed amendment. If the proposed amendment does entail a signifi-cant additional risk, then prior public notice and opportunity for hearing should and would be afforded. ,

NEPA Delegation and the Role' of the States .;.., -

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Section 195 of the bill recognizes and enhances the important State role in the need for power and environmental review processes. Some states now have comprehensive facility siting laws and there is an increasing ]

a state and local interest in nuclear plant siting. Subsequent to the s enactment of NEPA, many States have enacted "little NEPA" laws. The \

licensing bill would recognize the predominant role of the State in need ,

for power decisions and provide in section 195 for the conduct o? environ-mental review by States with approved NEPA-type programs. The essential ..f integrity of the NEPA process would be maintained by provisions which.  :

require the States to fully comply with NEPA, have adequate resources to .. -

p, perform the reviews, and consent to Federal judicial review. The availa-bility of technical assistance from the National Laboratories and cash grants should help assure that State NEPA reviews are as competent and $

g thorough as those performed by the Commission. g In my view there is no need for the same environmental acceptability and .

need for power reviews to be performed by both the Federal Govarnment and  :

4 the States. Given the choice of one-or the other, I bow to the request g of the Governors' Conference that the States perform these reviews. Many q

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of these matters a're predominantly of State or local concern, and local

. A citizens can reasonably expect the State to be more sensitive to their F concerns than a Federal agency in Washington, D. C. Besides, the .. $

F0 Commission has already been deprived of the authority. to condition licenses a in one critical environmental impact area - the impacts of the plant ,q

. . .e EPA ani the States now have this -E cooling water system on aquatic biota.

authority to the exclusion of the Commission under the Federal Water fq Pollution Control Act Amendments of 1972. fj t1 ,

I do have some concern that the programmatic turn-over and the issuance of ..

guidelines for an approved State NEPA program will prove to be complex. 1 Also, I doubt that tiEPA delegation to the States will do much to shorten the licensing process or-simplify it--the opposite result seems more likely.

However, the bill contains a worthwhile provision in subsection 1951. that 4' will allow the Commission in any case to rely on State information, analyses, E R and conclusions in the environmental acceptability and need for power q

.c areas. Of course, these would still be subject to challenge in the . l.

Commission licensing hearings, and we would expect the State personnel involved in the review to testify and defend their work before the f

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Commission's hearing boards.

I think that one feature of the bill needs to be clarified. Under the bill j a State determination could be considered binding on the Commission because of the restriction on relitigation of issues provision even where there is no approved NEPA program. I fear that this might act as a " loophole" to ,

avoid t1 EPA compliance. There also needs to be clarification of how the ,

State need for power certifications under section 185 would fit in with the i NEPA delegation program.

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6. ' Coordination of Reviews.' [

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- fluclear plants, like other large energy facilities, are subject to a. . E ~

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. myriad of Federal and State licensing and review requirements. We.need r iS to lay the necessary groundwork for better coordination with these Federal sf and State' agencies. This is the objecti'.a of section 196 of the-bill which establishes a' statutory mechanism,for. Federal and State coordinction in the - ,

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- review and approval ~of applications. Ideally, all reviews could be con- y) solidated into one- agency at the State or Federal level, but this approach. J". .

hardly seems practical. in view of 1 ie extensive and controversial changes Y to. existing Federal and State laws that would be required.- The approach -

in section 196 isa more modest and practical one. The Commission would 7u ;

serve as a formal coordinating point for these reviews and would try to assure that all reviewers operated with the same data base and t cre aware ,

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of the progress and impact of each other's decisions. Timetables would be .. ..

set, but these could not interfere with any agency's statutory obligations,

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and the Commiss'on could not seek to influence other agencies' decisions. .

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7. Intervenor Funding

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Section 197 would establish a pilot progran for funding intervenors in "

.u domestic licensing and selected rulemaking proceedings. Hopefully, funding i q

would result in intervenors being better prepared and would shift the emphasis of intervention away from procedural issues to the more substantive technical issues that require exp'ert scientific and engineering assistance ,

to explore fruitfully. I know that there are questions whether funding f

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le will, in fact, improve public participation or merely produce delays, and many feel that the money could be better spent. I think that the pilot -

program is worth trying and I support it. It is a program that will bear

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close watching.

8. Miscollaneous -

E The bill would accomplish a number of needed and long everdue reforms besides the ones discussed above. The outdated requirement that construction permits state the earliest and latest completion dates would be eliminated, the Commission's present limited work authorization rules would be confirmed, and certain Advisory Committee on Reactor Safeguards (ACRS) reviews that are now mandatory would become optional. This last feature will help conserve the resources of the ACRS and enable the Committee to focus its review efforts I on the more novel and difficult questions. ACRS review would still be mandatory for standardized design approvals, and licenses and permits for 5 g

facilities other than thermal neutron power generation facilities. The bill would also change the Committee's name to the Advisory Committee on Reactor Safety (rather than Safeguards), a provision the ACRS opposes.

Finally, there are some useful principles incorporated into the declaration of findings and purposes in section 2 of the bill. In particular, section 2(a)(9) provides a useful statement of the role of ccsts in safety judg-ments and a recognition of the fact that absolute safety is an unattainable goal for any energy source, including nuclear. .

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(m Mr. Chairman, there has been considerable discussion of the impacts of '

i this bill on licensing delays. Ultimately, after approved sites and ,

designs are available, the Administration's till offers at least the

fd potential of removing practically all Commission approvals from the

• critical construction path if a utility decides to construct a preapproved .1 GG design at a preapproved site. Whether that potential will be~ fully

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realized may be open to debate. But I do not think that this bill should be viewed as an attempted cure for all licensing delays. Rather, as I  :

y see it, major benefits of the bill can be measured in terms of the progress 5 m

made toward rational.izing the present licensing system.

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As this bill moves through the legislative process, I expect there will be-reasonable _ differences of opinion regarding its details, and valid suggestions will be made to improve it.

In my judgment, it is important that resolution of those differences and suggestions not be allowed to block the enactment of the fundamental concepts in the bill. The basic licensing structure has remained unchanged over the years, especially since 1970. Whatever the future growth pattern of nuclear power may be, I am convinced that the existing system needs change. I believe the NRC has initiated administra-tively about all of the significant procedural reforms which are feasible under existing law. At this point, we need legislation to take us further.

Thank you.

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n TESTIMONY OF PETER A. 3RACFdRO 2 ij COMMISSIJNER, .U. 5. NUCLEAR REC-ULATORY C0tdMI55IClI 2 BEFORE TiiE h e,

• 'I SUSCOMMITTEE ON ENERGY AND TiiE EN'IIRONMENT OF TiiE  :)

.c; HOUSE COMMIiie.s ON INTERIOR AND INSULAR' AFFAIRS E i

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5 M0flDAY, l%Y 22, 1978 .j a

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m. I~ would like to be able to support this bill, or at least not :o l oppose 10. A' great deal of time and effort by .ceople whose judgement I i

respect has gone into it. Furthermore, it contains scme pro' visions that h 4

!iii seem to me to be useful and others that are no worse than harmless.

{l Under these circumstances, I would not oppose it were it not for three '.

provisions. The first limits the NRC's use of adjudicatory hearings in '

matters arising under the National Environmental Policy Act; the second ,

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provides for extensive construction activity to go forward under some --

I circumstances without the need for the piene in question having been specifically determined; the third states that issues thac could have 3

been raised in a previous proceeding may not be raised in any subsequent [

proceeding even it chey were not raised and are therefore still unresolved. .. ;

Befpre return'ing to these three concerns, I want to speak about the ai

. 1 context in which this legislation arises, for that context says a lot L!

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'I about what the bill shculd contain. The proposed legislation ccmes from ;j

-1 an Administration ccmmitment to the effect that "P.eform of the nuclear ...

.s licensing process is clearly needed. The present process is unsatisfactory ,

to all participants: industry, intervenors, and the federal government. N

-t The President . . . . has proposed that reasonable and objective criteria '!i i

be established for licensing and that plants that are based on a' standard .

i design not require extensive individual licensing."  !

Together with this Presidential commitment, the legislation comes ^

before the Congress at a time when demand for additional nuclear power plants has declined sharply. Consequently, scme suggest that the N

, u legislation is neecec to send the industry a message of cncouragement. j L 1, s

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Tnis does not seem to ~me to ba' a legitimate legislative funct. ion, but it

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is in any case amply fulfilled this 9 ear as. in many others, 'by other [a

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!" "1 scecific legislation and by the still su'stantial e nuclear share of the .

g federal energy research and development budget. u. .

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Lastly, the legislatien was shaped during a time when the licensing p ..;

_E y process was under a cicud resulting frcm a series of court. Judgements to '

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p the effect that NPC procedures were not adequate to deal with the .

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' legally recuired issues. Tnat' cloud has since been lifted b9 the -

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Supreme Court, so there is less need than there ever was for legislative h

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q modification of the recent Icwer court decisiccs.

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As the Chairman's statement indicates , 'I s'upport most of the pro- l:

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. visions of this bill. I do not feel that it addresses some of the most . r.

important issues confronting nuclear pcwer, but the pr'ovisions on early l siting, standardizacien, and intervenor funding clarify and strengthen The Ccmmission has also indicated  ;

Commission authority in useful ways.

support for the delegation of f4 EPA responsibility, though in a form j t

.s different and less comolica ;ed than this bill contemplates. Each Commissi ner would undoubtedly assign different pricrities to these s.,

reasures, but we feel that they can be so administered as to improve recl ear licensine.. ,

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carnot say the same for :ne three points that I mentioned earliar  :

ar.c wnicn : will new oiscuss soecif t: ally.

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First, Section -103 of the bill would produce a significant change in the Ccmmissions HE?A hearings. It would provide thac NE?A relatad issues should be heard in informal hearings, that is wi:heut such basic-tools as discovery,' subpcena pcwers, cross-examinatien, or witnessas put under oath. Only the factual and. Tegai issues that the if censing board '

deems " essential to the outccma of the preceeding" would be heard in an .

'I adjudicatory format.- This section is unfortunate' for several reasons. i~ l 5

First, adjudicatery hearings, wh'ich the NRC currently uses for all \,[

n contestad pcwer plant. licansing issues, are a better way to get an 'E $

H accurate assessment of ccmplex factual issues. If they are run effectively, ,  ;;]

they will not take'significantly lenger than informal hearings, but they will be a much morn reliable decisionmaking tool. They are more reliable because they permi: direct confrontation between the views of different ,

parties under circumstances that allow each party a maximum of opportunity t-v E

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to probe the assumptions and the weaknesses of the other's pcsition. 5 1

~ D Informal hearings, by contrast, allcw the parties to make statements p

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that contain untested allegatiens and assumptiens and that need not face .,

cross-examinatien. Within limits, this favors the witnesses who are i.

mest careleIs with the truth. In any clash of statements the chances of  !

t the fallacious ones prevailing, aspecially if they are sufficiently financed to be repeated by several witnesses, improve in ' direct prcportion t .

to the informality of the proceeding. As one of L.-c officials who must

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pass judgment based en the reccrds that will be built at these hearings, I ask ycu in the s:renges: :ar s net :c. change the current adjudicatery d .

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?,eliability is not, however, the :nly basis for my concern. The g provision does not make all .'IRC ;cwer plant licensing hearings infor=al. .

It does so only with respect to hearings under :he Nati:nal Env.i.ronmentai ,

?olicy Act.

Unfortunately, the distincticn between NE?A hearings and ,

health and safety hearings rests on a distinction between environmental F and safety issues. While that distinction has not posed a problem .in -

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NRC r iceedings to date, it is necessarily artificial, for human health -

is inseparable frem the environment. Furthermore, some environmental jh j y _.

issues c:me before us not merely under NEPA but under cther environmentai ~

i, laws which have c:mpelled adjudicatory hearings for all contested issues.

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If a legal distinction is made between NE?A issues and all others, the '

question cf whether the correct type of hearing has been held will be a new and significanu issue fo'r the courts to decide, and Congress wkil ..

have reopened a variant of the issue that the Supreme Court just told "%

y .z the lower courts to leave alone. The problem is made even more difficult F q, [F .a by the provisions of the legislation that delegate HE?A to the states. -

I A third concern with this provision is that it will vest new respon- '

4 sibility and discretion in NRC licensing boards. They will have to k, i

decide what issues arise only under NE?A and are essential to the cutccme, and they will have to evaluate and pene. rate the imprecisions of. the informal record. In vesting such increased discretion, Congress should c:nsider the fact that many of cur Licensing Scards are not currently held in high regard. They have seme individually excellent memcers, but +

is a whole, the Licansing 3 cards have been strongly cri-icized by in.arvences and facus",Q l'ika.

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by the Appeals Scards that oversee their. work for failing to ccmply with' ._' .

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+l*? . fundamental agency decisienmaking standards. -

The second provisien 'in !he bill thac seems unsound to me is- the ,

f proposed Section 193(e) that allcws extensive construction in some' cases p i::...

without a ' definitive finding that the pcwer is' needed. The construction gr :

may be considerably more extensive than is contemplated by cur current- l"*:7 Limited-Work Authcrizatien preceders. While the bill provides that the J

costs of this constructica shculd not prejudice subsequent decisien-

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making, such prejudice is almost inevitable. It is simply not likely is g

that a meanginful need for pcwer preceeding, especially one involving j r: ~

alternative scurces, can take place if 5100 million is alesady spent en -

a nuclear plant. No hardship results frcm requiring a finding of need- 3

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for the particular unit before ccnstruction.c:mmences. To do otherwise 3

is to force the Commissicn and/or the relevant state agencies to choose g_. %

between declaring very large sums misspent or staging comprcmised need for pcwer hearings. - - - -

While the' law addresses th'is problem by saying that the NRC or the l i

v l state may prevent early construction, this provision is of little use to j d

concerned citizens if the state and the Ccamission shculd not be inclined  :.

to take such a step. i m

The importance of a sophis9cated need for pcwer analysis is well ..

.i illustrated by the situation that has existed in New England in the last ..,

u two or three years. Utility customers have had to suppcet investment d o

. 1 that has produced reserve margins of more tnan 40'4 for s:me utilities. l l

The C:nnec-icut Pubife U-iii-ies C:n:rol Au ncei y has recen:iy urged j

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.i. [n Norcheast Utilities to cut back its c:mmicmenc to additional future capacity. -

Excess capacity prcduces high censumer costs of its cwn, and these k.

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coscs are ignored in the analysis of the costs of delay that are cited ~

as supporting this prevision's bias in favor of ccnstructicn first, questiens later.

4 The third provi'sion that I feel must be mcdified is in Section ~.- L 7:

IS9a(2)(c) fcund in Secticn 103 cf the bill. It recuires that anycne  %

p seeking to raise several types of issues at proceedings for construction 9 permits or operating licenses er renewals of permits must shew that "no opportunity for hearing" cn the issues in quescion existed at an earlier hearing or chat infcmaticn not previcusly in existence had been discovered. i.f..

When this Ccmmittee heard frcm the Department of Energy, the claim'was made that this concept embcdied only the well settled legal principles of res judicata and collateral esteccel and that the effect of this section would be to encourage early resolution of iss'ues. None of these statements is correct.

The legal principles exist, and they are useful, but they are significantly different in nor=al applicaticn from this bill. Furthe rmore ,

the bill as written actually encourages cencealment rather than resolution of many issues. Whac collateral estoccel and res judicata provide is tha: no parcy may raise an issue if ic has already been raised by any parcy and decided by the tribunal. Furthermore, current NRC practice R already pr:vides that a party is normally cbliged to make his cententiens

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<r:.4n in a :i.e:y manner er fcefei: t..em. This bili sces a significanc h[

L . .I 5:10 beycnc :hese :rinciples.  :: says that a person seeking to raise @

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-7 an issue must, unless he shows "significant new information" likely to cause the facility to be in violation of the law or NRC regulations, -

gp scmehow shcw that no ene could hafii rats'idfthelisue at a previous .=  :

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hearing. .  ;;;

A hypothetical example will illustrate just hcw unfair this provision g.

R might be. Let us say that the Public Service Ccmmission of Arizona, to [

pick ene at randem,. follows the early siting provision and gets a site -y...

approval'in 1983. In 1985 a citizen of New Yor:< moves to Ari:cna and settles near the si:e. Uncekncwnst to him, the NRC is at that time in the process of approving six different standard designs. In 1988, Public Service of Arizona takes one of the six standard designs and v:.

starts constructicn en the . site. The hypothetical citizen feels that a cooling t:wer is vital and tha: the transmission lines will have a

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disastrous impact and should be rerouted. Neither issue was raised in either of the aarlier hearings, in which he would not hava been involved.  :..'

Both issues could have been raised but, by design if you will, were not mentioned by the utility or uncovered by the Licensing Board. Under -w N Eo conventional application of res judinata and collateral estocoel, these I issues could s:ill be raised. More importantly they should be raised ^l

.l and resolved. Under the legislation before you, they cannot be raised, j 1

and the COE witnesses' testimony that this extraordinary result stems g a

fr:m conventicnal legal principles stretches those principles past the .

breaking point. Furthermere, far frem en:curaging early resolutien of issues, this prevision as drafted enc:ura;es their c:ncealment, for if they esca;ec ;rnaticed at the #irst hearing, they cannct c me up again in ne a:sance Of si;nifican: in#crma-icn not in existence at the time L r

. . . ._ _= _ _ ._ . . _ .

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it of the earlier hearing. The way to enccurage early resolutten of -

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issues is to provide that issues.accually censidered in . prev,ious hearings

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' may not be relitigatad. Taken together wi.th the principle that a party f:

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must raise his issues at the appropriate stage of a proceeding or

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~i4 forfeit them, this different standard is needed. to make the legisl'ation confonn to the testimeny of its spensors. .

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t As I have said earlier, parts of this legislation are desiracle.. " -

Intervenor funding in particular is n.ecessary to a full presentation of the issues in scme preceedings. To these who say that this proposal , y, d

=s favo.rs scme "specirl interests groups" a.,d their views in NRC p,receedings ,

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I would point out that our research program, not to mention DOE.'s .. Is routinely contracts for millions of dollars of work that applicants can a

use directly in, their 1icense applic.ations..

Indeed, some of this money e a

goes directly to the reacter vendors and architect engineers who will ,

use it in standa.rd design applications. Lf funding "special interest h, grcups" to help their particiaptien in the licensing process contravenes ,

the intent of Congress, this resear.ch needs to be reviewed and rediracted.

Committed as I am to intervenor funding and however. much pctential I may see in early . siting and standardf raticn, the Cccmissicn can =cve _".

I in these directions on its cwn, albeit not as clearly as this 1egislation ,,

centemola es. Nevertheless, I wculd urge that the Ccngress not . enact

nese gains if i: .aant accaccing :he limits en public partic.ipatien c's:ussed abcve. These limi:a:i'cns cnly mak.e sense if ene accepts ,

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., i the view that nuclear powe'r's" troubles flow frcm misguided citizen groups asking too many cuestions. No responsible study supporcs this v.-

proposition, and several studies rebut it.

In short, the abridgements on cublic participacion con:Emplated by this bill are part of a " love it or lose it" attitude toward which some industries, especially energy induscries, are inclined as par of effer s to blame their trcubles en their critics. 'fithout

. detracting frem the i

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contribution that I hoce nuclear power can concinue to maka tcward meeting the world's real energy needs,'I woula suggest that the indus.try's troubles come mostly frca a different direction - a direction that this s bili does not address. .

h Much of the. problem lies .with the commitments, pressures and expecta- U tions spawned by the grave overestimates of nuclear needs and possibilities that once emanated from the AEC and from Ep0A. As bureaucratic and institutional prestige became committed, one almost rational step at,a ]

y time, to stated and perceived national goals that had very little to do j with real national interests, truth and other pecple's money were the '

firs: casualties. The cruth took a beating in silenced concerns and _

rigged or suppressed s .udies. Conclusions were excressed in assurances 1

of safe:y so absolute :ha: :ne incus:ry and :he Ccmmission can new te encarissac in:: snu:dcwns :y :c:asi:nal shcwings ini: isse-tedly it: css': 'e Sc:idin: jaquencas are me"ely '/ery hi nly iC0":03 le. "assive fininCil",

_. . . . ~ . . . . _ _ _ _ . . _ ... _ _. . . . . _ _ _ _ . _ . . . .__

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c:mmitments were made by utility ratepayers and by taxpayers to a nuclear -

E future clearly in excess of anything that the nation really needed

m. .

within the time it was to be provided. Alternatives , including scme

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, nuclear alternatives, were g iven s hort s rh i f t. As criticism graw, those  :

- who participated in the initial misjudgements behaved as though openminded }

reevalua: ions would be admissions of previous er,rors. Instead they @

blamed nuclear pcwer's troubles on delays and 'osses of confidence ,

caused by its critics, whosa patriotism and integri:y and allegiance to .

the .imerican dream were subtly or not-so-subtly called in:o question. l If one is to understand the ways in which large governmertil entities  :

can bec::e over-c:mtitted o casual and ultimately self-justifying  ;;;

definitiens of national well-being, our energy past is important both as ,

a mac and as a warninc. The limitations on hearings and issues in this j legislation can be described as an extension of that past - a desire to avoid real issues that is based on an ill-informed exaggeration of dimly

,s perceived dangers. The savings in time ascribable to the hybrid MEPA hearings, the emitted need-for-power determination, and the limitations .j

J en raising new is, sues are negligible. The losses in reliability of the

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hearing process are large. These proposals may offer solace of a sort ...I to these p?esent COE officials who were frustrated at the AEC by NEPA,  ;

by intervencrs and by the ccurts during nuclear power's happier hours ,.

A five years ago. They have no other icgic. They can do very little gced W

ind tay do c:nsi eriola harm. . lei:her this Commi: ee nor the Congress j

i I* .' i,*: 0."s e Or.e% in iny*.hing $ik !r e i " p ." S i i" ". # fm.

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