ML20150E458

Forwards Hendrie Statement Before Subcomm on Nuc Reg 780628,Hendrie Views on S.2775, & Bradford Testimony Before Subcomm on Nuc Reg 780628 in Response to 781120 Request for Comm Support in Streamlining Lic Process

ML20150E458
Person / Time
Issue date:	12/01/1978
From:	Hendrie J NRC COMMISSION (OCM)
To:	Randy Patterson ENERGY PRODUCTS GROUP
References
NUDOCS 7812200018
Download: ML20150E458 (53)

Text

• UNITED STATES

- (f,.f g *' % ,%. NUCLEAR REGULATORY COMMISSION j

} WASHINGTON, D. C. 20555 4M, .//

'% December 1, 1978 c.e4 A CH AIRMAN l

ll Mr. Robert C. Patterson Plant Manager Energy Products Group 235 Kilvert Street Warwick, Rhode Island 02886

Dear Mr. Patterson:

This is in response to your letter of November 2, 1978 requesting my support for proposals to streamline the nuclear licensing process, and urging support fer nuclear power generally.

The Commission has supported legislative proposals to reform the licensing process. On June 28, 1978, I presented the Commission's views on S. 2775, the proposal about which you inquired specifically. I also provided my personal views, in which I strongly recommended enactment of the bill. I am enclosing copies of both those statements, as well as the separate views of Conrnissioner Bradford. Although none of the proposals for licensbg reform was enacted by the 95th Congress, we expect that similar ' ills will be introduced when the new Congress convenes in January.

With regard to your suggestion concerning support for nuclear power, as well as other energy sources, I would emphasize that the charter of the Nuclear Regulatory Commission is exclusively regulatory.

We have neither the responsibility nor the authority for promoting the nuclear option, or any other specific energy source. Our charter is established by the Energy Reorganization Act of 1974, and reflects a judgment by the Congress that a strict separation should be maintained between the government agency responsible for the development and promotion of energy sources -- now the Department of Energy - .and that responsible for nuclear regulation. Therefore, I believe the concerns l raised in your letter concerning support for nuclear energy are properly l addressed to'the Department of Energy.

78122000$

. Robert'C. Patterson -

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.i I appreciate your having written to me on these important' national issues.

Sincerely,

.AkWL J5st'ah M. Hendrie

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Enclosures:

.1. Hendrie Statement before Subcommittee on Nuclear Regulation, 6/28/78

2. Hendrie Views' on S. 2775

3. Bradford Testimony before Subcommittee on Nuclear Regulation, 6/28/78 Y e

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r STATEMENT BY .

. JOSEPH M. HENDRIE, CHAIRMAN, -

. U.S. NUCLEAR REGULATORY COMMISSION BEFORE THE, SUBCOMMITTEE ON NUCLEAR REGULATION-OF THE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS UNITED STATES SENATE JUNE 28gt ,9,78 l e

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S. 2775-l -

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Mr. Chairman, members of the Subcommittee, I appreciate this opportunity to appear today as you consider S. 2775, the Administration's nuclear licensing reform proposal titled

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the " Nuclear Siting and Licensing Act of 1978." Although the Department of Energy took the lead in developing this proposal in response to the President's call for an improved licensing -

process, the NRC was consul'ted and commented extensively on various draft versions until late October. From then on indi-vidual Commissioners commented on a less formal basis on various drafts and options . The Commission supports many of the basic features of this bill because we believe they repre-sent reasonable and workable approaches to improving a number of aspects of the present licensing process. The bill would pr' ovide explicit legislative confirmation for seme important regulatory concepts the NRC has been . seeking to develop under

, existing law.

This, statement reflects the views of the Commission as a whole, Mr. Chairman. I will later give some personal views en the bill. My fellow Commissioners are with me today and they, too, have individual views on features of the bill and related problems which they may wish to express separately.

Given the complexity of the subject matter, my relatively brief statement today is necessarily cast in rather general terms.

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. , 2 The process by which the NRC licenses the construction i and operation of nuclear power plants in this country today

. is complex and controversial. From the industry 's perspec-tive, the process is too lengthy, cumbersone and uncertain.

l Citizen groups intervening in our proceedings find them .

frustrating and expensive.' They want changes that will increase their opportunities for early and effective partici-pation, including funding of needy organizations. States i and localities, for their part, are increasingly asserting interests in decisions on nuclear plants, particularly in the environmental and waste management areas. The state environ- ]

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- mental initiatives are entirely legitimate, but because of  ;

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REC's independent obligations un. .. .

der the National Environmental l Policy ;.ct, they threaten to produce duplicative reviews at the State and Federal level.

Reforms to the nuclear licensing process should attempt to accommodate in a reasonable nanner the numerous and some- )

i times conflicting interests which are invcived. Therefore, I think it would be useful to recognize at the outset that we will not be able to develop an ideal legislative solution for everybcdy's problem. But I think that there are certain points upon which, hopefully, we can agree, and I would urge that this pessibility for consensus not be lost in an understandable desire to achieve perfect solutions.

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The fundamental ideas in the bill are not, for the most part,. novel. Most of them have been incorporated in earlier )

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. legislative. proposals by the Commission. I think we need toi  ;

, recognize that S. 2775, if enacted, is not going to remake q the world of nuclear power plant licensing, and that it may .

l not fully achieve the Administration's stated objectives and projections,.particularly in reducing the overall time required to put a new power plant on line. Some problems in-that process, . such as utility construction delays or financial difficulties, are not easily susceptible to a legislative or administrative fix. Furthermore, the reform hopes tied to this bill are premised, to some degree, on expectrtions of what the utilities and the. nuel,e,ar industry may . de in response to its enactment. 'However, I believe it is fair to say that

. both the Congress and the Administration envision an energy policy of real choices -- among conservation, coal and nuclear l

in the near term. Aspects of this bill should improve the l economy and reliability of the nuclear choice.

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l Nuc' lear Licensing Today The basic statutory structure now. applicable to licensing and regulation of nuclear power plants was developed almost a quarter of a century ago. Nuclear power plant licensing is a two-stage process. .First, a constructicn permi: is cbtained

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g which authorizes ~ construction of the-plant at the site of  ;

h intended operation, and then an operating "_icense is obtained-

- prior to fue,1-loading and operation at power. The construc-tion perrat review stage focuses on the preliminary design of the clint and the suitability of the proposed site while the: ,

. . operk'; ins license review stage focuses on the final design of' the plant and the adequacy of actual plant construction. A formal adjudicatory hearing is held, even in the absence.of ,

- any controversy, prior-to issuance of a. construction permit and an . opportunity for such a hearin5 is offered prior to  ;

issuance of an operating license. The statutory Advisory ,

i Committee on Reactor Safeguards reviews applications for both -

the construction permit 'and thy,. operating license .

The substantive areas addressed in the N?.C licensing

- review process are radioloSical health a.7d safety, national-security, antitrust matters , and . environmebral protection.

The first three areas are mandated by the Atomic Energy Act; .

the last area, environmental protecticn, is mandated by the Nat,ional Environmental Policy Act of 1969 and certain other ,

i Federal laws. The primary' focus of the Atemic ' Energy Act is on radiological health and safety ,_ which has been largely

-! " preempted".by the Federal Government in the sense that the i  ! '

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S t a t e s ,' general authority to license er regulate nuclear reac-i

( -tcrs in this subject area is severely limited. -

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l prctectien, on the other hand, has not been made an exclusive Federal responsibility, but is shared between the State and localities and the Federal Government.

1 The world is obviously not the same as it was 25 years  !

ago. The array of issues presented to the regulatory process ,

by a nuclear power plant proposal, and the scope and depth of aininistrative review of that proposal, have expanded enormously. Some figures may help to demonstrate the situa-tion more concretely. Recently we analyzed data relating to ten applications for construction permits which have been issued since the formation of NRC. Construction permit review data are noteworthy because the time required for the NRC

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r'eview could affect an applicant's critical path for con-

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struction of the plant. When we say,that a licensing decision is on the " critical path" we mean that the decision is in a position to delay the construction of the plant. In the recent i staff study, we found that on the average:

(11 20 months elapsed between the docketing of the l applicant's environmental information to NRC and NRC authori-zatio'n for the applicant to commence preliminary construction and site-clearance activities, including 6.7 months time taken up in the hearing phase in contested cases; (2) 33 months represented the period'ce: ween the decket-ing ;f a;;licant's safety infermatien te !!RC and .'!RC

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i i c..horization of a construction permit, including 7 months i

for the hearing phase in contested cases and also, in general, including the 20 months time for obtaining a limited work 4

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authorization. -

To a certain extent, these figures reflect decisions .

by utilities to slow down their pursuit of a license because demand ' uncertainties have postponed the time at which power from a plant was thought to be needed. To the extent that the regulatory process itself increases the time recuired to get a plant on line, one of the objectives of licensing l

reform should be to reduce the ameunt of time that the licensing process is on the critical ;ath of the facility's construction. g et. 4 Overview Of S. 2775 To acccmplish the objective of reducing the amount of

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time that licensing is on the critical path of plant construc-tien, as well as to provide increased stability in the licens-ing process, S. 2775 offers three main features: (1) early site review and site permits; (2) approval of standardized reactor designs; and (3) the ccabined ccnstruction permit /

cperating license. I will touch upon these features in more detail shortly. Speaking very generally, however, each of these three features cont emp ?_ at e s early regulatcry decisi:ns

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7 thac would be accorded a presumption of correctness in subsequent administrative proceedings.

The licensing process , by its nature, cannot be. wholly removed from the critical path, but it can be better struc-tured in this regard. The bill's "early site review" fea-ture demonstrates the "cri.tical path" concept in practice.

It offers the opportunity for the power plant applicant to

. have site-suitability questions resolved at an early time when construction decisions do not hang in the balance.

Both "early site reviews" and " standardized designs,"

another feature that relates to removing the licensing process from the critical path, are presently being implemented by

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NRC under existing law. The bill would confirm present practice and, in certain respects, allow us to extend these ,

useful concepts further.

The bill also introduces two ideas that have not had a place in earlier reform proposals, but are no less well known.

The first such concept is authority to transfer to the States the decisions about the need for power and the environmental, acceptability of a proposed nuclear power plant. Fob States that are willing and able to qualify, I believe this provision

- gives them the final say over local issues in nuclear power plant licensing.

TNe other.relatively new idea is a pilec program of government funding for individuals or groups who intervene v n-, ,. , ,. ,- - ,-y,- .cy,*-, ,-e  % err - r- . - +

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in NRC regulatory proceedings. This is a centroversial idea, but we 'have come to the conclusion that the funding-of

- intervenors would be a useful contribution to the licensing process. ,

Important-Features of S. 2775 ,

~ I have already mentioned the essential features of the Administration's licensing proposal. Le.t me briefly describe the Commission's pos1 tion on these and other features of the-bill.

Advance-Planning and Early Notice. This section provides explicit NRC-authority to encourage open and advance planning by utilities, with opportunity- for carticipation by NRC and by interested persons and grou$E'. ' The provision would help to identify and resolve potential problems early .in the ;1icensing process 'and is ' consistent with recommended improvements in the licensi'ng process developed by NRC senior staff members ,

(Nuclear Power Plant Licensing: Opportunities for Improvement, MURIG-029 2 ) , including increased public participation during i

the' pre-docketing review stage of an application.

Modified Rearine ' Procedures. The prepcsed legislatien changes current NRC practice in'providing for'" hybrid" or legislative-type hearings for issues arising under MEPA and h

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I requires the States to use procedures co= parable to those i cf ::EC in making _ their NEPA environmental and need-for-plant >

I reviews. Adjudicatory hearings would be mandatory only for )

i safety issues. The Commission is divided on whether this change is a desirable one. ,

Early Site Reviews. 'The Commission has already adopted by rulemaking a program to " pre-approve" nuclear power plant sites. But this feature of nuclear licensing is important enough to be accorded statutory. recognition, and it would clarify and extend our present authority. For example, the bill would allow States, and not'just utilities, to apply for early site review and develop a " bank" o~f approved sites.

In essence, early site rey,(ew permits the decoupling of the " siting" decision for nuclear plants from the construction decision. From the standpoint of the applicant, the idea is desirab.le because it recognizes the applicant's readiness, in the appropriate case, to have issues of site suitability I resolved before settling on specific design and construction p la,ns . A pre-approved site would, of course, normally recove the matter of site suitability fr0m the critical path.

i From the standpoint of the public , early site reviews could largely separate out the local issue of nuclear power W

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. . . 10 plant siting in which the public is mest' interested. Alsc, it could lead to a resolution of siting issues much earlier i in the overall process, when a poor decision can more easily be turned around.

The most frequent criticisms of early site. approval are 9

that it fosters a nuclear. power bias to power plant siting, and that it freezes into acceptance a siting decision that might subsequently turn out to be ill-advised. The bill addresses each of these by (1) assuring that approval of a site for a nuclear plant -would not bar its subsequent use 1 for other types of energy facilities- and (2) providing for a reopening of site-suitability issues upon a showing that ,

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significant new information has _ been discovered.

.:s Standardized Desiens. This feature of the bill is also reflected in current NRC administrative practice. If I were to attempt a definition of the usual form of standardized design, I would say that it is a facility design which has been proposed by a vendor, apart frem a specific plant licensing proceeding, for NRC appreval, as a design which is suitable for use in later construction permit or operat-ing licenss applications. The availability of standardized designs offers a number of potential benefits and is a cencept which merits clear statutory recognition. The cenceph encourages the concentra:icn cf technical s;affs ,

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1 for both the NRC and the reactor vencor, on a few designs '

rather than spreading these resources over many designs.

Next, it encourages more complete developnent of the design at an early point in the design-fabricatien-constructio.n ,

sequence. This should help in improving the quality of the plants and in preventing costly construction mistakes.

These factors should enhance safety, as well as reduce the construction time and the cost of standardized plants.

In connection with the licensing process, a primary ,

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. scal of standardication is to introduce a degree of sta-bility and predictability. This is accomplished by both industry and regulator . forgoing for. specified periods introduction of changes having only marginal public benefits.

.. u Standardization is not intended to freece the design of

. nuclear plants, or to restrict improvement of the technology or additional public health and safety prctection but rather to cause such changes to be made at specified inter-vals. No standardized design for a nuclear pcwer plant wou1d be approved by the NRC without the full array of l

reviews and procedural,protections, including notice and

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trial-type hearings , and no pcwer plant using a standardized design would be approved without modification if -there is significant new information that casts doubt on the design.

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. 12 "nder S. 2775 an approved design remains good for five years , with renewals possible for . 3-year periods . Given today's developmental pace of the light-water reactor i

technology, the rive-year. basic approval seems reasonable ,

particularly with the provision that significan't safety .

discoveries arising during that period would have to be incorpdrated in approved designs ~. '

Transfer of Environmental Review to the States. NRC's review of a proposed nuclear power plant includes considera-P tion of environmental impacts, both radiological and non-radiological. Recently, several Sta'tes have take'n a more active role.in power plant siting, and, in the case of' ,

nuclear plants, this' has somet,im.es  ;. u produced a situation in which the same environmental aspects of .the same proposed' nuclear plant are reviewed by both NRC and the State. In seme cases, we have held joint hearings with the ' State' on matters of concurrent jurisdiction, but joint hearings at best treat only the symptoms of NRC-State duplication, rather than the cause.

S. ???5 offers to the States the opportunity for the sole and. final administrative say about the need for, and environmental acceptability of, a proposed nuclear power 4

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. . t plan or site for such a plant. A State which desired to ma:-:e the non-radiological environmental determinations about a plant or a site would be required to submit a program for making the determinations to the Commission for review and approval. To be approved, a State program must contain certain basic features including a State commitment to comply .with the National Environmental Policy Act of 1969 From'our perspective, we think it is reasonable to require that the State environmental review for a nuclear plant or site be at least the procedural and substantive equivalent of what NRC is required to do. State environmental deter-minations under an approved program would be binding and not subject to review in NRC proceedings.

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It makes sense for either the MF.C or he State to-con-

, duct detailed environmental reviews of nuclear power plant proposals, but it does not make sense for both to do it . If States accept the authority and responsibility under the scheme proposed in S. 2775, this duplicatien will be largely avoided.

However, I would add one final cautionary thought. It is dcubtful that transferring the envirennental review to the States will speed up the process of licensing nuclear plants. Indeed, there is no certainty it will not lengthen that prccess. It was with this in mind tha; the Ocamission e,--. ....,,-,e, ,y .r,.-,m , umz, ,. ,,.~,w-,~.- i,-e.w. .m. , - - - , - , -%e-m,= ,

,e Offered its own version on this subject during the inter-agency review of the DOE bill, and the essence of this preferred approach is now contained in section 1951 of the .

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Combined Construction Permit / Operating License. If a person proposing to construct a nuclear power plant pro-vided final and detailed information about the proposal, the bill would authorize NRC to grant a combined construction permit and operatin~ s license in one proceeding. For example >

an applicant might come forward with a proposal that referenced an approved final design for the power plant, and proposed construction at an approved site. Under the bill, such a preposal would remove the licens.i.ng crocess from the criti-cal path of the plant's construction and operatien, subject

, to possible consideration of new information arising after the site and design approvals.

The combined CP/OL authority would be an important alternative avenue to an NRC license, and cne we would encourage. I would add that it is no: a proposal to " hurry u;" plant licensing on the basis of quick or imperfect regulatory judgnents. Rather, the under Fing principle is simply that if regulatory decisions can be made at a certain time, they should be authorized to be made at that time.

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Funding for Intervenors. The final impcrtant feature cf S. 2775 is the~ authorization.of funding-for inter-venors in Commission proceedings, on a pilot program basis.

In theory, funded participants in agency proc.eedings are better prepared participants and better prepared parti- -

cipants should enhance the quality of agency proceedings and decisions. Our appeal board has frequently attested to the value of intervenor contributions in the licensing process. Our proceedings often involve issues that can be approached from substantially different . viewpoints . We -

believe that it is in the public-interest for these differ-

. ent viewpoints to be explored adeouately. However, our staff, '

while continuing its efforts to.:epresent the public interest, ~

is itself a party , and cannot reasonably be expected . fully to represent opposing points of view in our proceedings. In some-cases, then, the Commission can expect to receive a more thorough airing of the issues if it is able to fund qualified intervenors to pursue them independently of the ::RC staff.

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.There are major questions whether the theory will work in practice, but we think it is an experiment wcrth trying.

, Mr. Chairman, in closing, I would like to restate that i

the Commission supports many of the features of S. 2775 as 9

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. . 16 a reasonable approach to the matter of licensing refom and as explicit legislative confirmation for cercain regu-

.., latory concepts which we are already implementing. We have some detailed comments on areas where technical or clarify-ing changes may be needed, and wish to submit them for the -

record. These detailed comments could be supplemented later by recommended wording changes in the bill if the Committee wishes.

Mr. Chairman, that concludes my prepared statement.

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Itens of Clarification Suggested Fcr '" Nuclear Siting and Licensing Act of 1978," ,

H.R.11704 and S. 2775 i

1. Section 2(a)(5)  !

This Congressional finding may be read as implying Federal preemption of need for ' power determinations Since the bill,itself d,oes not pre- j empt the States, the finding should be deleted.

2. Section 2(a M6)

This findir.; should be deleted because the operative provisions of the

. bill do not reouire, as the finding seems to imply, that energy facility planning and need for power determinations he made consistent with n'ational energy priorities.

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3. Sections 102 (revised section 185),103 '(revised section 189a(2)(c.),

ano 202 4

i Under the bi)1 State need for power determinations could be hinding on i

the MRC.if made as part of a certification of need (section 102), part I

of a State proceeding which would limit NRC relicigation of the issue under the expanded res judicata concept (section 103), or part of a l

State NE?A progr.am (section 202). Similarly, environmental acceptability determinations could be binding on NRC either under section 103 or

} section 202. NEPA compliance is not mandated under sections 102 or p

l 103 but is' mandated under section 202, and hearings are mandated under sections 102 and 202 but are. not mandated under section 103. The

2-f three provisions need to be harmonized if the prerequisites for binding State determinations are to be uniform and consistent.

4 S ction 102 (revised sections 18Sa. and b.) i

a. It would be helpful if the bill were to specify which Federal Court (District Court or Court of Appeals) would have jurisdiction over the. l

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State need for power certification. i

5. Also, it should be clarified whether the State certification must be made as part of any approved NEPA delegation program under section 202.

5. Section 102 (revised section 185c. )

The meaning of "at the risk of the apdf cant" should be clarified.

Specifically, it should be made clear whether this provision would preclude special treatment of " sunk costs" in !! EPA reviews.

S. Section 103 (revised section 189a(1)(C))

a. It should be clarified whether "environnental" matters required to be addressed under the Atomic Energy Act as amended by this bill or under Federal law other than NEPA (for example, National Historic Preservation Act) would be subject to trial type or " hybrid" type hearings.

5. It should be clarified whether "triai ' type" hearings would be held on conflicts in expert opinion.

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c. It should be clarified whether, as provided by 5 U.S.C. E 5E3, NEpA issues would be addressed by written comments or whether, as indicated in the DOE section by section analysis, orti hearings would be held. ,

d.. It should be clariffed whether NRC (and States) could provide for ,

a greater degree of public participation than that called for by this --

paragraph.

7. Section 103 (revised section 189a(2)(C)) ,

It should be clarified whether the restriction applies only to applicants and intervenors, or to the NRC as well . 'In particular, it should be clarified whether. this provision limits the authority of the Commission, Appeal Boards, or Licensing Boards to r&4se issu.is sua 'soonte.

8. Section icd

a. It should be clarified that,. before an interim operating license or authorization could be granted under section 192, it must be found not merely that any hearing on significant site specific safety and safe- ,

guards issues has been completed, but that all substantive safety and safeguards requirements have been met. Such a finding would be made by the Commission's Staff (the Commission's designee) and would ,narallel' the finding required for interim amendments by secticn 1925.(2)(B).

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b. It would be helpful to point out that the hearing concie: ion finding R

.in section 1925.(2)(A) would not require any premature Commission  !

-decision on the merits.

9. Section 105' (new' section 193b.) l It needs to be . clarified that the required contents of site permit

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applications relating to non-radiological matters (for example, . levels of thermal effluent) would.not apply where NRC has delegated its NEPA functions to a State under new section 195.

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10. Section 105 (new section 193c.) J It should be clarified that the requirement for findings in section 193c.(2)l l l

. merely restates the applicable law under the Administrative Procedure

'Act.

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11 . Sections 105 (new section 193d(2)(B)) and 106 (new section  :

194d(2)(B))

l It should be clarified whether only 'one renewal will be permitted or I l

whether an indefinite number. of renewals will be permitted without some measure of upgrading of the site or design. '

12. Section 105 (new section 193e. )

I a.. This subsection presents the.same " sunk costs" issue as I revised section 135c. (see paragraph 5 above).

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b. I: should be clarified whether NRC or a Sta e could stop construction activities because of information suggesting that there was no need for the plant in the time frame proposed by the applicant. l l

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13. Section 105 (new section 193f.) l i

a. Scme guidance on the meaning of the phrase " generic future need for el ectric power" woul d be hel pful ,

b. New section 195a(2) seems to be drafted so as not to require any need for the plant finding at the site permit stage, yet section 193f.

- calls for some limited kind of need finding at this stage. The two 2

provisions need to be harmonized.

~ 14.. Section 106 (new section 19a)

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It should be clarified whether the notice and hearing requirements of

. revised section 189a. must be complied with before the designs in the pending proceedings could qualify as approved standardized designs.

15. Section 202 (new section 195b.)

a. It would be useful to point out that MRC obligations to consider environmental issues under Federal laws other than NE?A (for example, National Historic Preservation Act) are not affected by the NEPA delegation to the States,

b. The in:ent of section 195b.(3) is uncisa since, absent an approved

-program under new section 195, States do nc cake any determinations under NEpA.

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15. Section 202 (new'section 195d.)

.It should be clarified whether the MRC radiciogical safety assessment would be subject to challenge in the NRC licensing hearing.

17. Section 2C2 (new section 195e.)

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There is the same issue here with Federal Court jurisdiction as appears .q in revised sections 185a. and b. (see paragraph 4 above).

18. Section 204 It should be clarified that the revised section 271 does not affect a State's authority to stop a plant for valid State reasons (for example, i

r,easons relating. to environmental impacts or public convenience and I necessity).  ;;z G

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Personal Views of Chairman Joseph M. Heridrie on S. 2775, the " Nuclear Siting and Licensing Act of 1978": Before the Subccamittee on Nuclear Regulation, Comnittee on Environment and Public Works i June 28,'1978 Mr. Chairman and rnembers of.the Subcommittee, I am pleased to provid'e my personal views on the Administration's proposal to reform the licensing

. process for nuclear power reactors. I should say at the outset 'that with a few miner exceptions, I support this bill and strongly recommend your favorable enreideration of it. I would like first to describe briefly the present system and its problems, and then discuss provisions of the proposed legislation.

The basis for the present licensing process for nuclear power reactors is the Atomic Energy Act of 1954, as amended. That Act was generally premised upon the concept that the licehsing/ process would entail case-by-case reviews of applications to construct'and operate reactors of

, particular designs at specific sites. Under this scheme, the Commission's decision on construction is deferred to a point at which there is already a commitment by the utility to construct a plant on the specified site and any substantial delay would be expensive to the utility and its ratepayers.

The Lasic nuclear power reactor licensing structure has remained unchanged since 1954. From 1954 until .the 1960's, nuclear power was in the early

stages of commercial developnant. The. licensing of nuclear plants during i that era consisted primarily of ar, analysis by one agency - the AEC - of radiological health and safety and comnon defense and security matters.

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There was minimal State or other Federal involvement in the licensing I

process. Since then, the National Envirenmental Policy Act of 195F (NE?A) and other environmental laws have been enacted which require the consider-ation of a wide range of environmental matters in the licensing process.

Environmental reviews, unlike radiological health and safety reviews, both by statute and practical necessity require the involvement of numerous Federal and State agencies and departments. Many of the environmental issues rdlate to the adequacy of proposed sites and the need for nuclear power reactors to produce power on the schedule proposed by the utility.

At present, scores of regulatory approvals need to be obtained by a utility from various Federal, State, and local acercies before a nuclear power reactor can be constructed. No formai mechanL 'ow exists for generally coordinating all these environmental revis -

Also, existing requirements do not fumy recognize ths interests and capabilities of the States - the governmenta'l entities mo t directly affected bj a decision to authorize construction or operatior, of a nuclear power plant. Under existing law, State public utilities comissions or similar bodies are now generally empowered to make determinations regarding need for power. Nevertheless, the existing licensing process calls for this' fundamental issue to be decided again at the Federal level by the Nuclear Regulatory Commission. In addition, many States believe that general non-radiological environmental acceptability determinations regarding nuclear plants should be predominantly their responsibility as are, for example, related questions of zening and land use. In areas in

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.3 .

wh'ich nuclear plant impacts are likely to be signiffean , such as er.vironmental impacts .from the plant's cooling sys:em, _ the Federal' Water l

?cilution Control Act alre:dy gives the States a significant role, although the. NRC still has the duty under NEPA to assess and weigh the environmental impacts. .

Apart from these developments which emphasize the role of the States and .

other Fed rel s'encies in the licensing' process, there has been a funda-mental change ir. the nature of the nuclear . industry. Prior to 1971, the  !

nuclear industry was going through a developmental. phase and each applica-tion was for a. custom or one-of-a , kind p.lant design. Standardized designs were not use. Since that time, there has been consicerable ' progress in Yet the existing licensing structure is still standardizing designs.

geared predominantly to_ the review and approval of a custom design at a l _>

particular site on a case-by-case basyisb ..Further, the existing process fails in most respects to recognize the imp'ortant role of the reactor vendor and the architect-engineer who, in fact, design the important reactor systems.

In my view, these significant developments demonstrate the need for funda-mental changes to be'made in the, licensing structure of the Atomic Energy l

Act. Legislation for that purpose was sent to the 92nd, 93rd,'and 94th Congresses and was the subject of extensive hearings on each occasion.

Although no Congressional action was taken on any'of these legislative proposals, experience has confirmed and reemphasized that fundar.rntal procedural changes in the licensing structure of the Atomic Energy Act are

.,m .seeseen .se A sa w 9,,,,

icnc'cverdue. In my view, five fundamental issues need to be addressed by such legislation. First, we need to reorien the whole licensing i process from one focusing on case-by-case reviews of utility applications to build particular plants on particula'r sites, to one focusing on 1

separate reviews of designs proposed by reactor vendors and archite'ct- -

J engineers on the one hand, and sites proposed by utilities or 5 a:as on -

1 i

the other hand. The Administration's bill incorporates this concept in the provis. ions for separate approvals of standardized designs and for sites. .

Second, we need to structure a regulatory system that will provide for early public notice and early public participation in the review process.

Advance public notice and separate and early site and design reviews ar.

. contemplated by the Administration's bill should focus public participation on cru,cial aspects of the overall faciiity planning process at early points in time before heavy utility commitments to a particular design and site.

Third, we n;ed to lay the necessary groundwork for better coordination

- - with other interested Federal agencies and with interested States. This objective is also included in the provisions of the Administration's bill, which also emphasize the importance of advance planning.

)

Fourth, we need to better recognize the role of the States in the decision l

to build a nuclear plant.

, ,Fifth, we need to increase the stability and predic ability of the licensing process. There is a need to not only make. sound regulatory decisions, but to stick to them unless changes are really needed. The provisions in the

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4. .

4 Administration's. bill for early sice ap rovals, for standardized designs, for combined construction permits and cperating licenses, for coordination of government reviews, and for various changes in the hearing ~ process all contribute to this goul.

Mr. Chairman, I would now like to turn to specific provisions of the bill. .

' l. Early Site Acorovals Section 193 would authorize the Commission to issue site permits for thermal neutron power generation facilities. Mandatory formal hearings

'would be required before these permits could be issued, and the permits would be valid for ten years, with opportunity for renewal.

The Commission already has regulations providing for early decisions on site suitability issues as a part of the,gonstruction permit review and ,

hearing process. Secti'on 193 would authorize the Commission to approve a site separate from any construction permit application - for example, '

a site proposed by a State as part of a State planning or. site " banking" process. I believe that these provisions are worthwhile and should serve l

to remov6 -time-consuming site reviews from the " critical" path of plant const.ruction.

Two troublesome issues related to issuance of site permits - duration of the per.its and the scope of "need for the plant" reviews under NEpA - are i- addressed in sections 193d. and 193f. I believe that the ten-year period toecified for site permits is a reasenable one. We need a long enougn O

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sriod cf time for the permits to be worth the resources that will be recuired to obtain them. At the same time, significant new information I can alwtys be raised and reviewed when the permit is referenced in a later construction permit applic? tion. ,

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

~ (the benefit of the NEPA cost / benefit balance) at the site permit stage is J

scrisfied ,by-a finding that there is a projected general need for additional electric power fac,ilities in the region, with decisions on the type of facility and exact timing of operation left until later. I think that this is all that can reasonably be required at this early stage in the planning process. I do think that it would be helpful to be a little more precise in the bill as to what is intended here.

Section 193e. deserves special mention,L 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

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compl eted. This seems to be a reasonable approach to removing the construc-tion permit review process from the critical path in light of the fact that

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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 could call a halt under the bill.

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2. 5 andardized Desicns i

Section 194 would authorize the Commission to acpreve 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 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. -

. The Commission has encouraged the use of standardi:ed designs for some time. Indeed the Commission'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 conce,pt-will encourage early public participajion on important design and safety .

. a. .. .

questions, focus the afforts 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' m'atter 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 ny mind whether one can ,

or should do this, in view of the fact that the review may not have been ta'1cred frem the outset for a standardized design accroval, and the public 7 b

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8-may not_have had adequate notice of NP.C 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 designs. I recognize the need for some transition period to deal with thepresentrosterofstandardizeddesigns,butthesecanbeworkedinto

-the 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.

1; Both the early site review and the standardized design provisions of the bill should enhance the predictability of the licensing process by facili-

• tating early and firm decisirns that would not be changed absent signifi-cant new information. Under both sections 193 and 194, the scope of Com-mission reviews on renewal applications would be limited to significant

..;:i. .

new information. It would not be enough that some new Folicy or review approach had 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 l on these. terms. Such a change would give an eight-year life to a design, i 1

which I regard as ample to justify its preparation and approval. I would a.lso suggest that only one , renewal on these terms be permitted 'for a site permi . This allows an effective 20-year life for a Fite permit, barring 1

significant new information. After that period of time, I would think  ;

a fairly complete review should be made on a new applica tion, if the site is :c continue to be an approved ene.

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3. Combined Construction Permits and Ocerating Licenses Section 185 would authorize the Commission to issue combined construction j l

permi s and operating licentes for thermal neutron power generation i facilities 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 De issued, and there would still be a complete ,

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

i This provision compliments the provision in section 194 on standardized designs. It recognizes that some applicants may come forward with final designs at the construction permit stage. In such cases, the bill would l allow the Commission to review and approve the final design, and avoid-the need for a complete re-review of,phe.. design at the operating license stage. The underlying principle is the sam'e 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 v.iew, this provision will be increasingly important in the future, as standard final

~

designs become available.

4. Hearinas Under section 189a. of _the bill the present distinction between ruiemaking

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and licensing in the Administrative Procedure Act (APA) is basically preserved, except that rules approving standardized designs are treated as 4

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licensing actions. With '

xception, the Ccmmission may issue rules af ter prior pt+~ ' opportunity for written comment, whereas all.

licens e.c .nses, entail at least the opportunity for a

. cant new safety issues. The present manda. tory forma

• for- teven when no person recuests one) at the construction permit

'id be replacsd by mandatory formal hearings for site permits, ,'

ized designs, and. combined ' construction pemits and operating- j sta.. '

licenses.- Also there would be substantial advance notice of any major i

1 license or standardized design applications. 'I think that, in general, the approach here is a reasonable one. However, several points deserve speciai mention.

First, the revised section calls for " hybrid" hearings on NEPA issues.

I think it is a reasonable, proposal, .ndawould bring NRC NEPA hearings more nearly in line with the hearing format' used by other agencies for these matters. Also, the " hybrid" format allows formal hearing procedures ,

such as cress-examination of sworn witnesses where factual matters are in l dispute. However, I am concerned here not only that NEPA environmental issues and other environmental issues may be difficult to distinguish, l but' also that the type of issues being litigated under NEPA and these Why other statutes do not cleaHy call for different hearing formats.

should impacts on 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.

li -

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

This concept is not a new one - it is presently apclied in a limited way in the Commission's licensing proceedings where the same parties have  ;

raised the same issues in a prior proceeding, and'in the application of

~

rules and manufacturing licenses to individual license applications.'. Some provision restricting relitigation of issues is essential if the provisions 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 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 and rulemaking process. Laws enacted by Congress and rules issued by administrative agencies are applied every day to people who were not sufficiently concerned at the time of enactment or issuance to participate in their formulation. What is importa,nt is that the process be sensibly 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 State proceedings limiting the opportunity for hearing in Commission proceedings - I would drop this particular provision in favor of the NEPA

~

delegation ~ provision in section 195.

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

This would be " standby" authority for the Commissien 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, 0

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l 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 turnec out no to signifi-cantly affect plant design or operation. I favor having this " standby"

. authority because I believe that when there is an urgent public nee'd or emer.gency the Commission should not be disabled from granting needed relief solely because some hearings need to be completed. There is a simikar 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 ne.ej .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 appar-ent emphasis on the amount of controvery 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 shcuid be - on the s

amount of additional risk, if any, to public heal:n and safety posed by the proposed amendment. If the proposed amendment does entail a signifi-cant 8dditional risk, then prior public notice ano opoortunity for hearing

.. .should and would be afforded.

5. NEPA Deleaation and the Role of the States Section 195 of the bill recognizes and enhances the important State role in the n'ee,d for power and environmental review processes. Some states now have comprehensive facility siting laws and there is an increasing state and local interest in nuclear plant siting. Subsequent to the 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 of environ-mental review by States with approved NEPA-type programs. The essential g:i.

integrity of the NEPA process would be maintained by provisions which require the States to fully comply with NEPA, have adequate resources to perform the reviews, and consent to Federal judicial review. The avail-ability of technical assistance from the National Laboratories and cash grants should help assure that State NEPA reviews are as competent and tho. rough as those performed by the Commission.

In my view there is no need'for the same environmental acceptability and need for power reviews to be performed by both the Federal Government anc the States. Given the choice of one or the other, I bow to the request

'cf the Governors' Conference that the States perform these reviews. Many

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f. Inese matters are predominantly of State or local concern, and local i citizens can reasonably expect the State to be more sensitive to their concerns than a Federal agency in Washington, D.C. Besides, the Commis- )

sion has already been deprived of the authority to condition licenses in l l

\

one critical environmental impact area - the impacts of the plant cooling EPA and the States now have this authority i

-water system on aquatic biota.

to the exclusion of the Commission under the Federal Water Pollution .

Control Act Amendments of 1972.

I do have some concern that the progrannatic turn-over and the issuance of guidelines for an approved State NEPA program will prove to be complex.

Also, I doubt that NEPA delegation to the States will do much to shorten ,

the licensing process or' simplify it - the opposite result seems more ,

t likely. However, the bill contains a worthwhile provision in subsection 195i. that will allow the Commission in any case to rely on State informa-

i. .

l ,

tion, analyses, and conclusions in the environmental acceptability and need for power areas. Of course, these would still be subject to challenge ,

in the Commission licensing hearings, and we would expect the-State person-nel involved in the review to testify and defend their work before the Commission's hearing boards.

'I t'hink that one feature of the bill needs to be clarified. Under the bill 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 NEPA compliance. There also needs to be clari#ication of how the State need for power certifications under section 155 would fit in with the NEFA delegation program.

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6. - Coordination of Reviews 4 Nuclear plants, like other large energy facilities, are subject to a myriad of Federal and 15 tate licensing and review requirements. We need to lay the necessary groundwork for better coordination with these Federal and State agencies. This is the . objective of section 196 of the bill which establishes a statutory mechanism for Federal and State coordination in the review and approval of applicatio~ns.. Ideally, all reviews could be con-solidated into one agency at. the State or Federal level, but this approach

- hardly seems practical in view of the extensive and controversial changes to existing Federal and State laws that would be' required. The approach in section 196 is a more not.'est and practical one. . The Commission would serve as a formal coordinating point for these reviews and would try to

, assure that all reviewers operated with the same dat'a base and were aware oftheprogressandimpactofeachotREN'kdecisions. Timetables would be set, but these could not interfere with any agency's statutory obligations, and the Commission could not seek to influence other agencies' decisions.

7. Intervenor Fundino Section 197 would establish a pilot program for funding intervenors in

domestic licensing and selected rulemaking proceedings. Hopefully, funding ,

would result in .intervenors' being better prepared and would shift the emphasis of intervention away from procedurai issues to the'more substantive technical issues that require expert scientific and engineering assistance to explore fruitfully. I know that there are cuestions whether funding B

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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 close watching.

8. Miscellaneous The ' bill would accomplish a number of needed and long overdue reforms besides the ones discussed above. The outdated requirement that construction permit 5 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

, on, the more novel and difficult questions. ACRS review would still ' be e:L :.

mandatory for standardized design approvals, and licenses and permits for 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 s~tatement of the role of costs 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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4 Mr. Chairman, there has been considerable discussion of the impacts of this bill on licensing delays. Ultimately, after apcroved sites and designs are available, the Administration's bill offers' at least the potential of removing practically all Commission approvals from the critical construction path if a utility decides to construct a preapproved desi.gn a t a preapproved site. Whether that potential will be fully .

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 see it, major benefits of the bill can be measured in terms of the progress made toward rationalizing the present licensing system.

As this bill moves through the legislative process, I expect there will be reasonable differences of opinion regarding its details, and valid sugges-tions will be made to improve it. In my judgment, it is important that

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3. . . .

resolution of those differences and suggestions not be allowed to block the enactment of the fundamental concepts in the bill. The basic licens-ing 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 administrative 1y 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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' * ' C0i'J4ISSIONER, U.S. NUCLEAR REGULATORY COl24ISSION -

BEFORE THE .

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SUBC0tO!ITTEE 0t[ NUCLEAR REGOLATIO!!

./ ,

.- .- 0F THE .

C0!4t!ITTEE '0N ENVIRONi4ENT AND PUBLIC WOPJ3 UNITdDSTATESSh! ATE WEDNESDAY, JUNE 28, 1978 i

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I would like to be able to support this bill, or at least not to oppose. it. A great deal of time and effort by people whose judgement I ,

respect has gone into it. Furthermore, it cc:.tains some provisions that seem to me to be useful and others that are no worse than harmless.

Under these circumstances, I would not opp,ose the overall thrust of the

. bill were it not for three provisions. The first limits the NRC's use of adjudicatory h. earings ,in m.atters arising under the M,ational, Environ-mental Policy Act; the second provides 'for extensiva constructi~on activ'ity to go forward under some circumstances without the need for the plant in

' question having been'specifically determined; the third states that issues that could have been raised in a previous proceeding may not be raised in any subsequent proceeding even if they were not raised and are therefore still unresolved. -

.e Before r.eturning to these three concerns, I want to speak about the l

context in which this legislation arises, for that context says a lot about what the bill should.contain. The proposed legislation comes from j an Administration comrnitment. to the effect that 'l Reform of,the nu'elear. i licensing process is~ clearly needed. The present process is unsatisfactory l to all participants: industry, intervenors, and the federal government. l The President . . . . has proposed that reasonable and objective criteria be established for licensing and that plants tht .:re based on a star.dar:' j 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 1 plants has declined sharply. Consequently, some suggest that the

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legislation is needed to send the industry a message of encourage 6 ant.

This does not seem to me to be a legitimate legislative function, but it is in any case amply fulfilled this year as in many others, by other specific legislation and' by the still substantial nuclear share of the federal energy lresearch and development budget.

Lastly, the legislation was shaped during a time when the licensing.

process wa's under'a clou'd resulting from a series of :urt judgements to the effect that NRC procedures were not adequate to deal with the legally required issues. That cloud has since been lif ted by the Supreme Court, so there is less need than there ever was for legislative modificatio, n of the' recent lower court decisions. ,

As the Chairman's stafement indicates, I support most of the pro-

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

important issues confronting nuclear power, but the provisions on early' siting, standardization, and intervenor funding clarify and strengthen l Commission authority in useful ways. The Commission has also indicated suNort for the delegation of NEPA responsibility though in a form different and less complicated than this bill contemplates. Ecch Con:missioner would undoubtedly assign different priorities to these cecsures, but we feel that they can be so administered as to improve nuclear licensing.

. - . - -_ . . . _ _ _ _ . . _ - _ - _ . . - _ _ _ - . _ _ - . _ _ - - . _ - - _ . _ . - _ - - - . - . - . - - - - - - . - - . - - _ _ . . . . . - - _ - - - - - . _ - - _ _ . _ - - - - . - - - _ - - - _ . - - - . - - - _ - ~ . - - _ - - - - _ _ - - - - - - - - . _ -  :

I cannot say the same for the three points that I mentioned earlier and which I will now discuss specifically.

First, Section 103 of the bill would produce a significant change in the Commission's NEPA hearings. It would provide that NEpA related issues should be heard in informal hearings, that is without such basic

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tools as discovery, subpoena powers, . cross ~ examination, or witnesses put _

Only the factual and legal ' issues that the licensing board under oath.

deems. " essential to the' outcome ~ of the proceeding" would be heard in an sdjudicatory fo'rmat'. '.Th'i's s'ection' is unfortunate fo~r.several reasons; Fi-rst, adjudicatory hearings.,.wh.ich the NRC currently. uses for all .

contested power plant licensing issues, are a better way to get an accurate assessment of complex factual issues. If they are run eff'ectively, they v!i,11 not take significantly longer than informal hearings, but they will be a much more reliable decisionmaking tool. They are more reliable because they. permit direct confrontation between the views of different parties under circumstances that allow each party a maximum of opportunity to probe the assumptions and the weaknesses of the other's position.

Informal hearings, by contrast, allow the parties to make statements that contain untested allegations and assumptions and that need not face cro bs-enmination. Within limits, this favors the witnesses who are mos t careless with the truth. In any clash of statements the chances of the fallacious ones prevailing, especially if they are sufficiently financed to be repeated by several witnesses, improve in direct proportion to the informality of the proceeding. As one of the officials who must

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4.

pass judgment based on' the records that will'ba built at these hearings, I ask'you in the strongest terms not to change the current adjudicatory *

..f o rma t.

Reliability is not, however, the only basis for my concern. The provision'does not make'all NRC power plant , licensing hearings informal.

It does so.only with respect to hearings under the sational Environmental ,

- Policy Act. Unfortunately,'.the diStinctfon bet $ teen NEPA hearings and health ahd safety hearings rests on a distinction between environmental

- jand. safety issues. .While that distincti.on has not posed' a problem in ,

NRC proceedings to date, it is...necessarily artificial, for human . health ,

is inseparable from the environment. Furthermore,.some environmental issues come before us not merely under NEPA but under other environmental laws which have compelled adjudicatory hearings for'akl contested issues.

'If a legal distinction is made between NEPA issues and all others, the question 6f'whether the correct type of hearing has been held will be a new and significant issue for th'e courts to decide, and' Congress will ,

have reopened a variant of the issue that the Supreme Court just told the lower courts to leave alone. The problem is made even more difficult by the provisions of the legislation that delegate NEPA to the states..

A ' third concern with this provision is that it will vest new respon-sibiriity and discretion in t!RC licensing boards. They will have to decide what issues arise only under tiEPA and are essential to the outcome, and they will have to evaluate and penetrate the imprecisions of.the t

' informal record. In.' vesting such increased discretion, Congress should

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- . . _ . . _ , . . - _ _._.4.- , _ - - . ~ , . . , . . . . , - . . . . . - , . . . _ . . - , , . . . , . , . . . , . . _ , . . . . . . , ..-.....,m...- _ . - .. - , . . . . - . .

- 5-consider the fact that many of our Licensing Boards are not currently held in high regard. They have some individually excellent members, but as a whole, the Licensing Boards have been strongly criticized by intervenors and industry alike. In addition, these Boards have of ten been rebuked by 'the ' Appeals Boards' that oversee their work for failing to comply with '

fundamental agency decisionmaking standards. . --

The second provision in the bill ihat seems unsound to me is th[- -

proposed Section 193(e) that ' allows extensive construction in some cases -

without a' definitive .findihg that the po6er is needed. The constructi6n may be considerably more extensive..than is contemplated by .our curient .-

Limited Work Authorization proc,edure. While. the bill provides that the costs of this construction should not prejudice subsequent decision-makiny, such prejudice is almost inevitable. It is simply not likely, . ..

that a meanginful need for power proceeding, especially one involving alternative sources., can 'take place if $100 million is already spent on

. . . . . . . . . . . .. .. . H  : . .- -

a' nuclear' plant. '. fro'ha'rdship ~resbits froa requiring"a find'i'ncj of need for the particula'r unit before construction commences. To do otherwise is to force the Commission and/or the relevant state agencies to choose between. declaring very large sums misspent or staging compromised need for power hearings.

While the law addresses this problem by sayins that the fi,7C or the state may prevent early construction, this provision is of littic use to concerned citizens if the stato and the Cor :ission should not ba inclined co take such a. step.

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The importance of a sophisticated need for pc.ar analysis is well .

illustrated by the si.tuation that has existed in I!ew England in the l.ast two or three years. Utility customers have had to support investment that has produced reserve margins of more than 40.; for some utilities.

The Connecticut public Utilities Control Authority has recently urged flortheast Utilities to cut back its commitnent to additional future capacity. .

Excess capacity produces high consumer costs of'its own, and th'ese costs are ignored in the analysis of the costs of delay that are cited

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as supporting th'is prdv'iiioni i bias" in favor of con'struct'idn first, o,uestions later. .

The third provision that I feel must be modifieiis in Section 189a(2)(c) found in Section 103 of the bill. It requires that anyone seeking to raise severaf't'ypes of issues at proceedings for constructi6n-

. . i permits or operating licenses or rene:,vals 'of pernits 'must show'that "no

opp $rtunity for hearing" on .the . issues .in ouestion existed-at r.'n earlier.' .l

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hearing or that infom'ation n$t pre'viously in existence had 'been' dis' covered.

When this Committee heard from the Department of Energy, the claim was made that this concept embodied only the well settled legal principles of res ,iudicata and collateral, estopoel and that :he ef fact o'f thi .

section would be to enco.urage early resoludon of issues. f!one of those statements is correct.

The legal printiples exist, and they are useful, but they are significantly different in normal application fer,.: this bill. Furthem,re ,

the bill as written actually encourages concealment rather than resolution ,

of many issues. What collateral estocoel and res jud.icata provide is l l

that no party may raise an issue if it has already been raised by any party and decided by the tribunal. Furthermore, current NRC practice already

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provides that a party is normaily obliged to make his contentions known

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in a timely manner or forfeit them. . This bill goes a significant step beyond these principles. It says that a person. seeking .to ra.ise an issue.

must, u.nless he shows "significant new information" likely to cause the .

facility to be in violation of the law or ?!RC regulations, somehow show that noo one could have raised the issue at a p'revi6us' h' earing.

A hypothetical example will illustrate just how unfair this provision might be. Let us say that the Public Service Commission of Arizona, to

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p'ick one at r.ando'm, follows the early siting provision and gets a site approvalini9'83. 'I'n "lE85 a 'cEizeri of 'Nbi Yor~k' moves to' Arizdna' and

,. settles, . near the .

.. site. .. ..,. -Unpeknownst. to.him, the. t RC is at that .,

- , . time, in,.

the prdcesIs' of 'ariproving's'ik dif'fePent' standard designs: In 1988, Public Service of Arizona takes one of the six standard designs and starts construction on the site. The hypothetical citizen feels that a different cooling tower would produce less fog and that the transraission

'iines still have a disastrous impact and should be carcuted. ifeither issue was raised in either of the earlier hearings, in which ha would not have been involved. Both issues could have been raised bu t, by design if you wiil, were not mentioned by the utility or uncovered by the Licensing Doard. Under conventional application of res ,iudicata and

8-collateral estopoel, these issues could still be raised. More importantly ,

they should_ be raised and resolved. Under the legislation before you, they cannot be raised, and the DOE witnesses' testimony that this extra-ordinary result stems from conventional legal principles stretches those principles past the breaking point. Furthermore, far from encouraging early resolution of issues, this provision as drafted encourages their concealment, for if they' escaped ' unnoticed at the first hearing, they -j cannot come up again in the absence of significant information not in existence at the time df the earlier hearing. The way to encourage

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early resolution of issues is to' provide th'at issues ac'tuhlly considercd-in previous' hearings may not be relitigated. Taken together with the principle that a party must raise his issues at the appropriate stage of h proceeding.or forfeit their., this different standard is needed to make

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the legislation conform t'o the testimony 'of its sponsors.

As I have said earlier, parts of this legislation are desirable.

Intervenor funding in particular is necessary to a full presentation of the. issues in scme proceedings. To those w' 3 scy the i t this propasel l favors some "special interests groups" andetheir views in i;RC proceedings, I would point out that our research progran, not to mention DOE's routinely contracts for millions of dollars of work that applicants can use directly in their license applications. Indeed, some of this money ,

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• Soes directly to the reactor endors and architect engineers who will use it in standard design applications. If funding "special interest groups" to help their participation in the licensing process contravenes the intent of Congress, this research needs to be reviewed and redirected.

A Committed as I am to intervenor funding and however much potential I may see in early siting and standardization, the Commission can move .

in these directions on its own, albeit not as clearly as this legislation J contemplates. Nevertheless, I wou'Id urge 'that the Congress not enact these gains if it meant accepting the limits on public participation  ;

discussed above. Those limitations only make sense if one accepts i l

the view that nuclear power's troubles flow from misguided citizen groups asking too many questions. No.. responsible. study supports this- . . l

,p ropo'sition, and several studies rebut it.

In short, the abridgements on public participation contemplated by

. this bill are part of a. ". love it or lose it" attitude toward. which som.e .

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industries, especially energy industries, are inclined as part of efforts 1

to blame their .trcubles on their critics. '!ithout detracting from the l

l contribution that I hope nuclear power can continue to make toward

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meeting the world's. real energy needs, I would suggest that the ind'ustry's )

troubles come mostly from a different direction - a direction that this .

bill does not address.

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Much[of the problem lies with the cc=itments, pressures and expecta .

- tions spawned by the grave overestimates of nuclear needs and possibilities that once emanated from the AEC and from ERDA. As bureaucratic and ,

institutional prestige became ~ committed, one almost rational step at a time, to stated and perceived national goals that had very li,ttle to do.

with real national interests, truth and other people's money were the .

first casualties. The truth took, a beating in silenced concerns and rigged or suppressed studies. Conclusions were expressed in assurances 1

of safety so absolute that the industry and the Commission can now be , . .

embarassed into shutdowns by occasional showings that asseEtedly impossible accident sequences are merely very highly improbable. Massive financial commitments were made by utility ratepayers and by ta'xpayers to a nuclear future clearly in excess of anything that the nation really needed within the time it was to be proyided. . Alternatives,, including some nuclear-alternatives, were given short shrift. As criticism grew, those who j participated in the initial misjudgements behaved as though open5inded reevaluations would be admissions of previous errors. Instead they blamed nuclear power's troubles on delays and losses of confidence caused by its critics, whose patriotism and integrity and allegiance to he herican drean were subtly or not so-subtiy callrl ir7c qu?stica. .;

If one is to understand the ways in which large governmental entities can 'oeccme over-committed to casual and ultimately self-justifying definitions of national viell-being, our energy past is important both as a map and as a warning. The limitations on hearing, and issues in this m_m.m_m._m_ _ . - . -.__._____m_____.._____._._.________.________.__m._ -

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o l legislation can be described as an extension of that past - a desire to ,

avoid real issues that is based on an ill-info-ed exaggeration of dimly perceived dangers. The savings in time ascribable to the hybrid NEPA

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hearings, the omitted need-for-power determinaticn, and the limitations' l

on raising new is.su.es are negligible. 'he losses in reliability of the l

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hearing process are large. These proposals may offer solace of a sort to those present DDE officials who were frustrated at the AEC by t! EPA, .

by intervenors and by the courts during nuclear power's happier hours five years ago.

They have no other logic. They can do very little good and may do considerable harm. Neither this Committee nor the Congress should endorse them in anythi'.) like their present form.

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