issue resolution and reduce the delay risk posed by pre operational hearings. The sum total of these reforms would be to limit preoperational hearing issues to those matters which could not have been considered in antecedent site permit, design certification or combined license proceedings, to expedite the process of issue resolution in any preoperational hearing that is held, and to remove the preoperational hearing from the "critical path" of facility operation where the Commission determines there is no threat to public health and safety. In my opinion, and consistent with the industry views quoted earlier, these measures would substantially enhance utility and financial market confidence in the nuclear power plant licensing process. Question "Other than the preoperational hearing and the critical path issue, which of the changes you suggest would require legislation?" ANSWER In my judgment, the only change requiring legislation is that which would authorize the Commission to permit facility operation notwithstanding the pendency of a requested hearing. As respects the other recommended changes, I believe that legislation is highly desirable. While the Commission, in my view, has authority under current law to confine preoperational -6 hearings to matters of license conformance, this issue is presently being litigated in the U.S. Court of Appeals for the District of Columbia Circuit; legislation would definitively resolve the matter. As respects Commission authority to utilize informal procedures for the preoperational hearing, I believe the Commission already possesses this authority. The Commission, however, has not been disposed to exercise that authority for reactor licensing because of what it believes to be an unclear legislative mandate, coupled with an historical practice of reactor licensing proceedings utilizing trial-type procedures. I would observe, in this connection, that the Court of Appeals for the District of Columbia Circuit has recently noted that the Commission's authority to use other than trial-type procedures for reactor licensing is still an "open" question as far as that court is concerned (UCS v. NRC, No. 89-1617, U.S. Court of Appeals for the District of Columbia Circuit, November 30, 1990, slip op. p.6). Given this background, and the desirability of Commission flexibility to tailor hearing procedures to the issues before it for resolution, legislative confirmation of the Commission's authority to employ informal procedures would be highly desirable. Additional Request "One of the other witnesses, Mr. Glitzenstein, has stated that the provision on licensing in S. 341 precludes public input into the licensing process. Please state with specificity your view as to the public participation RESPONSE In my view, the licensing process of which Title XIII would become a part (i.e., a process which adds the Title XIII preoperational hearing provisions to the Part 52 processes for early site approvals, design certifications and combined licenses) substantially enhances meaningful public participation in nuclear power plant licensing. In contrast to the flawed means for public participation inherent in the old "design-as-you-go" licensing process, Part 52 provides four distinct stages at which the public is afforded timely opportunity to participate meaningfully. First, hearing rights are provided regarding an application for an early site permit. Part 52 treats an early site permit as a partial construction permit and therefore requires a public hearing. Second, the public has a right in a design certification rulemaking to participate both in the notice and comment procedures and in the informal hearing before a Commission licensing board. Additional procedures, including formal hearings, also may be utilized in the rulemaking. Third, at the combined license stage, Part 52 provides for a hearing before construction begins one governed by the same procedures used in current Fourth, Part 52 provides an opportunity for hearing prior to commencement of plant operation where there is a substantiated allegation that one or more of the acceptance criteria contained in the combined license have not been met and that, as a result, there is good cause to prohibit or modify operation. Title XIII of S. 341 does not alter these rights of public participation; indeed, it would confirm the Commission's authority to provide the preoperational hearing opportunity described above. What Title III would do, and what Part 52 seeks to do, is to limit the opportunity for a hearing as a matter of right to those issues that have not previously been resolved in the licensing process. Neither S. 341 nor Part 52 preclude an interested party from seeking and the Commission from convening a hearing to consider significant new information where the Commission deems this appropriate in light of its regulatory responsibilities. In my testimony, I took note of the array of procedures provided by the Commission's regulations for the consideration of significant new information after a combined license has been issued. First, and foremost, Part 52 provides an expedited process for modifying the terms of a combined license in response to petitions that could be filed under 10 CFR §2.206, which could be based on new information or developments. Part 52 obligates the Commissioners themselves, rather than the NRC staff, to consider such petitions and to determine whether any immediate action is required before commencement of facility operation. In addition, new information relating to design safety can be raised by a rulemaking petition. And, finally, an interested party can seek a waiver from the Commission, on the basis of new information, to avoid the preclusive effect on issues resolved in a design certification rule. In each case, a Commission determination adverse to the petitioner would be subject to judicial review. no way impinges on these Commission mechanisms for considering significant new information and on any hearings that might result therefrom. In short, Title XIII leaves intact the current NRC authority to take action to modify a combined license when this is necessitated by events subsequent to combined license issuance. and of Title XIII is The central premise of Part 52 that definitive NRC decisions on design and site issues should be made on the basis of essentially complete industry submissions, and with full public input, before nuclear power plant construction begins. The new licensing process is, thus, a vast improvement on the process for public participation that has hitherto applied for nuclear power plant licensing. |