ratepayers. In sum, the legislation proposed by the Commission to "reform" its licensing process appears either to "codify" the status quo or to impose additional requirements, especially in the area of notice.

This view will deal only with the three issues which most concern me. My principal concern with this legislation is its provision of a second hearing opportunity when that hearing is not required to protect public safety. This additional hearing opportunity would come at a time when the only tasks remaining to be accomplished are (1) verification of the plant's design and (2) inspection and testing of the plant to insure that it has been built in compliance with the application. To provide a hearing opportunity after the plant is constructed introduces regulatory uncertainty and inefficiency into an already cumbersome process.

Additionally, the provision of a second hearing only one year prior to operation could result in the hearing actually delaying plant operation, a phenomenon which arguably has not yet happened. Presently, the prehearing stage of an adjudicatory operating license hearing begins several years in advance of facility operation because it is triggered by submission of an operating license application. Under the legislation proposed by the Commission, the preoperational hearing is triggered by plant operation. The informal phase of a hybrid hearing is generally equivalent to the prehearing stage of an adjudicatory hearing. Both the informal phase of a hybrid hearing and the prehearing stage of an adjudicatory hearing include, among other things, admission of parties, admission of contentions, discovery, and prehearing conferences to narrow issues. The Commission's experience with these types of activities shows that they generally require more than one year to complete. I know of no reason to expect these activities to take less time in the preoperational hearing merely because they are part of the informal phase of a hybrid hearing.

Moreover, as a general matter, the issues of emergency planning and quality assurance are among the most time-consuming issues presently. litigated in operating license proceedings. Thus, the preoperational hearing presents a potential for delay greater than that extant in the present licensing process. As a practical matter, the only way around this potential delay will be a request by applicants that the Staff notice the opportunity for a hearing several years in advance of operation. There is some irony in the thought that applicants would have to request the hearing process be initiated in order to avoid delay!

Finally, I have a philosophical problem with the Commission's decision to provide a second hearing opportunity. The Commission's decision rests on two assumptions--first, that factual disputes should be resolved in adjudicatory hearings be they hybrid or formal and second, that inquiries into safety issues should be handled by trial-type procedures. Under present Commission rules, if a member of the public is aware of a safety problem, that person may come to the Commission and request an investigation. Furthermore, that person may request a hearing. If the Commission decides that there is a safety issue which should be resolved by trial-type procedures, the Commission can grant a hearing. Thus, the opportunity for a hearing already exists; a hearing will be provided if the Commission determines that the safety issue in question is best resolved through that mechanism. What I object to is the requirement to provide an adjudicatory hearing, whether it be hybrid or formal, after every plant is constructed. In that context, it is important to remember that the paramount responsibility of the NRC is not the provision of trial-type forums in which members of the public can attempt to explore their concerns about nuclear power plants. Rather, the NRC's paramount responsibility is to protect the public health and safety. Resolution of technical issues in order to protect

the public health and safety is the province of the Commission's highly paid and highly trained scientific and technical staffs.

A second problem with this legislation is its implicit assumption that hytrid hearings will be a more efficient vehicle for the resolution of disputed safety and environmental issues and thus that explicit authority to conduct such hearings will constitute regulatory reform. There are many arguments that one can make to dispute this assumption but I will merely quote from the views of Tony Roisman, an attorney on the Ad Hoc Group on Regulatory Reform Proposals and formerly an intervenor in many Commission licensing proceedings:

[W]e all realize it is really a dog fight down there in the
hearing between people who are unalterably opposed to each
other. We are not just talking about the kinds of issues
where one can say, well, I can see the other guy's side, but
I would sure like to have a crack at making my point. You
are dealing with people who are really going to the mat.
There is a lot of contentiousness.

What troubles me about the hybrid hearing--and I had a small
contact with it during the time I worked on the GESMO
hearings, when they were in existence, is it looks like they
create more places for that inherent contentiousness to find
outlet in irrelevant issues. If two people are disagreed as
to whether a particular emergency plan for a plant is going
to be adequate, one says it is inherently inadequate, you
should never license the plant; the other says it is per-
fectly good, we can put it here, what you would like to not
have happen is for them to spend any significant time
arguing about peripheral issues, about whether they are
going to argue about that issue. You would like them to get
in there and argue about that issue.

The hybrid hearing invites first, a legislative type hearing.
All right, we have already taken a lot of time on a legisla-
tive type hearing. Then a series of hearings on which of
the legislatively presented points of view deserve the next
step. The next step, as it was in GESMO, just might be
discovery. I have got to see some more information, how did
you reach that conclusion, Doctor? We now have discovery.

Now we have another set of hearings on how many of the next
set of issues deserve to move to the next plateau, the next
plateau being we are going to have some cross examination.
And each of those decisions is a point of contention. Each
one is one on which the parties spend a lot of time fighting.
Each is subject to review by a court. And from the stand-
point of the Agency, and again, from the standpoint of

stability, the one kind of decisions which this agency has
uniformly been successful in deciding, in not getting review
of substantive issues, every judge, no matter how nastily
they may have written about the Commission at any time, you
ask them to decide whether it should be pump A or pump R,
and they say that is agency expertise. What they will
review is your decision to keep an issue in, put an issue
out.

And it seems to me that the hybrid hearing will create a new
era of litigation unparalleled in this Agency that will
cause more turmoil and confusion--and remember, I speak now
from the perspective of a former intervenor counsel, that
every time the Commission steps in the wrong procedural
hole, it is like creating a little time bomb. It is ticking.
It ticks along going through a whole hearing, having stepped
in the wrong hole, and you don't find out that it was the
wrong hole until three years later, or in the case of
nuclear waste, ten years later, and then all of a sudden,
boom, the thing explodes and hundreds of hours of hearing
time, thousands, are down the tube.

The third problem I have with the legislation proposed by the Commission concerns its failure to address the problem of backfitting. The Commission spent a good deal of time debating what standard should be used to allow relitigation of an issue previously decided in a proceeding. The Commission settled on the following standard:

The Commission shall not modify any final determination on
an issue that has been considered and decided in any pro-
ceeding... unless the proponent of the request for such
action makes a substantial evidentiary showing . . . that
such action is required to comply with this Act, other
provisions of Federal law, or the Commission's regulations.

Regardless of how difficult making that showing might appear, in reality,
the proponent of modification of a prior Commission determination need
only show that the Commission has promulgated new requirements. Until
the Commission promulgates a backfit regulation which would control the
application of new requirements to reactors which have received a
license and been constructed in accordance with that license, any final
determination made in a proceeding can be relitigated by a showing that
the Commission has promulgated new requirements related to that deter-

mination.

Attachment 3

Commissioner Asselstine adds: On the subject of nuclear powerplant licensing reform, I continue to believe that legislation would be helpful in developing the necessary regulatory framework for the ongoing efforts of several reactor manufacturers to develop more complete standardized plant designs. The recent experience with the construction of the St. Lucie 2 plant in Florida and the three-unit Palo Verde plant in Arizona, which both represent a form of standardization, indicates that the use of more standardized plant designs can have significant benefits in assuring that plants are constructed properly and within realistic cost and schedule estimates. Some provisions of the NRC and DOE legislative proposals that are less directly related to the use of standardized designs, such as backfitting restrictions, the elimination of certain hearing rights, modifications to adjudicatory hearing procedures, limitations on the role of licensing hearings and attempts to define safety-cost trade-offs, have proven to be controversial. At the same time, there appears to be more of a consensus in favor of other provisions more directly supportive of standardization, such as the authority to issue site permits, standardized design approvals and combined construction permits and operating licenses, together with provisions to assure an opportunity for a hearing on each safety, security and environmental issue at the earliest possible stage in the licensing process.

Given the potential for consensus on these elements and their benefits in encouraging further standardization, I would suggest that the Congress consider a more limited bill that focuses on the provisions most directly related to the standardization concept.