Rethinking Uncontested Mandatory Hearings at the Nuclear Regulatory Commission

The Atomic Energy Act requires the NRC to hold mandatory hearings on certain licensing activities. At the hearing the NRC staff present evidence and recommendations for licensing that are contained in formal evaluations completed months prior. These hearings are currently required regardless of whether those licensing actions are contested or uncontested. However, the Act does not prescribe the procedures by which these hearings need to happen. The NRC has selected a rigidly formal structure.

Last July, the NRC’s most senior Staff member, former Executive Director For Operations (EDO) Dan Dorman, spoke about this process in a hearing. When asked if a formal mandatory hearing process for uncontested actions was “necessary for the safety of the operation of that licensee, or the person that has come before you,” Mr. Dorman said, “I don't believe it is.”

That statement is supported by the data. Hearings are held months after the NRC Staff has already evaluated the application and made a determination, and the application has separately been reviewed by the Advisory Committee on Reactor Safeguards. Hearings delay licensing actions by 4-7 months and have not resulted in different findings from the report issued by the NRC Staff. Columbia University released a detailed report about the process, discussing its origins, current implementation, and previous proposals for its removal.

Uncontested hearings increase NRC Staff hours by 5-15% beyond the safety and environmental review.

Figure 2 shows the added NRC staff hours to support a mandatory hearing relative to total review hours across the range of NRC projected resource scenarios and historical values. (Scenarios provided in supplementary data).

The most recent uncontested mandatory hearing was on the Construction Permit Application for Kairos’s Hermes 1. The NRC estimated that it would take about 1,500 NRC staff hours to prepare for the hearing. For reference, the estimate for the entire application review was 18,000 NRC staff hours. This means that preparation for the uncontested hearing added nearly 10% more NRC hours to the process. That is a lot of time for something that is uncontested and not expected to improve public safety or protect the environment, and this is not an outlier. In 2007, an NRC task force issued a report that found that supporting the three early site permit proceedings required staff resources that “have ranged from approximately 2000 to 3000 hours for each proceeding.” That is equal to $642,000-963,000 at the current NRC hourly rate of $321. The NRC estimates 6,000–6,750 NRC staff hours for future Combined Operating License mandatory hearings, equivalent to approximately $2 million in NRC fees. The NRC recently completed an analysis of resources required for a mandatory hearing but did not make the information publicly available.

A large number of NRC staff are involved in the hearing process. However, the collective staff time can be combined to provide a simplified context. Based on the above NRC values, hearings for early site permits will require the equivalent effort of 1-2 people working for an entire year, while combined operating licenses will take 3-4 person-years of resources. That is a significant investment of NRC staff resources that could be applied to more mission-critical activities. It is reasonable to expect that the applicant will have to invest an equivalent amount into preparation for the hearing.

NRC Action

The 2007 NRC task force report recommended that “the Commission request legislative authority from Congress to eliminate the statutory requirement for a mandatory hearing (i.e., a hearing on uncontested issues) from Section 189a. of the Atomic Energy Act.” The report stated that circumstances have changed since that hearing requirement was written — the NRC is not tasked with promoting nuclear energy unlike its predecessor, the Atomic Energy Commission, and there are a variety of other statutes that shed light on the regulatory process, like the Freedom of Information Act and the National Environmental Policy Act. Such changes make the mandatory hearing process superfluous.

In February, NRC Chair Hanson tasked the NRC’s general counsel with providing options for “revisiting the mandatory hearing process.” The Office of the General Counsel (OGC) responded on April 12th, providing 5 options for reform. Ultimately, the OGC recommended that the hearings be based on written submissions rather than a formal hearing process. They also recommended that the Commission preside over these written hearings for “first-of-a-kind” reactors and delegate hearings for “nth-of-a-kind” reactors to the EDO.

This is a step in the right direction. Using a written hearing process has the potential to reduce the time required for the process.

However, there remains a concern about the implementation of the recommended streamlined procedures. One concern stems from this quote, near the end of the memo:

“[w]ith this consideration in mind, OGC recommends that the Commission retain the presiding officer function for mandatory hearings under AEA § 189a. on a first-of-a-kind technology or for the first facility at a particular site, using the written-hearing process described as Option 1 Above.” [Emphasis added].

It is unlikely that projects will frequently meet the criteria of being both an 'n-th of a kind' technology and being placed on a site with an existing facility. The NRC expected each module to be licensed individually in 201. However, almost every developer at some stage of the application process intends to build multi-reactor facilities. More recently, the NRC staff have indicated via their draft for a new licensing framework, 10 CFR 53.1103, that they would allow multiple reactors to be built on a single site with a single application instead of an application for each reactor. This would mean that if a developer intended to put multiple reactors on a site as a “pack,” they would only submit a single license or permit application, and only have one mandatory hearing, if approved. As such, it would seem to us that most new applications wouldn’t check both boxes, an approved design on an already in-use site, which means the Commission would still be presiding over the vast majority of mandatory uncontested hearings.

Needed Congressional Action

Uncontested mandatory hearings, by their very nature, presuppose a lack of dispute among the involved parties. Yet, despite this apparent consensus, the rigidity of formal procedures often imposes unnecessary burdens, contributing to bureaucratic inertia and impeding innovation and the efficient resolution of regulatory matters. Although the NRC is possibly moving in the direction of streamlining the process, the agency identified several times that the onus is on Congress to properly remove this requirement.

There are two bills before Congress, one in the House and one in the Senate, that amend the Atomic Energy Act to address the uncontested mandatory hearing requirement. The bills give the NRC the flexibility to take regulatory action without a hearing in the absence of a request for one. A hearing could still be held if the NRC finds a need. These bills are an important step that allows the NRC to move forward without unnecessary and duplicative work.

Conclusion

It is imperative to reevaluate the role of uncontested mandatory hearings in licensing actions at the NRC. Instead of reflexively adhering to established protocols, regulatory authorities should strive to adopt more flexible and pragmatic approaches. The NRC seems to be moving in the right direction, but Congressional action remains necessary to truly eliminate this unnecessary requirement. By embracing a more agile approach to regulatory oversight, we can foster a culture of responsiveness and collaboration that truly serves the best interests of the public.

Supplementary Data:

Figure 2