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Fifty Years of Laying Down the Law on Things Nuclear

Roy Hawkens
Chief Administrative Judge
ASLB Panel
 

Fifty years ago, the U.S. was performing its first nuclear test at the Nevada Test Site, the Beach Boys introduced “surfin’ ” music, and three prisoners supposedly became the first and last to ever successfully escape from the prison on Alcatraz. And the first Atomic Safety and Licensing Board (ASLB) was created, and presided over a hearing on a proposed new nuclear reactor.

ASLBs independently review the NRC’s actions to ensure they follow not only U.S. law, including the Atomic Energy Act and the National Environmental Policy Act, but also existing agency regulations and past precedent. A Board’s rulings can make the NRC staff reconsider technical and legal conclusions they may have reached on a matter, and can even mean denial of license applications or amendments. Board decisions, though, can be appealed to the five-member Commission.

ALSB Panel Chief Administrative Judge Roy Hawkens (center) discusses Board business with ASLB Panel Associate Chief Administrative Judge Paul Ryerson (left) and ASLB Judge Alex Karlin in the Board’s Hearing Facility at NRC Headquarters.

ALSB Panel Chief Administrative Judge Roy Hawkens (center) discusses Board business with ASLB Panel Associate Chief Administrative Judge Paul Ryerson (left) and ASLB Judge Alex Karlin in the Board’s Hearing Facility at NRC Headquarters.

The original Atomic Energy Act in 1954 called for a single, legally-trained “hearing examiner” – today we’d say “administrative law judge” – to preside over legal and technical challenges to nuclear licensing and regulation. Later, when Congress amended the law in August 1962, the NRC’s predecessor agency was able to use, instead, an approach that more appropriately addressed the relevant legal, scientific and regulatory issues — three-member Atomic Safety and Licensing Boards that included one or more judges with scientific expertise.

The revised law’s section 191 generally calls for a Board to have two technical members and a chairman “qualified in the conduct of administrative proceedings,” a legislative term-of-art for “lawyer.” The Atomic Energy Commission initially staffed these Licensing Boards using a pool of four attorneys (three of whom were already hearing examiners) and 11 technical specialists in areas including physics, nuclear engineering and nuclear chemistry.

The Board approach was put into practice in November 1962, for the Power Reactor Development Corp. case involving the Michigan-based Fermi I reactor. A week later the AEC appointed another Board to handle an uncontested construction permit case for a proposed Babcock and Wilcox test reactor near Lynchburg, Va. The Babcock and Wilcox Board conducted the first ASLB evidentiary hearing in Lynchburg on Dec. 10, 1962, and issued the first Board initial decision on Jan. 14, 1963.

In April 1967, the AEC created a process by which individuals from a panel of judges are assigned to particular Boards. Today’s NRC refers cases to the ASLB Panel’s chairman, who selects judges from among the Commission-appointed pool of full-time and part-time members. All told, between November 1962 and today, these special judges have presided over some 900 cases, covering not only issuing and renewing nuclear power reactors licenses, but also nuclear fuel cycle issues such as uranium enrichment.

The Boards’ work also examines licensing various medical, academic, and industrial uses of nuclear materials, as well as high and low-level nuclear waste disposal facilities (such as dry cask spent fuel storage); reactor and materials site decommissioning; and cases involving enforcement orders and civil penalties.

As ASLBs have presided over all these cases, the Panel’s pool of experts has expanded beyond law, nuclear engineering, and physics. Over the years, Board members have had expertise in such disciplines as health physics, medicine, chemistry, marine and land biology, ecology and environmental science, oceanography, geology and geophysics, economics, and mechanical, civil, sanitary, and environmental engineering. The five-member NRC Commission appoints both the full-time and part-time Panel members for their technical and legal expertise.

16 responses to “Fifty Years of Laying Down the Law on Things Nuclear

  1. Tommy Lonn Attorney Columbus Ohio February 28, 2014 at 9:02 am

    It is a very interesting article. This aspect is very important. The problems of nuclear things are not of neglected.

  2. HingeThunder November 22, 2013 at 2:11 pm

    If Diablo Canyon is “a (sic) old clunker”, then things like Hoover Dam, Geyers Geothermal Plant, and Grand Coulee are ancient, ancient clunkers, because Diablo Canyon is newer than any of these. If being “a (sic) old clunker” is a concern to you, you’d be better off going after these other much more ancient “clunkers”, which are much more dangerous to boot.

  3. CaptD November 22, 2013 at 12:57 pm

    What is missing from this article is how regular people from outside the NRC can gain access to the ASLB and even more important, what determines the cases that the ASLB will accept, since “atomic” safety is such an important topic for not only all the people living near “atomic” locations but for the entire USA, since we can ill afford even one Fukushima type Trillion Dollar Eco-Disaster, since the Price Anderson Act maxes out at only about 12 Billion Dollars!

    • stock November 22, 2013 at 2:21 pm

      Great comment
      Privatize the profit, socialize the risks.
      Typical Economic Hitman Move

    • Moderator November 22, 2013 at 3:48 pm

      If the NRC is considering a significant licensing action, the agency will announce an opportunity for individuals or groups to intervene, or offer legal challenges to the proposed action. The ASLB will examine requests to intervene to determine two things:

      Could the licensing action affect the individual or group in a way that creates a legal right to participate; and
      Does the request include a challenge that the ASLB has the authority to rule on?

      If the answer to both parts is yes, then the ASLB will consider the challenge, up to and including a full hearing.

      Scott Burnell

  4. team4n10 November 22, 2013 at 4:57 am

    The Board needs to take another look at Diablo Canyon in CA. By decreasing regulations for them regarding earthquake safety, they must be in violation of laws on the books somewhere. Diablo sets on several earthquake faults along the Pacific Rim.

  5. stock November 20, 2013 at 10:44 am

    Whenever you have lawyer running a project, you can expect really large problems, and coverups.

  6. earthnskystudio November 20, 2013 at 10:14 am

    The Board needs to take another look at Diablo Canyon in CA. By decreasing regulations for them regarding earthquake safety, they must be in violation of laws on the books somewhere. Diablo sets on several earthquake faults along the Pacific Rim. In light of Fukushima’s dire ongoing problems, it’s very questionable why the NRC would give them a “pass” regarding normal seismic regulations that other nuclear plants around the country must uphold. PG&E stated to the CA Coastal Commission during last year’s seismic testing battle that they will not upgrade upgrade, even if seismic tests were to show they need to. So what conclusion can we come to other than the NRC has decreased the earthquake regulations on safety for them? It’s time to shut down Diablo Canyon completely.

    • hiddencamper November 20, 2013 at 11:35 pm

      It’s time to keep Diablo Canyon open. They are actively looking to get all the data they need to prove their seismic and structural capabilities are sufficient, and they have already been designed for standards far in excess of what they were required to withstand in terms of earthquake forces. They produce cost efficient, no emissions power, that is reliable and on 24/7. Diablo Canyon provides hundreds of high paying, high skill jobs, which are valuable to middle class workers. Unlike other sources of power, a large percentage of the cost for Diablo Canyon’s energy goes to their workers,which in turn stimulate the local economy. Diablo Canyon pays millions in taxes, is a responsible operator, and should remain in service. I have never once seen that they are trying to avoid anything seismic, they are actually trying to go out of their way and do additional seismic studies to prove their capability, and anti-nuclear groups are attempting to stop them from this.

      Keep Diablo Canyon Going Strong!

      • stock November 21, 2013 at 12:44 pm

        yeah thats funny….create the data you need to justify the profits from running a old clunker in a dangerous location.

    • hiddencamper November 21, 2013 at 6:00 pm

      So………..when people say the plant isn’t safe, and they try to prove it is, before they even collected data you say they are tampering the data? Please provide evidence that they are planning to tamper with the data to “justify” profits.

      The plant is safe, it meets all of its requirements, its not an old clunker at all, it was brought online in 85, it’s not even 30 years old. And the location is dangerous why? Earthquakes are only dangerous if you don’t design for them. They did.

      • Diane Smith November 22, 2013 at 2:22 pm

        The plant sits on several earthquake faults, one of which runs right under a reactor. No one can predict with any certainty the magnitude of an earthquake along the Pacific Rim. PGE admitted to the CA Coastal Commission last year that should seismic testing show more retrofitting needs to be done, they are not planning to put the money into it.

      • stock November 22, 2013 at 4:29 pm

        I think the testing should be done, and then a logical decision can be made to shut it down or invest the money.

      • Diane Smith November 25, 2013 at 6:57 pm

        We ratepayers have already been tagged for $64 million for Diablo Canyon’s seismic testing & should be refunded for it since the CA Coastal Commission denied their request Nov. 2012. No seismic testing. No relicensing. Why drag out a slow death?

      • hiddencamper November 23, 2013 at 8:01 pm

        Well then it sounds like you have nothing to worry about if they were to perform their seismic studies. The plant will either be determined to be safe, or they wont pay to fix it and it will likely get shut down.

        Sitting on a fault line doesn’t make a plant safe. It means you have to design for stronger earthquakes. The law of the land is that your plant must be capable of withstanding the worst environmental hazards your plant could be hit with. As long as their plant can do that, then it is safe, regardless of any other opinions out there. This logically makes sense, if it can withstand an earthquake, then it is safe against earthquakes.

        If Diablo does their seismic studies and finds they aren’t designed for the hazards, then they will have to fix it or likely take the plant offline. In either of those two cases the plant is put into a safe place.

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