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.

Commission Sets Path Forward on Yucca Mountain

Dave McIntyre
Public Affairs Officer
 

The Commission today directed the NRC staff to finish the safety evaluation report (SER) for the Department of Energy’s Yucca Mountain construction authorization application. This direction is the agency’s response to the U.S. Court of Appeals for the District of Columbia Circuit, which in August ordered us to resume work on the application using approximately $11 million in unspent money from the Nuclear Waste Fund.

yucca 2The Commission reached this decision after obtaining views from numerous parties involved in the licensing process as to how it should proceed.

By way of background, Yucca Mountain is the proposed repository for spent nuclear fuel and high-level nuclear waste, a site selected by DOE at the direction of Congress. DOE submitted its license application in June 2008, but two years later withdrew it after the Obama administration decided not to pursue the project.

The NRC closed out its unfinished review of the Yucca Mountain application during Fiscal Year 2011. But a lot has happened since then, so it’s important to clarify what today’s action does and does not do.

The Order issued by the Commission today DOES:

• Direct the staff to complete and issue the SER left incomplete when the Yucca Mountain review was closed out;

• Direct the NRC Secretary and other agency staff to enter thousands of documents from the old Licensing Support Network (LSN) into the NRC’s ADAMS documents database so they will be available to the staff and eventually, assuming the availability of funding, to the public;

• Ask the Department of Energy to complete a supplement to its environmental impact statement on Yucca Mountain as the NRC staff found to be necessary back in 2008.

The Order DOES NOT:

• Direct the staff to reconstitute the LSN, which was dismantled in FY 2011;

• Restart the adjudicatory hearing on the application, which remains suspended;

• Signal that a licensing decision is imminent. Before a final licensing decision can be made, the adjudicatory hearing must be completed, and the Commission must perform its own review.

The Commission said it would consider the future of the LSN and the adjudicatory hearing once the tasks it directed today are completed and it can determine what tasks it can perform with whatever funds remain. The agency can only use money Congress has appropriated from the Nuclear Waste Fund for activities related to Yucca Mountain.

The SER is the key technical document of the NRC’s review of the Yucca Mountain application. It was to be published in five volumes: Volume 1, essentially the introduction, was published in August 2010. Subsequent volumes were not completed before the review was shut down – they were eventually published as “technical evaluation reports,” which are less formal documents that don’t contain regulatory conclusions about the proposed repository.

Although a finished SER would contain those conclusions, it will not be equivalent to a licensing decision, as discussed above.