Today, the NRC published for comment in the Federal Register proposed procedures for the conduct of hearings that would be held at the end of construction of a nuclear power plant and prior to the NRC’s final authorization for operation. The late-stage hearing opportunity will be a key administrative process in which the NRC will be challenged to allow public participation while still reaching a timely decision. The NRC hearing process has frequently been cited by the nuclear industry as fraught with potential for regulatory delay. But in this case, the Atomic Energy Act provides for the NRC to complete the process in as little as 180 days.

NRC regulations allow stakeholders to raise issues on whether objective acceptance criteria – part of the inspections, tests, analyses, and acceptance criteria (ITAAC) included in a nuclear power plant’s combined operating license – have been met. ITAAC are used to ensure that, prior to operation, a facility has been constructed and will operate according to all applicable requirements. A facility cannot operate until the NRC finds that the ITAAC acceptance criteria have been met. The opportunity to request a hearing will be included in a Notice of Intended Operation, which the NRC plans to issue 210 days before scheduled fuel load (the NRC is statutorily required to issue this Notice at least 180 days before fuel load). To obtain a hearing, a petitioner must make a prima facie showing that one or more of the ITAAC have not been or will not be met. By design, this is not an opportunity to raise other issues about the design and operation of the plant, or even about the sufficiency of the ITAAC. Those are issues that must be raised much earlier during plant licensing or design certification.

The proposed hearing procedures address important issues, such as schedules, discovery, and the prospect of a Commission decision to allow interim operation pending completion of a hearing on ITAAC issues. Notably, the NRC is considering two separate hearing schedules: one that allows for both pre-filed and rebuttal testimony, and one that allows only for pre-filed testimony. In either case, the proposed schedule contains a “strict deadline” for a decision within 30 days after the hearing. The timeframes in the proposed procedures are necessarily tighter than typical NRC adjudicatory hearings, due to the statutory timeframe.   

The efficacy of the ITAAC hearing process will directly impact the timeliness of agency action, since these hearings will be on critical path (at least unless the Commission allows interim operation). The development of these procedures is an opportunity for re-thinking administrative processes that have been largely unchanged in decades. The NRC intends to hold a public meeting on the proposed procedures on May 21, 2014, and is accepting comments until July 2, 2014. The staff will consider the comments received on the proposed procedures before submitting a proposal for the Commission’s approval. The Commission has directed that the ITAAC hearing procedures be resolved by January 2015.