NRC Proposed Rule Seeks to Streamline and Accelerate Adjudicatory Proceedings

Although the proposed revisions do not materially alter the NRC’s requirements for demonstrating standing and contention admissibility, they do significantly alter the time frames for submitting hearing requests and contentions, ruling on contentions, and conducting evidentiary hearings. They also propose the use of tailored time frames for different types of licensing proceedings.

Below is an overview of the major proposed revisions. We are continuing to evaluate the proposed rulemaking. Please contact the Pillsbury team for more information on the proposed rule.

The ADVANCE Act and EO 14300
This proposed rulemaking is prompted by requirements in the ADVANCE Act and EO 14300.

Relevant here, the ADVANCE Act directs that, for certain NRC license applications, NRC staff reviews are to be completed within 18 months after license application docketing, any necessary hearings are to be completed within two years of docketing, and a final decision on issuance of the license issued no later than 25 months after docketing.

EO 14300 further compresses the ADVANCE Act timelines for certain proceedings. Specifically, it directs an 18-month deadline for a final decision on an application to construct and operate a new nuclear reactor and a one-year deadline for a final decision on a reactor license renewal.

To address these commands, the NRC proposes a series of changes to its rules that would accelerate the scheduling of adjudications and tailor the schedules based on the type of licensing proceeding; bifurcate filings and decisions on standing and contention admissibility for certain proceedings; convene up to two evidentiary hearings on admitted contentions; and tighten the requirements for late-filed issues.

Accelerating and Tailoring Adjudication Schedules
The NRC is proposing to tailor timeframes for hearing requests, contention filings, and contention admissibility decisions for five types of proceedings: license transfer, “highly expedited,” uranium enrichment facilities, most complex, and other proceedings.

• For a license transfer proceeding, hearing requests would be due 20 days from the hearing notice and a decision on contention admissibility would be due 77 days from the hearing notice.
• A “highly expedited proceeding” would encompass certain license amendment applications with short review schedules and focused reviews, such as measurement uncertainty recapture uprate license amendments. The Commission could also choose to designate other proceedings as “highly expedited.” Hearing requests (including contentions) would be due 30 days from the hearing notice, and a decision on contention admissibility would be due 87 days from the hearing notice.
• For a uranium enrichment facility licensing proceeding, hearing requests (including contentions) would be due 60 days from the hearing notice, and the decision on contentions would be due 127 days from the hearing notice.
• “Most complex” proceedings would encompass Part 50 construction permits and initial operating licenses; initial combined licenses where the application does not reference a design certification or a manufacturing license; or a license to construct and/or operate a uranium or fuel cycle facility. Hearing requests would be due 30 days from the hearing notice; contentions would be due 60 days from the hearing notice; and a contention admissibility decision would be due 127 days from the hearing notice
• The category of “other proceedings” would encompass power reactor license renewals, Parth 52 combined licenses that reference a design certification, Part 52 early site permits, license amendment applications, non-power reactor applications, and limited work authorization applications. For these proceedings, hearing requests would be due 30 days after the hearing notice; contentions due 45 days after the hearing notice; and contention admissibility determinations due 112 days from the hearing notice.

The NRC has proposed these tailored filing periods to address the need for timeliness and efficiency in licensing proceedings demanded by the ADVANCE Act and EO 14300, and to reflect the anticipated length and complexity of the respective types of applications.

Bifurcating Standing and Contention Admissibility Determinations in Certain Proceedings, and Related Items
The NRC proposes to bifurcate determinations on standing and contention admissibility in certain proceedings. Under current rules, a petitioner submits a single filing that addresses the petitioner’s legal standing and the admissibility of its proffered contentions. Under the proposed rule, standing and contention admissibility filings would be made separately at different times for the “most complex” and “other” proceedings.

For the “most complex” proceedings, petitioners would be required to submit a hearing request addressing standing 30 days from the hearing notice, with answers to the hearing request due 10 days later, and any reply due 7 days thereafter. The presiding officer would render a decision on the hearing request 20 days after any reply (day 67 from the hearing notice). Contentions would be due 60 days from the hearing notice. This means that the presiding officer could rule that a petitioner does not have standing (and thus deny its hearing request) 7 days after the petitioner submitted its contentions. In such a case, the Statement of Considerations explains that “the petitioner’s proposed contentions would not be further addressed in the adjudicatory proceeding.” The NRC believes that this proposal would save resources by avoiding filing of answers and replies on contentions, holding of oral argument on contentions, and rendering decisions on contentions in those cases where a petitioner failed to demonstrate standing.

For “other” proceedings, the NRC proposes a similar bifurcation in which a hearing request would be due 30 days from the hearing notice, answers due 10 days later, any reply due 7 days thereafter, and a decision on the hearing request 20 days later (67 days later). However, contentions would be due 45 days from the hearing notice, and answers to contentions due 25 days later (day 70). This could result in a ruling that a petitioner does not have standing only three days before answers to its contentions are due.

Relatedly, where standing has been demonstrated by a petitioner, and its contentions are to be further addressed by other parties, the NRC proposes that applicants (and perhaps the NRC staff) address the merits of proposed contentions in their answers, such as by submitting supporting affidavits or other evidence. Petitioners would be allowed to reply with their own additional evidentiary support. The NRC believes that subsequent litigation on the contentions could be conducted “more swiftly” with the additional merits information, and provide the parties with “a better understanding of the positions being taken on the contentions,” allowing for better focused initial testimony and position statements. The NRC believes that this would shorten the evidentiary hearing schedule for admitted contentions.

The NRC also proposes to refine the contention admissibility criteria in two ways. First, when demonstrating that a contention is material (which is currently required under contention admissibility criterion 10 C.F.R. 2.309(f)(1)(iv)), the NRC proposes that the petitioner must include the legal requirement on which the contention is based. This proposal is intended to avoid confusion over the legal basis for the contention, such as whether it seeks to challenge safety versus environmental requirements. Second, when providing sufficient information to show that a genuine dispute exists on a material issue of law or fact, the NRC proposes that the petitioner specify whether the contention is one of omission or adequacy to avoid any lack of clarity on the matter, and the unnecessary expenditure of resources to “cover all the bases” of an unclear contention.

The NRC’s proposed rules would also eliminate discretionary intervention because the NRC is not required to grant party status to those who do not demonstrate standing. The NRC notes that discretionary intervention has rarely been allowed, and its elimination would save time and resources from having to assess such requests.

Tightening Standards for Late-Filed Hearing Requests and Contentions
The “Standard Record Closure Date” is a newly defined term in § 2.4 which represents the point in the proceedings where the record would be closed with respect to new or amended contentions. The Standard Record Closure Date varies based on each type of proceeding and is calculated in § 2.1207.

To ensure that timelines do not drag on, the proposed rule also redefines “good cause” to restrict when timelines can be extended. Under this new definition, extension of time for parties would require “extraordinary” circumstances not within the parties’ control. (Sickness, weather and major holidays are cited as examples.) When an extension threatens to push the adjudication beyond the scheduled completion date, the presiding officer can only grant an extension for “unavoidable and extreme circumstances” and only for the minimum time necessary to accommodate the circumstances.

As stated above, the Standard Record Closure Date introduces a calculated date after which the record is closed to new or amended contentions. New or amended contentions following the date would be treated as requests to reopen the record and must meet the standards in 10 C.F.R. 2.326, which are that the contention must be timely, address a significant issue, and demonstrate that it would likely materially affect the outcome of the proceeding.

Hearing requests, petitions to intervene, and new or amended complaints filed after the deadline must be accompanied by a motion for leave to file. The filing is not considered “pending” before the NRC unless the presiding officer grants the motion upon a showing of good cause. Once the challenge is “pending,” it would then be within the scope of the proceeding.

Two Evidentiary Hearings
The NRC’s proposed rules create two distinct evidentiary hearing phases. Under the previous rules, typically one evidentiary hearing on all admitted safety and environmental contentions would be held. However, the new rules allow for two, non-overlapping evidentiary hearings to be conducted, one for contentions submitted by the initial contentions deadline, and a second for any new or amended contentions filed later in the proceedings.

New or amended contentions submitted after the initial contentions deadline, but prior to the Standard Record Closure Date, must meet the motion to file standard in 10 CFR 2.309(c) rather than the heightened Standard Record Closure Date standard discussed above. The 2.309(c) standard requires showing that: the information upon filing was not previously available, the information upon which the filing is based is materially different from previous information, and the filing was submitted in a timely fashion based on the availability of the subsequent information. However, to avoid delays, the presiding officer must find that there is “good cause” for submitting new or amended contentions after the initial deadline. (Click here for a visual reference of the NRC’s proposed timelines.)

ADDITIONAL ITEMS

Expansion of Subpart L
The NRC proposes to revise and expand the applicability of subpart L to govern the adjudication of admitted contentions in almost all proceedings for the grant, renewal, licensee-initiated amendment, termination, or transfer of licenses or permits. As such, The NRC has proposed eliminating subpart N for lack of use and eliminating subpart M because subpart L is more suitable for license transfer proceedings.

Similarly, proceedings on licenses to construct and operate uranium enrichment facilities would be conducted under subpart L rather than subpart G. The proposed rule states that this change will result in a faster and more streamlined process that still complies with the Administrative Procedure Act’s “on the record” hearing requirements.

Non-Attorney Representation
NRC proposes to revise 10 CFR 2.314(b) to eliminate representation of non-individual entities (such as partnerships, corporations, etc.) by those who are not attorneys. Only an individual would be allowed to appear on his or her own behalf.

Modifications to Discovery and Disclosure
To reduce burdens on parties and support accelerated hearing timelines, the NRC is proposing several changes to disclosure obligations.

First, due to the availability of documents in the ADAMS database and the NRC’s Public Document Room, the NRC proposes eliminating the hearing file requirement under §2.1203. The NRC is also retaining paragraph (d) to specify that no additional forms of discovery will be authorized.

The NRC also proposes eliminating the NRC staff’s disclosure obligations under 10 CFR 2.336. However, staff disclosure obligations would remain in place for proceedings on denials of license applications.

The proposed rules will also codify in §2.336 the practice of excluding from disclosure non-public draft documents that have not been circulated. In addition, parties will not be required to update their disclosures during evidentiary hearings, although the obligation to inform presiding officers of any recent new developments would remain in place.

Initial disclosures under §2.336 would also be shortened from 30 days to 20 days running from the date of an order admitting contentions. In a proceeding on a denial of an application, the 20-day period would run from the order granting a demand for a hearing.